Classified Information—AIPAC Leak Investigation

The already-interesting case regarding Steven J. Rosen and Keith Weissman has become even more interesting. As we mentioned at the beginning of the month, District Judge T.S. Ellis III ruled that criminalizing the receipt of classified information is not unconstitutional. Now it seems that he “has ordered an investigation into how reporters learned that [Mr. Rosen and Mr. Weissman] were under federal investigation before they were formally charged.”^[1]

This is likely to add fuel to the fires of those who have been arguing, as we have,^[2] that reporters are likely to begin facing federal criminal charges for receiving and reporting on classified information.

Judge Ellis has “ordered the Justice Department to conduct a leak investigation into whether government employees disclosed detail of the investigation [into the AIPAC lobbyists] to CBS News in 2004.”^[3] His order “denied defense requests to throw out much of the evidence against [Mssrs] Rosen and Weissman, partly because of leaks to the media.”^[4] Prosecutors must report the status of the investigation by September 15, 2006.^[5]

In Judge Ellis’s memorandum opinion,^[6] he noted that “the government sought and obtained orders issued by the Foreign Intelligence Surveillance Court (“FISC”) pursuant to the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. § 1801 et seq., authorizing certain physical searches and electronic surveillance.”^[7] The defendants sought disclosure of the FISA applications, orders, and related materials, but Judge Ellis noted that “on this point, FISA is clear”; disclosure is allowed “only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.”^[8] But Judge Ellis found their arguments to be unpersuasive, and further noted that no court in the Fourth Circuit (and few courts in other circuits) “has found it necessary to disclose FISA materials in order to make a facial determination of legality.”^[9]

The defendants also argued that the FISA surveillance was unlawful as it applied to them, because they argued that the FISC did not have probable cause to believe that the targets of the sanctioned surveillance (Mssrs Rosen and Weissman) were “agents of a foreign power,” and because they argued that there was not proper compliance with the minimization procedures subsequent to the surveillance.^[10] Judge Ellis was unconvinced by these arguments as well, though he was concerned about how effective the minimization procedures really were, which led to his order that an investigation be opened into how the media discovered there was an investigation.^[11]

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[1] Jerry Markon, Leak Investigation Ordered, Washington Post, Aug. 23, 2006.
[2] See our posts on grand jury subpoenas for the reporters who reported on Barry Bonds, and the rhetoric surrounding the prosecution of reporters.
[3] Markon, supra note 1.
[4] Id.
[5] Id.
[6] United States v. Franklin, No. 1:05-cr-00225 (E.D. Va. 2006), Docket Entry 343.
[7] Id. at 2.
[8] Id. at 8-9.
[9] Id. at 9.
[10] Id. at 11.
[11] Id. at 20-22.