The Bush administration scored a major victory Thursday in its efforts to criminally prosecute journalists and others involved in the leaking and reporting of classified information. A federal district court in Virginia refused to dismiss a criminal indictment brought by the Bush Justice Department under the Espionage Act of 1917 against two former employees of the American-Israeli Political Action Committee (AIPAC), who are alleged to have received classified information from a former Bush defense department official, and then passed it on to a journalist and an Israeli diplomat. Background on this extremely important case -- and the way in which it is being used by the Bush administration to enhance their ability to prosecute journalists -- can be found here.
In essence, this is the first time the U.S. Government has ever prosecuted anyone under the Espionage Act who was not a government employee and who did not have a security clearance. What is extraordinary about the prosecution is that the defendants are private citizens who merely received and disseminated classified information from a government employee -- something which investigative journalists, by definition, do every day. The Bush administration contended, and the court today ruled, that such conduct can be the basis for being charged with felony violations of the Espionage Act.
The essence of the district court's ruling (.pdf) today is that the Espionage Act authorizes the federal government to prosecute even private citizens (and therefore, presumably, journalists) who knowingly receive and transmit classified information. As the court put it (p. 53): "the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense."
The court additionally ruled that the imperatives of national security outweigh any First Amendment interests which a citizen might have in publicizing such information. As Secrecy News points out, this ruling would almost certainly expose those who revealed Abu Grahib abuses to criminal prosecution. It also strongly bolsters the Bush administration's ability to prosecute journalists involved in the reporting of the NSA warrantless eavesdropping program and the secret, lawless Eastern European prisons revealed late last year by the Washington Post's Dana Priest.
Numerous Bush supporters have called for criminal prosecution of journalists who publish stories containing classified information. And in the case of the NSA eavesdropping story, Bush's Attorney General, Alberto Gonzales, himself recently suggested that journalists could be prosecuted for writing about that program. The Espionage Act has never previously been used to imprison journalists for stories they publish about the government. But it has long been clear that the Bush administration is actively entertaining the idea of putting journalists in jail, and today's ruling provides them with a potent weapon.