Big Impact Seen In Israel Spy Case
Josh Gerstein - The New York Sun - February 13, 2006
Lawyers for two former pro-Israel lobbyists under indictment for leaking classified information have denounced the prosecution as an assault on the First Amendment and warned that a vast array of policy advocates and journalists could be in jeopardy if the case goes forward.
The two lobbyists, Steven Rosen and Keith Weissman, were fired from their jobs at the American Israel Public Affairs Committee last year as the probe unfolded. A former Pentagon official charged with providing classified information to the pair, Lawrence Franklin, is cooperating with prosecutors after pleading guilty. He was sentenced last month to more than 12 years in prison.
In a brief filed in January and released last week, the lawyers for Messrs. Rosen and Weissman argue that the statute barring unauthorized release of classified material has never been applied to private citizens.
"The breathtaking application of that law to this set of facts breaks new legal ground," the defense team wrote. "There has never been a successful prosecution of an alleged leak by persons outside government persons with no contractual or legal obligation to preserve classified information."
Messrs. Rosen and Weissman are scheduled to go on trial in federal court in Alexandria, Va., on April 25. The indictment charges that they received classified information from Franklin and other officials, and passed that data on to members of the press and agents of a foreign government.
Prosecutors have not offered a public description of the information that was allegedly relayed, nor have they disclosed which reporters or foreign agents were allegedly involved. However, Franklin was the Iran desk officer at the Defense Department and some of the data he has admitted to passing on appear to have pertained to Iranian influence in Iraq. The foreign diplomats who received classified information in the alleged scheme appear to have been Israelis.
In court papers asking that the charges be dismissed, the defense lawyers argue that the prosecution is attempting to criminalize the traditional give and take of information between lobbyists, journalists, and government officials. "This is what members of the media, members of the Washington policy community, lobbyists and members of congressional staffs do perhaps hundreds of times every day," the lawyers wrote. "The exchange of information between members of the government and non-governmental organizations is precisely what policy lobbying (as well as everyday news reporting) is all about."
The prosecution's response to the motion was filed late last month, but has not yet been made public. In an unusual arrangement, most papers filed in the case remain secret for a time while they are reviewed for classified information.
In an interview yesterday, Mr. Weissman's attorney, John Nassikas III, said the prosecution should be of concern to all those who play a role in Washington policy debates. "Hopefully, there will be some resonance out in the community over this," the lawyer said. "We think that the government prosecution is off-base and we're challenging in every way, legally and factually."
However, Mr. Nassikas acknowledged that the defense may face an uphill battle in trying to convince Judge Thomas Ellis III, who is presiding over the case, that the prosecution would inhibit the free exchange of ideas and information vital to American democracy. At Franklin's sentencing last month, the judge expressed no qualms about punishing journalists or others who wind up with classified information and pass it on. "Persons who have unauthorized possession, who come into unauthorized possession of classified information, must abide by the law," Judge Ellis said in remarks first reported by the Jewish Telegraphic Agency. "That applies to academics, lawyers, journalists, professors, whatever."
The brief filed on behalf of Messrs. Rosen and Weissman was co-authored by a conservative Georgetown University law professor and former Justice Department official, Viet Dinh. Mr. Dinh's opposition to the department's stance in this case is notable because he has generally supported aggressive prosecution tactics and was an architect of the 2001 law that broadened the government's anti-terrorism powers, the USA-PATRIOT Act.
"He's obviously an expert on constitutional law issues, and there have been a lot of constitutional law flaws in the government's application of this statute," Mr. Nassikas said. He said Mr. Dinh was enlisted by Mr. Rosen's attorney, Abbe Lowell. Messrs. Lowell and Dinh did not return calls yesterday seeking comment for this story.
The case has drawn criticism from some Jewish activists as well as a journalists' group, the Reporters Committee for Freedom of the Press, which has sought to file an amicus brief on behalf of the two ex-lobbyists.
Legal analysts often distinguish the American legal system's approach toward breaches of classified information from the tack taken in Britain, where the country's Official Secrets Act can be used to prosecute and silence journalists and ordinary citizens who come into possession of sensitive information. In America, there have been repeated, but unsuccessful, efforts to pass a similar statute that would criminalize all leaks of classified information regardless of the harm caused or the intent or identity of the leaker.
In 2000, President Clinton vetoed legislation that would have made the release of any classified information a crime.
"It would be fundamentally unfair for the Justice Department to usurp the province of Congress and create some type of Official Secrets Act through the prosecution of a test case," the defense team argued in their brief.
The brief also quotes a prominent federal prosecutor, Patrick Fitzgerald, about the perils of bringing criminal charges in connection with leaks of classified information. "You should be very careful in applying that law because there are a lot of interests that could be implicated," Mr. Fitzgerald said at a press conference last year discussing his decision not to charge a White House aide, I. Lewis Libby, with leaking a CIA officer's identity. Mr. Libby, who has pleaded not guilty, was charged with perjury and obstruction of justice in the probe.
Details of the defense filing were first reported by an online newsletter, Secrecy News, which is published by the Federation of American Scientists.
Mr. Nassikas declined to say yesterday whether he plans to call journalists as witnesses, an effort which could prompt further legal confrontations. "Neither side has indicated what witnesses will be called at this point. It's clear there are reporters involved in the facts of the case," the attorney said.
In recent months, Messrs. Rosen and Weissman have been at odds with their former employer, Aipac, over payment of legal fees in the case. "That is not resolved," Mr. Nassikas said. He said Mr. Weissman plans to launch a legal defense fund this week to cover costs that Aipac has declined to pick up.
Efforts to reach an Aipac spokesman last night were unsuccessful.