Espionage and the
First Amendment

Is there a First Amendment right to steal and transmit vital U.S. secrets to a foreign power? Viet Dinh, the intellectual author of the PATRIOT Act – and a rising star among the neoconservative legal theorists who have commandeered the Justice Department in the service of presidential omnipotence – thinks so.

In the latest development in the AIPAC spy case, in which two longtime employees of one of the most powerful lobbies in the Washington are charged with passing classified information to Israeli officials, Dinh has submitted a legal brief [.pdf] that, in so many words, asserts exactly that.

Dinh starts out by citing none other than Patrick J. Fitzgerald, who, at his press conference announcing the indictment of Scooter Libby, explained why he did not prosecute under the terms of the Espionage Act. The context is in response to a question about Valerie Plame’s covert status:

"And all I’ll say is that if national defense information which is involved because her affiliation with the CIA, whether or not she was covert, was classified, if that was intentionally transmitted, that would violate the statute known as Section 793, which is the Espionage Act.

"That is a difficult statute to interpret. It’s a statute you ought to carefully apply.

"I think there are people out there who would argue that you would never use that to prosecute the transmission of classified information, because they think that would convert that statute into what is in England the Official Secrets Act.

"Let me back up. The average American may not appreciate that there’s no law that’s specifically just says, ‘If you give classified information to somebody else, it is a crime.’ There may be an Official Secrets Act in England. There are some narrow statutes, and there is this one statute that has some flexibility in it.

"So there are people who should argue that you should never use that statute because it would become like the Official Secrets Act. I don’t buy that theory, but I do know you should be very careful in applying that law because there are a lot of interests that could be implicated in making sure that you picked the right case to charge that statute."

I have bolded the portions omitted by Dinh, in hopes of underscoring what are really Fitzgerald’s key points. The important phrase here, of course, is "I don’t buy that theory" – and neither, we hope, will the jury in the AIPAC case. Dinh’s brief in favor of dismissing all charges against the AIPAC defendants is basically an argument calling for the abolition of the relevant sections of the Espionage Act. In which case it would be perfectly legal to release documents or hearsay "respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation," as the language of the Act puts it.

Furthermore, the presentation of the citation in its complete context ought to make clear that Dinh is distorting and even reversing not only the true significance of what Fitzgerald said, but also what the special counsel‘s investigation portends. For clearly Fitzgerald was and perhaps still is gunning to get the vice president’s chief of staff – and others in the administration – on violating the same provisions of the Espionage Act of which Rosen and Weissman stand accused. The problem for Fitzgerald is that, as he put it, what Libby and his cohorts have done is throw sand in the umpire’s eyes, preventing investigators from ascertaining the facts in the case and establishing a conspiracy to "out" Plame. No such problem exists for the prosecutors in the AIPAC spy case.

As revealed in the indictment of the AIPAC defendants – Steve Rosen, the lobby’s longtime director, and Keith Weissman, a top policy analyst – the FBI was watching their every move as they milked Pentagon Iran specialist Larry Franklin for every drop of classified information to which he had access, including top-secret intelligence relating to al-Qaeda as well as Iran. The FBI’s counterintelligence unit listened as the conspirators arranged assignations and watched as they engaged in furtive meetings: "On or about March 10, 2003," the indictment informs us,

"Franklin, Rosen, and Weissman met at Union Station early in the morning. In the course of the meeting, the three men moved from one restaurant to another restaurant and then finished the meeting in an empty restaurant."

Hardly the sort of behavior one might expect from a group supposedly engaged in, as Dinh puts it, "a core First Amendment activity" – unless spying is now constitutionally protected. Dinh’s brief characterizes the accused as a couple of public-spirited guys whose only crime is exercising the "public’s right to associate, advocate, and speak in an effort to shape foreign policy." What this fanciful version of events conveniently ignores is the central role played by Israeli "diplomats," including Naor Gilon, the Washington embassy’s chief political officer. Franklin repeatedly met with Gilon and others and handed over classified information, in addition to indirectly transmitting U.S. secrets via the Rosen-Weissman tag team. Neither Gilon, nor any reference to specific foreign officials as described in the indictment, is so much as mentioned in Dinh’s brief.

Dinh goes so far as to cite Attorney General Clark, who, when the relevant sections of the Espionage Act were amended, declared:

"Nobody other than a spy, saboteur, or other person who would weaken the internal security of the nation need have any fear of prosecution."

Rosen and Weissman have been charged with espionage because they are spies and were acting on behalf of a foreign power, just like the Rosenbergs and Alger Hiss before them. They cultivated Franklin, who, convinced that U.S. policy in the Middle East is insufficiently pro-Israel, approached Rosen and Weissman, who put them in touch with Israeli agents. The pair then proceeded to act as a conduit for top-secret information gleaned from Franklin, which was passed directly to the Israelis.

How is it that someone who had a hand in drafting legislation – the PATRIOT Act – that permits the indefinite detention of American citizens, the surveillance of phone calls, e-mail, and other communications on an unprecedented scale, and otherwise represents the most invasive incursion into our civil liberties since the Alien and Sedition Acts, is now posing as a champion of the First Amendment rights of these two spies caught red-handed?

This will have to remain one of the murkiest mysteries of recent times, one that defies all explanation but this one: that this former assistant to Attorney General John Ashcroft and head of the Justice Department’s Office of Legal Policy believes that there ought to be one standard for lobbyists on behalf of a foreign country – in this case, Israel – and another for us hoi polloi who owe no foreign country our allegiance or bias. There is to be one standard for AIPAC and another for the rest of us.

Now, this imputation may seem like an unfair stretch of the facts, but ask yourself this: what if, instead of Rosen and Weissman, the two accused were named Abdullah and Mohammed? And what if the organization they worked for was, say, the Muslim American Political Action Council (MAPAC), and the two of them had been caught handing over sensitive intelligence to employees of the Iranian embassy? One has the right to wonder if Dinh – author of legislation that empowers the government to conduct surveillance of mosques and detain thousands of individuals of Middle Eastern descent, including American citizens – would be quite so forthcoming in his call for dismissing all charges.

Somehow, I doubt it.


An interesting side note: The Franklin-AIPAC indictment dates the time-span of the AIPAC spy conspiracy as being "Between in or about April 1999 and continuing until on or about August 27, 2004." At around this time, in 1998, the U.S. rejected Israeli demands that their citizens be included in the visa waiver program: they would now have to undergo an interview and be fingerprinted. Why the change in policy, coming from the most ostensibly pro-Israel administration in memory? The AIPAC spy case is just the tip of the iceberg, as this UPI dispatch by Richard Sale makes all too clear.

Author: Justin Raimondo

Justin Raimondo passed away on June 27, 2019. He was the co-founder and editorial director of, and was a senior fellow at the Randolph Bourne Institute. He was a contributing editor at The American Conservative, and wrote a monthly column for Chronicles. He was the author of Reclaiming the American Right: The Lost Legacy of the Conservative Movement [Center for Libertarian Studies, 1993; Intercollegiate Studies Institute, 2000], and An Enemy of the State: The Life of Murray N. Rothbard [Prometheus Books, 2000].