Wednesday, April 19, 2006

Disclosure of Classified Information—Journalist’s Personal Effects

The late journalist Jack Anderson and his family have found themselves in the middle of the AIPAC investigation.[1] This investigation, which we mentioned in when former Pentagon analyst Larry Franklin pleaded guilty to giving classified information to an Israeli diplomat and to members of the American Israel Public Affairs Committee, has taken some interesting turns in recent weeks. For example, toward the end of March, “a federal judge … questioned the constitutionality of a law under which two former lobbyists with a pro-Israel group have been charged with receiving and disclosing national defense information.”[2] According to US District Court Judge T.S. Ellis III, the law may be unconstitutionally broad and vague, “especially given its potential impact on First Amendment rights.”[3] This is because, as the defendants—Steven Rosen and Keith Weissman—argue, “the law’s prohibition on receiving and disclosing ‘national defense information,’ even information that is unclassified, is far too broad and vague,” and it criminalizes “conduct that is part and parcel of Washington politics—namely, leaks of classified information.”[4] The government and the defense were told to brief the matter for Judge Ellis by March 31,[5] but at this point there does not seem to be a decision from Judge Ellis.[6]

Jack Anderson and his family come into play because FBI agents called Mr. Anderson’s widow not long after his funeral “express[ing] interest in documents that would aid the government’s case” against the AIPAC lobbyists.[7] They “told the family that they planned to remove from the columnist’s archive—which has yet to be catalogued—any document they came across that was stamped ‘secret’ or ‘confidential.’”[8] Such a thought horrifies Mr. Anderson’s son, Kevin. The FBI also apparently sent agents to Jack Anderson’s biographer, Journalism Professor Mark Feldstein, where they “flashed their badges and said they needed access to the papers,” which were donated, but not formally signed over, to George Washington University.[9] Jack Anderson has the distinction of making President Nixon’s “enemies list,” and Mr. Feldstein says the request is part of the “greatest assault on the news media since the Nixon administration”; the Anderson family is planning on declining the invitation to cooperate.[10] They are especially skeptical of the timing, since the AIPAC investigation has been under way for five years, and they suspect that the real motivation is to remove potentially damaging documents before they become public[11] especially considering that Mr. Anderson suffered from Parkinson’s Disease for the last 15 years of his life, so the likelihood of him receiving anything related to AIPAC is very low.[12]

Assuming that the family will refuse to cooperate with the FBI’s request, the government can try to subpoena the documents under Rule 17 of the Federal Rules of Criminal Procedure. The subpoena must state the court’s name and the title of the proceeding, include the seal of the court,[13] and order the witness to produce any books, papers, documents, data, or other objects the subpoena designates.[14] However, when the items arrive, the court may permit the parties and their attorneys to inspect all or part of them.[15] Furthermore, if compliance would be unreasonable or oppressive, the court may quash or modify the subpoena on a motion which is made promptly.[16]


[1] Mark Sherman, , Associated Press (via Monterey Herald), Apr. 19, 2006.
[2] See Matthew Barakat, , Associated Press (via PhillyBurbs.com), Mar. 24, 2006.
[3] Id.
[4] Id.
[5] Id.
[6] See United States v. Franklin, et al., No. 1:05-cr-00225 (E.D. Va. 2006) (available through PACER).
[7] Sherman, supra note 1.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Scott Carlson, , Chronicle of Higher Education, Apr. 18, 2006.
[13] FRCrP 17(a).
[14] Id. 17(c)(1).
[15] Id. 17(c)(2).
[16] Id. 17(d).

posted by McNabb Associates, P.C. @ 12:55 PM