The Rosen/Weisman Prosecution: A National Disgrace
- Rosen and Weissman have been indicted under an extremely obscure and little-used statute, the Espionage Act of 1917. This law has never been used before to bring criminal charges against persons who were not employees of the U.S. government. In view of the unprecedented nature of the indictment, the presiding judge in the case, Thomas Ellis III, agreed to entertain a defense motion challenging the constitutionality of the indictment. He remarked that "we are on uncharted legal ground here."
- While the indictment does claim that Rosen and Weissman disseminated information learned from government officials, some of it allegedly classified, it never says what the information was, or how its disclosure could possibly have harmed the United States. The information is characterized only in the vaguest and most general possible way, or is not characterized at all except as "classified." In authentic espionage cases, the government always discloses a considerable amount of information about what was disclosed by the alleged spies to a foreign government, and how that information could have harmed, or actually did harm, the United States.
For example, in the case of former FBI agent Robert Hanssen, the government said that Hanssen had disclosed the identities of Russians working for American intelligence in the Soviet Union, who were promptly executed by the Russians. In the case of John Walker, the defendant, a Navy sailor, was accused of revealing the Navy's most secret internal codes to the Russians-an action that could have enabled the Russians to destroy hundreds of American ships and kill thousands of American naval personnel, and to win a war against the United States.
In the infamous Rosenberg case, Julius Rosenberg was accused of helping to give the Russians information about the United States' ultra-secret nuclear bomb project during World War II. A government witness even drew a diagram describing the technical information about the nuclear bomb's trigger mechanism that he said had been given to a Russian agent by Rosenberg's brother-in-law. This diagram, containing sensitive technical information about the bomb, was placed in evidence as an exhibit in open court.
The list could go on and on of cases in which the government gave the public a clear idea of what the information was that alleged spies disclosed to foreign countries, some of them hostile to the United States, and how this information could have, or actually did, harm our country. The government's refusal to reveal any specifics at all about the nature of information supposedly disclosed by Rosen and Weissman, or how its disclosure could possibly have harmed the United States, raises grave doubts the integrity and legitimacy of this prosecution.
The judge in the case, Thomas Ellis III, took note of this issue in response to a defense motion to dismiss the case; he ruled that the prosecution could proceed, but only if the government could prove that the information disclosed by the defendants had done harm to the United States. The government protested this decision and demanded that the judge reconsider it-to his considerable annoyance!
- In the course of pre-trial proceedings, the government sought to have the judge retroactively redefine a document that the government's own indictment described as "unclassified" as having been "classified." Here too, Judge Ellis rejected the governments' request with some impatience.
- At least four U.S. government officials are described in the indictment as having given Rosen and Weissman some of the information that they supposedly passed on to Israelis or American journalists. Yet these officials not only have not been charged with anything, they are not even named in the indictment, instead being only identified by such code expressions as "USG-1" and "USG-2." If the information that they disclosed to Rosen and Weisman was really so hush-hush that its disclosure to a foreign government would damage U.S. national security, why weren't these officials charged along with them?
Eventually, the press (not the government) "outed" two of these officials. One is David Satterfield, then Deputy Assistant Secretary of State for Middle Eastern Affairs, and now America's second highest-ranking diplomat at the U.S. embassy Iraq. (The public still has not been told who the other two government official informants, described only as Defense Department employees, were.)
Surely it is an intolerable act of discrimination that the man who was the source of classified information that supposedly reached a foreign embassy continues to occupy a position of great power and trust within the U.S. government, with continued full access to the most sensitive classified documents, while the individuals to whom he allegedly gave the information face a relentless prosecution, which has already cost them $4 million in legal bills. Does the government really believe that the information supposedly disseminated by Rosen and Weissman could have been damaging to U.S. interests? If it really believed this, it would certainly not continue to employ Satterfield in such a sensitive position of trust and power in Iraq.
- By the same token, the individuals to whom Rosen and Weissman supposedly gave the classified information, and who may have passed it on to others, including the public, also are not charged with anything. The journalists whom the indictment says were given hush-hush information by the two AIPAC execs are not only not named, the indictment does not even say how many of them were briefed by Rosen and Weissman.
It identifies only one of the news agencies that received the information-NBC news. At the same time, it claims that NBC broadcast some of this information-which would have made it available to enemies of the United States as well as Israel, if it were actually damaging to the United States. Another individual to whom the AIPAC men supposedly conveyed secret information is described only as an executive of a "think tank." He is quoted as saying that he would "act on" the information; but again the indictment takes no action against him and does not even name him. Here, too, the government's failure to charge numerous other individuals who were involved in the receipt and dissemination of the supposedly secret information, raises grave doubts as to its good faith in launching the prosecution.
- The one government official who was indicted along with Rosen and Weissman is Larry Franklin, a low-ranking analyst of Iranian affairs for the Defense Department. Franklin was accused of sharing information about "the internal deliberations of the United States government" about an unnamed "Middle Eastern country" (presumably Iran) with the AIPAC executives and diplomats of "another Middle Eastern country" (presumably Israel).
Without the financial resources to mount a defense against the government, Franklin reluctantly agreed to plead guilty and testify against his fellow defendants. For his cooperation, the government "rewarded" him with a twelve-year jail sentence! But by all accounts, Franklin's only motive for his actions was to spur the U.S. government to take strong action against Iran's nuclear bomb development program and other hostile actions against the United States. He found that his superiors in the Defense Department, and the White House were ignoring his warnings about the threat from Iran. Naively, he hoped that AIPAC and/or Israel might have the "clout" with the U.S. government than he lacked, and might be able to persuade the U.S. to take the Iranian threat more seriously. Franklin was never an Israeli agent and never took a cent from Israel. He is a Gentile and not even especially pro-Israel. That such an obviously patriotic American should be given such a long jail sentence for trying to protect his country from a hostile foreign power-which was his job as a defense department analyst-makes no sense.
- Although Franklin was fired by the Defense Department when it was first disclosed that he was the target of an FBI investigation, the Defense Department later rehired him, albeit with a lower security clearance, while the investigation continued. His employment by Defense even continued for a time following his indictment. If anyone at the Department of Defense had really believed the Franklin had compromised U.S. national security through his conversations with Rosen, Weissman, and Israeli diplomats, this continued employment would have been inconceivable.
- The U.S. government never lodged a complaint with the Israeli government about the supposed receipt of classified U.S. information by Israeli diplomats. Such protests, usually very stiffly worded, are always lodged in genuine espionage cases. Neither did the USG ever demand the recall of the Israeli diplomats who supposedly received classified U.S. information from the three American diplomats-again a departure from normal procedure in espionage cases.
Israeli embassy political advisor Naor Gilon, the Israeli diplomat reported by the press to have talked most frequently about "secret" matters with the three American defendants, did retire from his position "for personal reasons" in 2005, around the time of the indictment. However, he returned to Washington in December of last year as a member of an Israeli delegation to a joint Israeli-American task force for strategic planning to deal with the Iranian nuclear threat. The U.S government would certainly not have accepted Gilon as a member of such a super-sensitive joint task force if they thought he had spied on the U.S.
Israeli ambassador the United States Danny Ayalon, who is also alleged to have discussed "classified" matters with the defendants, has just completed his full five-year term in his position without incident in November 2006. He maintained cordial relations with President Bush, Vice President Cheney, Secretary of State Condeleeza Rice and other senior U.S. officials throughout his term, and had a friendly farewell meeting with the President and Vice President before leaving Washington. This, too, would not have been possible if the U.S. government had suspected him of espionage against the United States.
- At one point in the investigation, the Justice Department did ask Israel to allow it to question the three Israeli diplomats alleged to have had conversations with the three American defendants. Jerusalem agreed that their diplomats could be questioned by U.S. Justice Department lawyers in writing. But no written questions for the diplomats ever arrived! In fact, when theattorneys for the defendants sought permission from the Judge Ellis to take depositions from the Israeli diplomats, the Justice Department opposed the request! All of this strongly suggests that the government does not actually believe that anything Rosen, Weissman or Franklin may have told the Israelis could possibly compromise American security.
- Both the Washington Post and the New York Times have admitted publicly that they frequently receive leaked classified information from government officials and that they frequently publish such information. They claim that the other major news agencies also receive such information from the government, creating competition as to who will publish this information first and putting pressure on them to publish the classified information before rivals do. Both papers have publicly proclaimed that they consider it a matter for their sole discretion, without government interference, whether to publish classified information or not. The two newspapers even received Pulitzer prizes in 2005 for publishing top-secret information.
- The Federation of American Scientists has protested the indictment of Rosen and Franklin as a threat to their own work in monitoring nuclear proliferation around the world. The Federation relies on classified data informally provided to it by government officials to monitor this very dangerous phenomenon. The Reporters Committee for Press Freedom has denounced the prosecution as a threat to freedom of the press. Even the liberal Washington Post and Village Voice columnist Nat Hentoff, neither of them special friends of Israel, have denounced the prosecution for the same reason.
Most significantly, Viet Dinh, an American lawyer of Vietnamese ancestry, and the former Justice Department official who is the principal author of the Patriot Act, which was pushed through Congress by President Bush as a means of facilitating the war on terror, has filed a brief with the court arguing that the prosecution of Rosen and Weissman violates the constitutional protection for freedom of the press. His brief is significant, because the Patriot Act that he authored allows the government considerable latitude in prosecuting individuals who pose a threat to our national security. Dinh is no friend of spies or terrorists; yet this prosecution, and the vaguely worded law passed by Congress in 1917 on which it is based, go too far for him.
How has the rest of the organized American Jewish community responded to the plight of Steven Rosen and Keith Weissman, two patriotic Americans who sought to protect the national security of both America and Israel? There has been some private fund raising for them, but they hardly a cause célèbre.