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Espionage Act Overreach

We don’t need a state secrets act.

There was good news for the First Amendment late last month, when a three-judge panel of the Fourth Circuit Court of Appeals ruled that two former lobbyists for the American Israel Public Affairs Committee can use evidence from classified documents in their defense at trial on espionage charges. The ruling provides a golden opportunity for President Obama’s Justice Department to drop this misbegotten case.

The prosecution should never have been brought in the first place, for reasons of law and damage to free speech. In 2005, American Israel Public Affairs Committee staffers Steve Rosen and Keith Weissman were accused of divulging information they learned from Administration officials to journalists as well as officials in the Israeli government.

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The Espionage Act of 1917 was intended to apply to government leakers, but in this case Justice (and original Bush-era prosecutor Paul McNulty) has been attempting to apply it to two men who merely heard such information and passed it on. This is of course precisely what journalists often do, albeit to larger audiences than Messrs. Rosen and Weissman reached. A success in this case would make any journalist who reports classified information, no matter how benign, a potential target of government prosecution.

The U.S. doesn’t have a United Kingdom-style Official Secrets Act, and Justice shouldn’t be allowed to impose one via the backdoor by reinterpreting an old and rarely invoked statute. The good news is that the ruling will make it difficult to marshal enough evidence to convict Messrs. Rosen and Weissman. The case is one of the Bush Justice Department’s misfires, and Attorney General Eric Holder can do the country a favor by dropping it.

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