Chilling free speech

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Beyond the firing of CIA officer Mary O. McCarthy for leaking classified information to the press is a much larger story of the administration's increasing investigation of other such press leaks as a possible prelude to an American version of Britain's stringent Official Secrets Act. In February, CIA Director Porter Goss told the Senate Intelligence Committee of the need for a grand jury investigation including reporters who receive these leaks.

The charge against Miss McCarthy, which she denies, is that she was a source of highly classified information for Dana Priest's report in The Washington Post on CIA secret prisons in Eastern Europe. Miss Priest, a 2006 winner of a Pulitzer award for the story, has been writing about the CIA's "black sites" since late 2002; and Sen. Pat Roberts, chairman of the Senate Intelligence Committee, continually refuses to authorize an investigation of the CIA's violations of American and international laws in its prisons wholly hidden from our rule of law.

Miss Priest is already subject to a Justice Department investigation, as are New York Times reporters James Risen and Eric Lichtblau for their disclosure of the president's secret approval of the National Security Agency's warrantless surveillance of Americans. (Those reporters have also received Pulitzers this year, despite the president's characterization of their reporting as "shameful.")

The administration's position has been clearly stated by FBI spokesman Bill Carter (The Washington Post, April 19): "Under the law, no private person (including journalists) may possess classified documents that were illegally provided to them. These documents remain the property of the government."

The law Mr. Carter cited is this administration's expansion of the Espionage Act of 1917, which is now before the courts in a case that can greatly diminish the First Amendment rights of the press -- and the right of Americans to receive information about such lawless government practices as the CIA's secret interrogation centers and the president's violation of the Foreign Intelligence Surveillance Act in unleashing the National Security Agency.

This espionage case -- United States of America v. Lawrence Anthony Franklin, Steven J. Rosen and Keith Weissman -- is the first in which the federal government is charging violations of the Espionage Act by American citizens -- who are not government officials -- for being involved in what until now have been regarded as First Amendment-protected activities engaged in by hundreds of American journalists.

Messrs. Rosen and Weissman, former staff members of the American Israel Public Affairs Committee (AIPAC) -- who have since been fired -- are accused of receiving classified information from Defense Department analyst Franklin regarding U.S. government Middle East and terrorism strategy. Messrs. Rosen and Weissman are charged with then providing that classified information to an Israeli diplomat -- and a journalist.

Governmentofficial Franklin has pleaded guilty and been sentenced to prison. But defense attorneys for Rosen and Weissman declare: "Never (until now) has a lobbyist, reporter or any other nongovernment employee been charged...for receiving oral information the government alleges to be national-defense material as part of that (accused) person's normal First Amendment-protected activities."

In an amicus brief to the U.S. District Court for the Eastern District of Virginia, the Reporters Committee for the Freedom of the Press (with which I am affiliated) says:

"These charges potentially eviscerate the primary function of journalism -- to gather and publicize information of public concern -- particularly where the most valuable information to the public is information that the government wants to conceal" so that the public cannot "participate in and serve as a check on the government." (That's why the First Amendment's freedom of the press was added to the Constitution in 1791.)

But the judge now hearing this espionage case, T.S. Ellis III, already said in March: "Persons who come into unauthorized possession of classified information must abide by the law. That applies to academics, lawyers, journalists, professors, whatever." Recently, the judge appears to be backing off.

However he decides, and it's uncertain, Steven Aftergood -- head of the Project on Government Secrecy at the Federation of American Scientists -- says: "To make a crime of the kind of conversations Rosen and Weissman had with Franklin over lunch would not be surprising in the People's Republic of China. But it's utterly foreign to the American political system." (This censorship of the press was cut out of the Espionage Act of 1917.)

If the Supreme Court agrees with the Bush administration on this case, we will, as Mr. Aftergood says, have to build many more jails -- and disarm the First Amendment.