A Case Against Overly Broad & Vague Legislation

First Amendment Issues Raised About Espionage Act

The 1917 Espionage Act is being challenged on the basis of being overly broad, vague and over-reaching in an unconstitutional manner. One would think that the same defense could be used in cases involving the USA Patriot Act (even in its "renewed" form) as well as the legal justifications used in the NSA warrantless wiretapping cases. The only problem with the USA Patriot Act and the NSA spying cases is that everything is held so secretive that the victims of this law and the reach of the Bush administration do not realize that they have been victimized until they are in detention without recourse to the courts... and no access to a jury to decide if the government is too far over the edge of reality.

I predict a lot more issues of this type to arise in defense of charges involving espionage, governmental leaks and terrorism. Our government is so over-reaching that it is creating stumbling blocks to keep it from prosecuting real criminals.

The federal judge overseeing prosecution of two former lobbyists charged with receiving and transmitting national defense information under the 1917 Espionage Act has given the government until today to respond to defense claims that the statute is unconstitutionally vague and overbroad and may violate the First Amendment.

U.S. District Judge T.S. Ellis III ordered the government to provide the additional support for the charges filed last August against Steven J. Rosen and Keith Weissman, former lobbyists for the American Israel Public Affairs Committee (AIPAC). The two were accused of receiving classified information during conversations with government officials, one of whom, then-Pentagon employee Lawrence A. Franklin, warned Weissman that the information he was giving was highly classified.

At a hearing last Friday on the defendants' motion to dismiss the indictments, Ellis directed a series of questions to Assistant U.S. Attorney Kevin DiGregory expressing concern that the government had not dealt with constitutional issues raised by the defense.

"I didn't find your response in writing to match up with the fairly extensive attack by the defendants . . . so I am going to have further briefing," Ellis said. Last January, at the hearing where he sentenced Franklin to 12 years for passing classified information to the two lobbyists, Ellis called attention to the imprecise nature of the almost 90-year-old statute that restricts disclosure of "national defense information" that could harm U.S. interests or help enemies.

Ellis also said he had thought there would be well-established precedent he could follow, since the statute had been around for so long. But it has turned out that Rosen and Weissman are the first nongovernment employees to be indicted under the act for receiving classified information orally and not through documents or other tangible items.

"I think we are a bit in new, uncharted waters and that's why I'm going to consider this matter extremely carefully," Ellis told DiGregory and attorneys Abbe Lowell and John Nassikas, who represent Rosen and Weissman.

The case is drawing the attention of First Amendment attorneys because both Ellis and prosecutors have noted that the two lobbyists -- in receiving and disseminating the information -- are doing what journalists, academics and experts at think tanks do every day.