Rather than approach Congress with a proposal to enact the British Official Secrets Act—a proposal which would certainly be defeated even in the prior Republican-led Congress—Gonzales decided to spin it from whole cloth. He would reconstrue the Espionage Act of 1917 to include the essence of the Official Secrets Act, and he would try to get this interpretation ratified in the Bush Administration's “vest pocket” judicial districts—the Eastern District of Virginia and the Fourth Circuit. The key man for this project was to be Paul J. McNulty, the man he soon picked as his deputy.I'll be paying a lot of attention here to the court case (if it ever takes place) - because the broader investigation is basically the same investigation as Sibel's case.
In May 2005, they had found the perfect case. Lawrence Franklin, a key aide to Undersecretary of Defense for Policy Douglas Feith, passed a classified policy memorandum to two employees of AIPAC, a lobbying group geared to advocate Israeli interests with the U.S. Government. It seems clear that Franklin and the two AIPAC employees had a common object, which was to invite critical public attention to U.S. policy towards Iran.
The case was passed to Paul J. McNulty while he was the U.S. attorney for the Eastern District of Virginia. Even at that point, Virginia's Eastern District had a well-established reputation as the most political U.S. attorney's office in the country. Among McNulty's key cases had been the “American Taliban” John Walker Lindh and the mentally unhinged Moroccan “twentieth hijacker” from 9/11, Zararias Moussaoui. Both cases had been sensationalized in the media. Less well known were the dozen odd cases of contractor abuse emerging from the Abu Ghraib scandal, investigated by the Pentagon's CID, and referred to McNulty. Nothing ever came of those cases; indeed, McNulty made sure of that.
McNulty quickly concluded that the AIPAC case would provide the perfect opportunity for the Gonzales project—converting the Espionage Act into the equivalent of the British Official Secrets Act. The core of the extraordinary theory advanced by McNulty can be found in these words from one of its recent briefs:
The government respectfully submits that an 'ordinary person exercising ordinary common sense' [...] would know that foreign officials, journalists and other persons with no current affiliation with the United States government would not be entitled to receive information related to our national defense.
By this theory, any receipt by an unauthorized person of classified information and correspondence concerning it is converted into an act of espionage, and thus made prosecutable.
The object of this exercise has been broadly misunderstood by many who have followed it—and particularly by Iraq War critics who delight in a perceived slap-down of AIPAC. But this is tragically short-sighted. If the prosecution succeeds, the Bush Administration will have converted the Espionage Act of 1917 into something it was never intended to be: an American copy of the British Official Secrets Act. It is likely to lead quickly to efforts to criminalize journalists dealing with sensitive information in the national security sector, as well as their sources.
Let's imagine America with the Gonzales-McNulty contortion of the law in effect. We'd never know how the Bush Administration came to embrace torture as a tactic in the war on terror. We'd know nothing about the torture-by-proxy system developed with key administration allies such as Jordan, Saudi Arabia, and Yemen—not to mention the system of “blacksites” established by the CIA in Eastern Europe, the Middle East, and Southeast Asia. We wouldn't know that the administration was violating the FISA statute with a massive surveillance program. And to paraphrase Donald Rumsfeld, that's just the known unknowns.
This would be a dream world for Karl Rove and Alberto Gonzales. And a nightmare for the rest of us. And the AIPAC case could, if it succeeds, bring the nation much closer to its realization.
This particular case is difficult to unravel, and it's difficult to pick apart the motivations of the different players - the media, the DoJ, the defense, Larry Franklin, and the court.