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I~aq. The foreign diplomats~o received classified information in the alleged scheme
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Ii a~;>pear to have been Israelis.
In court papers asking that the charges be dismissed, the defense lawyers argue that the
prosecution is attempting to criminalize the traditional give and take of information
b-etween lobbyists, journalists, and government, officials. "This is what. members ot the
media, members of the Washington policy community, lobbyists ~nd members of congressional
staffs do perhaps hundreds of times every day, II the lawyers wrote. liThe exchange of
informa~ion between members of, the government and non-governmental organizations is
p,recisely what policy lobbying (as well as everyday news reporting) is all about. II
The prosecution's response to the motion·was filed late last. month, but. has not yet been
made public. In an unusual arrangement, mos~ papers filed in the case remain secret for a
time while they are reviewed for classified information.
In an interview yesterday, Mr. Weissman's attorney, John Nassikas III, said the
p,rosecution should be of concern to all those who play a role in Washington policy
debates. IIHopefully, there will be some resonance out, in the community over this," the
l,awyer said. "We think that the government prosecution is off-base and we're challenging
in every way, legally and factual·ly. II
H,owever, Mr. Nassikas acknowledged that the defense may face an uphill battle in trying to
c,onvince Judge Thomas Ellis III, who is presiding over the case, that the prosecution
would jnhibit the free exchange of ideas and information vital to American democracy. At
Frank~in's sentencing last month, the jUdge expressed no qualms abou~ punishing
j,ournali:5ts or others who wind up with classified information and pass it. on. IIPersons who
~ave ,unauthorized possession, who come into unauthorized possession of classified
information, must abide by the law," Judge Ellis said in remarks first reported by the
~ewish Telegraphi~Agency. ,iThat applies to academics, lawyers, journalists, professors,
whatever. II
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The brief filed on behalf of Messrs. Rosen and Weissman was co-authored by a conservative
Georgetown University law professor and for:mer Justice Department official, Viet Dinh. 'Mr.
Dinh's opposition t~ th~ department's stance in this case is notable because he has #
generally supported aggressive prosecution tactics and was an architect of the 2001 law
that broadened the government's anti-terrorism powers, the USA-PATRIOT Act.
"He's obviously an ~xpert on constitutional law issues, and there have been a-lot of
constitutional law flaws in the government's application of this statute," Mr. Nassikas
said. He said Mr. Dinh was enlisted by Mr. Rose~'s attorney, Abbe Lowell. Messrs. Lowell
and Dinh did not ~eturn calls yesterday seeking comment for this story.
The case has drawn criticism from some Jewish activists as well as a journalists' group,
the Reporters Committee for Freedom of the"Press, which has sought to file an amicus brief
on behalf of the two eX-lobbyists.
Legal analysts often distinguish the American .lega~ system's approach toward breaches.of
classified information fro~ t~e tack taken in Britain, where the country's Official
Secrets Act can be used to prosecute and silence journalists and ordinary citizens who
come into possession of sensitive infor:mation. In America, the~e have 'been repeated, but
unsuccessful, efforts to pass a similar statute that would crimdnalize all leaks of
classified information regardless of the harm caused or the intent or identity of the
leaker.
In 2000, President Clinton vetoed ~egislation that would have made the release ot any
classified information a crime.
lilt would be fundamentally unfair for the Justice Department to usurp the province of
Co~gress and create some type of Official Secrets Act through the prosecution of a test
case," the defense team argued in their brief.
The brief also quotes a prominent federal prosecutor, Patrick Fitzgerald, about the perils
of bringing criminal charges in connection with leaks' o~ classified information. "You
sho~ld be ver.y careful in applying that law because there are a lot. ·of interests that
c,ould '.be imp~i.cated," Mr. Fitzgerald said at a press conference last. year discussing his
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