Last summer, when federal prosecutors issued a revised indictment of Lawrence Franklin, the Pentagon official who passed secrets to officials of AIPAC, the pro-Israel lobbying outfit, I noted that this case could lead to the rise of an official secrets act in the United States. Franklin was indicted for leaking classified information to AIPACers Steven Rosen and Keith Weissman, who were themselves indicted for passing along the information they received from Franklin to an Israeli official. I observed that a similar sort of indictment might be brought against Karl Rove in the CIA leak case and wrote,

Journalists don't like these sorts of prosecutions, for it brings us close to an official secrets act (like the one that exists in Britain). If prosecutors chased after government leakers--say those who leaked intelligence showing that the White House's case for war in Iraq was weak--the public would suffer. And the Justice Department's indictment of Rosen and Weissman--nongovernment officials--for passing along classified information is also worrisome for reporters who pass along classified information by publishing and airing stories that contain secret information.

It seems that the Bush administration agrees. As Walter Pincus in The Washington Post is reporting today (based on information first disclosed by Steven Aftergood of the Federation of American Scientists), the Bush Justice Department has filed a brief in the Rosen/Weissman case that states that journalists can indeed be prosecuted under current espionage rules for obtaining and publishing (or posting!) classified information, even though such a step would not be "undertaken lightly":

The Bush administration said that journalists can be prosecuted under current espionage laws for receiving and publishing classified information but that such a step "would raise legitimate and serious issues and would not be undertaken lightly," according to a court filing made public this week.

Steven Aftergood of the Federation of American Scientists, who first disclosed the government filing on his Web site, http://www.fas.org/sgp, said yesterday, "The idea that the government can penalize the receipt of proscribed information, and not just its unauthorized disclosure, is one that characterizes authoritarian societies, not mature democracies."

Bottom-line: Bush administration attorneys say that if the government wants to send journalists to jail for publishing leaked classified information, it can. They may have a correct interpretation of the existing law. But the espionage law they cite has generally not been used in this fashion. (Patrick Fitzgerald indicated last October that he considered filing indictments under this law against government officials who leaked Valerie Wilson's CIA identity--such as Scooter Libby and Karl Rove--but decided not to, citing the difficulty of using the espionage law in this manner.) With three years (minus a month) left for the Bush administration, one has to wonder if it will look for an opportunity to put this legal theory into practice.
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DUBAI, DUBAI, DUBAI. It would be something if Bush's first veto was cast to protect a deal that would allow a state-owned Arab firm (with financial ties to a Bush Cabinet member and another Bush appointee) to manage critical ports in New York, New Jersey, Philadelphia, Baltimore, Miami and New Orleans. People say that this White House is always political and often call Karl Rove a political genius. On the politics, this is a boneheaded move for Bush. He doesn't fund port security adequately (according to virtually any homeland security or port expert you can find), but he uses his veto to hand over control of the ports to Dubai Ports World? Go figure. I wonder if there might be a close House race in the vicinity of any of these ports--probably Miami or New Orleans--that might be affected by Bush's stand-by-your-Arab decision. On the substance, there is a dark side to this hubbub. Opponents are engaged in demagogic exploitation of the Arab connection--even though raising questions about permitting a foreign government (particularly one in that part of the world) to be responsible for security at these ports are legitimate. In any event, Bush has transformed the story line from let's have a good debate on how to best run and secure our ports to will the president stubbornly stick by a decision being blasted by Democrats and Republicans, or will he cave?

Posted by David Corn at February 22, 2006 10:14 AM