Early on, when it came out that Pentagon analyst and Douglas Feith ally Larry Franklin had passed sensitive American intelligence on Iran to Israel via the American Israel Public Affairs Committee, or AIPAC, quite a few of us in the progressive blogosphere were giddy. Finally, the hypocrisy and double-dealing of the Bush administration was going to be exposed. At the very least, this would be the first domino to fall. Franklin was charged and eventually found guilty, just recently being sentenced to nearly 13 years in prison. I still think that's a good thing. He broke the law by leaking classified intelligence to a foreign government. It doesn't get much more illegal than that.
But in a piece posted at Slate, Fred Kaplan makes an interesting case as to why it may not be such a good idea to prosecute the two AIPAC analysts to whom Franklin passed the intel. Going into Kaplan's analysis, I expected not to agree with him. Honestly, for whatever reason, I figured it was going to be a too-broad take on the administration's case that would somehow loop back around to defending Judy Miller, Karl Rove, and Scooter Libby. After digesting this story a bit, I'm pretty sure I was wrong. Kaplan's argument is as solid as it is damning of the administration. Once again, it seems that the Bush administration's unified legal theory of everything is based on the idea that anything the President says is the law of the land.
The section of the indictment titled "Ways and Means of the Conspiracy" finds that Rosen and Weissman
would cultivate relations with Franklin and others and would use their contacts within the U.S. government and elsewhere to gather sensitive information, including classified information, relating to national defense, for subsequent unlawful communication, delivery and transmission to persons not entitled to receive it.
Take a close look at those final words. They're charged with giving classified information not to foreign governments or spies but rather "to persons not entitled to receive it."
This is what journalists do routinely every day. They receive information from insiders, write it up in a story, send it to editors, who publish it in newspapers, magazines, wire services, or on Web sites, all of which are seen by readers who have not been officially authorized to view that classified material.
Rosen and Weissman are indicted as having joined in a "conspiracy" with Franklin--not because they bribed, coerced, or even solicited Franklin for the information (there's no charge that they did that, anyway) but rather because they merely received it.
If they are convicted under this legal theory, the Washington Post's Walter Pincus or The New Yorker's Seymour Hersh could be next. ...
If the White House or the Justice Department wanted to push these restrictive espionage statutes to the max, if they wanted to create an Official Secrets Act in America, the ground is well-plowed for them to do so.
Now, I'm not a lawyer. If this is all way off the mark and Rosen and Weissman can easily be prosecuted without endangering the whole of American journalism, then by all means, they should be. However, under no circumstances am I comfortable with the idea of giving the Bush administration official cover to implement their "because I said so" legal agenda. They're already claiming they have all sorts of extraordinary powers. The last thing they need is actual precedent backing them up.