In a momentous expansion of the government's authority to regulate public disclosure of national security information, a federal court ruled that even private citizens who do not hold security clearances can be prosecuted for unauthorized receipt and disclosure of classified information.
The ruling (pdf) by Judge T.S. Ellis, III, denied a motion to dismiss the case of two former employees of the American Israel Public Affairs Committee (AIPAC) who were charged under the Espionage Act with illegally receiving and transmitting classified information.
The decision is a major interpretation of the Espionage Act with implications that extend far beyond this particular case.
The Judge ruled that any First Amendment concerns regarding freedom of speech involving national defense information can be superseded by national security considerations.
A pdf of the decision is here.
While this specific case merely involved two former AIPAC officials who leaked classified information, as a precedent it can be used against any person, including journalists, who discloses classified information to persons not entitled to receive it.
This puts a bullseye squarely on NYT reporters Risen and Lichtblau, who broke the illegal NSA wiretap story, and who have been threatened with government prosecution as a result. Previously, the government would have had no legal precedents authorizing such a prosecution, but now it does.
Also with a bullseye is Dana Priest, who broke the story of the secret CIA prisons scattered throughout Eastern Europe. Under this precedent, Abu Gonzalez could prosecute her, even though she is a journalist performing a core First Amendment function.
Simply put, this decision constitutes a clear and present danger to the First Amendment, and a clear and present danger to the public's right to know if their government is breaking the law and using bogus "classified" designations to hide its illegal conduct.
Of course, this is only one Court, and a lower Court at that. But one decision could be all it takes for a Justice Department prosecutor to bring charges in good faith. And this threat of prosecution will act as a sword of damocles poised over the neck of every investigative journalist walking the intelligence beat today.
The solution: elect a Democratic Congress so that we can assure that future Judges respect the First Amendment AND so that we can pass Espionage Act reform that protects the core function of the press, the only profession to be accorded special protections under the Bill of Rights. In this task, we cannot afford to fail.
KEYWORDS: First Amendment
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