A federal judge declined yesterday to throw out the criminal case against two pro-Israel lobbyists accused of violating the Espionage Act, rejecting their argument that the novel prosecution infringed on their constitutional right to free speech.
US District Judge T. S. Ellis III rejected defense efforts to dismiss the indictments against Steven Rosen and Keith Weissman, former employees of the American Israel Public Affairs Committee, or AIPAC.
They are charged in what the government calls a conspiracy to obtain classified information and pass it to members of the media and the Israeli government.
Ellis acknowledged that the case “implicates the core values of the 1st Amendment” and that lobbyists and others in Washington pass along information every day that is “indispensable to the healthy functioning of a representative government.”
But he said Rosen and Weissman — and others outside the government — can be prosecuted if the government feels they disclosed information harmful to national security.
The decision alarmed First Amendment advocates who were already concerned about the unprecedented nature of the case. The lobbyists are the first nongovernment civilians charged under the 1917 espionage statute with verbally receiving and transmitting national defense information.
“This decision is breathtaking. It is a bold new interpretation of the Espionage Act that expands its reach dramatically,” said Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists.
As one basis for his decision, Ellis cited the landmark 1971 Pentagon Papers case, in which the US Supreme Court allowed the New York Times, The Washington Post, and others to publish a secret study of US involvement in Vietnam.
If the Nixon Administration had sought to prosecute the newspapers under the Espionage Act instead of blocking publication, Ellis said, “the result may have been different.”
Legal and privacy experts said Ellis may have opened the door to criminal prosecutions of reporters or newspapers for publishing classified information.
The possibility of such prosecutions has swirled around Washington since The New York Times broke a story last December about the National Security Agency’s surveillance of terrorist-related calls between the United States and abroad.
Kate Martin, director for the Center for National Security Studies in Washington, said the ruling “gives the Justice Department the green light to prosecute reporters and investigate them as potential criminal actors and not simply as witnesses.”
Federal prosecutors declined to comment yesterday.
In court hearings on the defense motion to dismiss the case, they argued that allowing people to verbally disclose sensitive information could harm national security.
Attorney General Alberto Gonzales has suggested publicly that New York Times journalists could be prosecuted for the NSA stories.
And federal authorities are also investigating other possible leaks that led to reports about secret CIA prisons published in The Washington Post, law enforcement and intelligence officials have said.
A federal grand jury in the same suburban Alexandria, Va., courthouse where Ellis released his decision is investigating unauthorized leaks of classified information, according to a subpoena recently disclosed by a fired NSA officer.
In a joint statement, attorneys for Rosen and Weissman said they were “disappointed, but not surprised” at Ellis’s decision, given “the always long odds of having an indictment dismissed before trial.”
They said they were encouraged that Ellis agreed with them that “the mere discussion of foreign policy information with officials of the United States and foreign governments by private citizens” is at the core of First Amendment free speech guarantees.
Rosen and Weissman were indicted last year in US District Court in Alexandria on charges of conspiring to violate the Espionage Act by receiving national defense information and transmitting it to journalists and employees of the Israeli Embassy who were not entitled to receive it.
The topics ranged from the activities of Al Qaeda to information about possible attacks on US forces in Iraq, according to court documents.
Rosen, of Silver Spring, Md., was AIPAC’s director of foreign policy issues and was instrumental in making the committee a formidable political force in Washington.
Weissman, of Bethesda, Md., was a senior analyst.
AIPAC fired the pair last year.
Lawrence Franklin, a former Pentagon analyst who pleaded guilty to passing government secrets to the two lobbyists, has already been sentenced to more than 12 years in prison earlier this year.
The trial of Rosen and Weissman has been delayed several times because of the large amount of classified information involved in the case.
No trial date is set. Globe Newspaper Company