Full Release - IRmep

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!. The defense memorandum was filed under seal in U.S. District Court for the Eastern
'District ofVirginia on Jan.19 and, according to Rosen's attorney, Abbe D. Lowell, was
unsealed last Thursday at the request ofthe defense. In the 90 years since the act was
originally drafted, according to the Dinh memorandum, "there have been ·no reported
prosecutions ofpersons outside government for repeating information tha~ they obtained
verbally, and were thus unable to know conclusively whether or to what extent that
information could be repeated." Dinh, who has returned to teaching at Georgetown
University Law Center after leaving the Bush administration, said in an interview
yesterday that the espionage statute is very broad and vague in its language and normally
requires "bad faith" on the part ofthose in violation.
The memorandum quotes Patrick J. Fitzgerald, special counsel in the CIA leak case, who
said in a news conference that the espionage law is "a difficult statute to interpret" and
"a statute you ought to carefully apply." "Prosecuting the leakee for an oral presentation
••• presents a novel case because the listener has no evident indicia for knowing what
relates to national defense," Dinh said. He noted that he could find only one case in which
the disclosed information may have been made only orally. In that case, an Army
intelligence officer leaked defense inforptation and only he was charged. He was
acquitted, "indicating that the government should have thought twice before now trying
to stretch the statute even further."
The memorandum notes that the statute contemplates the passing ofphysical evidence,
such as documents with classifi.cation stamped not just on each page but also alongside
each paragraph. One section ofthe law says that a person who has improperly received a
classified leak commits a crime if"he willfully retains the same and fails to deliver it to
the officer or employee entitled to receive it." The memorandum says that the provision
cannot cover orally received information since recipients tt 'retain' it in memory and it is
physically impossible to 'deliver' it back to the United States."
Another reason for dismissing the case, according to the memorandum, is that "ifthe
instant indictment and theory ofprosecution are allowed to stand, lobbyists who seek
information prior to its official publication date and reporters publishing what they learn
can be charged with violating section 793" ofthe espionage statute. The memorandum
also points out that"on many occasions, the media boldly state that they have classified
material," which they publish after soliciting and receiving leaks.
Lowell said that his client and Weissman "have been indicted as felons for doing far lessthan
for what reporters have been awarded Pulitzer Prizes." In the memorandum,
reference is made to Washington Post reporter Dana Priest's articles on CIA secret
prisons for alleged terrorists, for which a leak investigation is underway. FBI agents are
also investigating the leak to the New York Times about the National Security Agen~y's
domestic surveillance program. .
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