U.S. District Judge T.S. Ellis III ruled that the 1917 Espionage Act is not unconstitutionally broad and vague when it seeks to bar receipt or disclosure of "information related to the national defense."
The indictment against Steven Rosen of Silver Spring, Md., and Keith Weissman of Bethesda, Md., alleges that they conspired to obtain classified reports on issues relevant to American policy, including the al Qaeda terror network; the bombing of the Khobar Towers dormitory in Saudi Arabia, which killed 19 U.S. Air Force personnel; and U.S. policy in Iran.
Rosen and Weissman, former lobbyists for the American Israel Public Affairs Committee, are accused of sharing the information with reporters and foreign diplomats. No trial date has been set.
Lawyers for the pair also had argued that prosecutors were out of bounds for using the law to prosecute lobbyists who in the normal course of business discuss policy issues with government officials.
The defense argued that Rosen and Weissman should not be held responsible if government officials leak sensitive or classified information to them.
Ellis, a judge in U.S. District Court in Alexandria, Va., sharply questioned prosecutors during a hearing in March about their use of the statute and hinted that he had reservations about the law's constitutionality on free-speech grounds.
In the 68-page opinion issued Thursday, Ellis wrote that Congress had struck a balance between the constitutionally guaranteed rights of individuals to receive and share information and the government's need to protect national security.
Abbe Lowell and John Nassikas, lawyers for Rosen and Weissman, respectively, issued a joint statement saying they were disappointed but not necessarily surprised by the ruling. They acknowledged facing "long odds of having an indictment dismissed before trial, particularly when the government invokes the specter of 'national security.'"
In his ruling, Ellis wrote that the government must prove that the "the national security is genuinely (put) at risk" by Rosen and Weissman's actions and that government officials did not authorize leaking information to the pair.
The defense has sought to subpoena Secretary of State Condoleezza Rice and other top government officials. The lawyers claim that Rice leaked information identical to what Rosen and Weissman obtained and passed to others. Rice and prosecutors deny the claim.
A former Defense Department official, Lawrence A. Franklin, has already pleaded guilty to providing Rosen and Weissman classified defense information. Franklin was sentenced to more than 12 years in prison.
Franklin said he believed the United States was insufficiently concerned about the threat posed by Iran and hoped that leaking information might eventually provoke the National Security Council to take a different course of action.
The 1917 law has never before been used to prosecute lobbyists. The case has been watched closely not only by lobbyists but also by journalists, who fear that a broad interpretation of the Espionage Act could lead to prosecutions of journalists who report on classified information.
"You can't cover virtually anything in Washington without running into classified information," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. "There is no question that important stories with great public value would be jeopardized" if reporters were subject to similar prosecution.