November 21, 2009
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May 05, 2009

Unfinished Business in the AIPAC case

By Clarice Feldman
Friday the Department of Justice indicated to the court that it would be filing a motion to dismiss the case it had brought against two former officials of AIPAC (American Israel Public Affairs Committee).

The landscape of this case has changed significantly since it was first brought," the government motion stated, referring to several court rulings against the prosecution, which drastically increased its burden of proof, while granting defense motions to introduce previously classified information and to call influential expert witnesses for the defense.

"In addition to adjusting to the requirement of meeting an unexpectedly higher evidentiary threshold in order to prevail at trial, the Government must also assess the nature, quality, and quantity of evidence - including information relevant to prosecution and defense theories expected at trial."

"In the proper discharge of our duties and obligations, we have re-evaluated the case based on the present context and circumstances, and determined that it is in the public interest to dismiss the pending superseding indictment," prosecutors wrote in their May 1 motion.

The only surprising thing about the Department's action is that it took so long and so many court losses, on evidentiary matters and relating to the burden of proof the government bears in cases brought under the antiquated 1917 Espionage Act, before the Department undertook to take the case off life support.      

Initially brought under Attorney General Ashcroft, apparently at the instigation of the infamous FBI counter intelligence chief  David Szady who saw a Pollard behind every American supporter of Israel and no Chinese spies anywhere (even as his friends in the Bureau were literally in bed with one), it was continued under his successor Alberto Gonzales.

The prosecution was initiated even though the far easier case in which the New York Times willfully disclosed super sensitive communications intelligence operations (the NSA program) in clear violation of Section 798 of Title 18 (which has a different legal threshold of proof of intent) did not result in proceedings against the paper or its editors.

It was continued despite some glaringly obvious shortcomings and others that became evident during the pre-trial proceedings.

To my knowledge, it was the first case brought under the already creaky 1917 Act that prosecuted people who were not agents of a foreign government for receiving and disseminating classified information, people who had no official obligation to maintain the security of classified information and to whom no document had been passed.

Gabriel Schoenfeld was the foremost critic -- from the inception of the case -- of the government's willful blurring of the distinction between espionage and lobbying:

...the Justice Department has irresponsibly confused the distinction between spying and lobbying. Keith Weissman and Steven J. Rosen, two former employees of AIPAC, the pro-Israel lobbying organization, are charged with unlawfully receiving and transmitting classified national-defense information. The stakes are high. The Pentagon official, Lawrence Franklin, who illicitly furnished the two men with secrets, and then participated in an FBI sting operation against them, has pleaded guilty for his part in the affair and was sentenced by federal judge T.S. Ellis III to more than 12 years in federal prison.

This past Friday, the same judge decided a pivotal preliminary issue in the Weismann-Rosen case. The defense has subpoenaed 20 present and former administration officials to appear as witnesses for its side, including Elliott Abrams, Richard Armitage, Douglas Feith, Dennis Ross, Paul Wolfowitz, Stephen Hadley and Condoleezza Rice. The idea is to use their testimony to demonstrate that their clients had every reason to believe that what Mr. Franklin told them in conversation -- no classified documents ever changed hands in this case -- was part and parcel of the normal back-channel method by which the U.S. government sometimes conveys information to the media and/or to allied countries, in this case, to Israel.

Prosecutors have resisted this contention and moved to quash the subpoenas to almost all of the officials. On Friday, Judge Ellis ruled against the prosecutors. The defendants, he wrote in his opinion, "claim that AIPAC played an important role in U.S. foreign-policy development." If true, he continued, the "government's use of AIPAC for 'back channel' purposes may serve to exculpate defendants by negating the criminal states of mind the government must prove to convict defendants of the charged offenses."

Schoenfeld observed -- correctly I think -- that these witnesses would concede under oath that "at one or another juncture in the course of their careers, they were authorized, as a means of promoting the national interest, to disclose classified information to individuals outside of government, including, on some occasions, to officials at AIPAC itself."

It's the way the government has operated for the forty some decades I've lived in the District of Columbia and observed its workings. And when people like Schoenfeld and Michael Ledeen noted this was standard procedure no one disputed it.

The decision to dismiss the case seems to have been taken after the sort of full in house review which preceded a similar decision to dismiss the case against former Senator Ted Stevens for prosecutorial misconduct.

DoJ whack-a mole

The defendants in both cases are grateful for even tardy justice. But I hope it doesn't end there.

Both AIPAC and the named defendants have suffered great loss of reputation and personal fortunes (reportedly $4 million in legal fees alone in the AIPAC case) as a result of these proceedings. Stevens lost his senatorial position and his party was denied a key vote as a result of the Justice Department actions.

Defendant Steve Rosen states in correspondence to me:

1) thank God we live in a country where the courts can correct this kind of injustice.  In many countries, you would be railroaded on the basis of false charges like these.

(2) There needs to be an investigation about how the anti-Israel faction in counter-intelligence was able to take baseless charges like these so far.

Rosen's suggestion of an investigation is mirrored by the Wall Street Journal which observes:

The core of the prosecution's case concerns a memo sent to the men from Defense Department analyst Larry Franklin -- now serving a 12-year prison sentence -- about internal White House deliberations on Iran policy. The government also used Mr. Franklin (whose main offense was taking classified documents home) to plant an apparently bogus story with Mr. Weismann claiming that American and Israeli lives were in imminent danger.

None of this should have amounted to much, and certainly not criminal indictments under the archaic 1917 Espionage Act. Reporting on White House policy deliberation is the daily bread of any Washington reporter: If the offense were really criminal, half the Beltway press corps could be indicted. Mr. Franklin's mishandling of classified documents deserved sanction, but 12 years in jail is far worse than the misdemeanor and fine meted out to former National Security Adviser Sandy Berger for stuffing secret documents in his clothing. As for the planted story, putting the defendants to a moral quandary -- share classified information and save lives; keep it secret and let people die -- is the worst form of entrapment.[snip]

Mr. Holder should also re-examine the AIPAC case from start to finish. The real scandal in this case starts with the attempted criminalization of policy differences and legitimate lobbying, and ends up in the wiretapping of Congress and the wrecked careers of Messrs. Rosen, Weissman and Franklin. These smacks of abuse of power, and somebody at Justice should be held to account.

I'd go further. It has been my belief from the misbegotten case against Scooter Libby that the Department of Justice was never properly administered under the prior administration. John  Ashcroft seemed far too timid to deal with the day-to-day controversial calls his office needed to make. Alberto Gonzales seemed never to find his stride and often seemed over his head in this slot.

Attorney General Holder should take this opportunity to reinstitute the kind of strict reviews the Department once effectively had in place over criminal prosecutions to avoid the hardships to innocent people and organizations suffered by AIPAC, Rosen, Weismann and Stevens.

The Attorney General is one of the most important positions in any administration and the DoJ one of the most significant departments. It's time it acted according to law and common sense again before it does any more damage to itself and other innocent citizens.

See also: The AIPAC Spy Case, RIP by Clarice Feldman
on "Unfinished Business in the AIPAC case"
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