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Legislating Secrecy from the Bench

An alarming case of judicial activism just in from Steve "James Brown" Aftergood at the Federation of American Scientists' Project on Government Secrecy follows below. This ruling would dramatically expand the risks for journalists and government oversight investigators.

POGO has been accused of possessing classified and sensitive security information several times in retaliation for disclosing information which embarrassed government bureaucrats. In one case, the Air Force retroactively classified a document which proved the existence of the super-secret Area 51 then used its classification as a pretext to attempt to take the organizations files. In another example, the Nuclear Regulatory Commission threatened POGO with criminal prosecution after the New York Times published an article concerning our criticisms of the agency's nuclear security oversight. But, the agency refused to identify what information in our letter was considered sensitive, putting us in a silenced catch-22 of being unable to publish the letter and unable to fix the letter. This kind of ruling may also have a chilling effect on attempts to challenge government secrecy like our recently successful lawsuit against former Attorney General John Ashcroft over the inappropriate classification of publicly available information.

CLASSIFICATION LAWS APPLY TO EVERYONE, JUDGE SAYS

In a startling pronouncement that can only heighten tensions between the press and the government, a federal judge said last week that the laws governing classified information apply to anyone who is in receipt of such information, including reporters who are the recipients of "leaks."

"Persons who have unauthorized possession, who come into unauthorized possession of classified information, must abide by the law," said Judge T.S. Ellis III. "That applies to academics, lawyers, journalists, professors, whatever."

Judge Ellis's statement came at the conclusion of a sentencing hearing for Lawrence Franklin, the former Pentagon analyst who was charged along with two former officials of the American Israel Public Affairs Committee (AIPAC) with felony violations of the Espionage Act.

The extraordinary claim that mere possession of classified information triggers legal obligations leads to absurd conclusions, particularly since anyone who reads the daily newspaper comes into "unauthorized possession of classified information."

More importantly, it serves to discourage investigative reporting of illegal government activities that happen to be classified.

The provisions of the Espionage Act to which Judge Ellis was referring are "in many respects incomprehensible," wrote Harold Edgar and Benno C. Schmidt, Jr. in their definitive 1973 study "The Espionage Statutes and Publication of Defense Information," Columbia Law Review, May 1973, vol. 73, pp. 929-1087 (Secrecy News, 10/19/05).

Judge Ellis's statement was first reported in "Sentence in Franklin case sends chill through free-speech community" by Ron Kampeas, Jewish Telegraphic Agency, January 24:

Lawrence A. Franklin was sentenced January 20 on three felony counts: conspiracy to communicate national defense information to persons not entitled to receive it; conspiracy to communicate classified information to an agent of a foreign government; and the unlawful retention of national defense information. See this January 20 news release from the Department of Justice here.

The prosecution of the two former AIPAC officials who were charged with Franklin, Steve Rosen and Keith Weissman, raises press freedom issues with even greater urgency since neither of them, unlike Franklin, held a security clearance.

Their attorneys last week filed motions to dismiss the case, but those motions are sealed pending a security review.

By: Scott H. Amey, J.D.
General Counsel, POGO

scott amey Scott Amey is General Counsel for the Project On Government Oversight. Some of Scott's investigations center on contract oversight, human trafficking, the revolving door, and ethics issues.

Topics: Open Government

Related Content: Defense, Government Secrecy, Nevada Test Site

Authors: Scott H. Amey, J.D.

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