WASHINGTON – What started out as a low-grade spy thriller, complete with furtive clandestine meetings over classified information in the heart of the nation's capital, has turned into a ponderous tale of legal delays and a debate over whether the government is trying to criminalize free speech.
Former American Israel Public Affairs Committee (AIPAC) employees Steven J. Rosen and Keith Weissman were charged in 2005 with passing along to media, colleagues and Israeli officials in the U.S. classified intelligence gleaned from now-convicted former Pentagon Iran analyst Larry Franklin.
The federal case, which is being handled by the U.S. District Court for the Eastern District of Virginia, was supposed to go to trial on June 4, but was postponed until the fall, the latest of several delays. Sources close to the case suggest the government has been forced to rethink its strategy after Judge T.S. Ellis ruled in April that the government could not keep much of its evidence against the defendants closed to the public. The judge was not swayed by the government's concern that classified and sensitive information would reach the public domain.
Ellis said effectively cloaking a substantial portion of the trial would violate the defendants' and public's right to an open trial. The ruling was lauded not only by free speech advocates and news organizations, but prominent Jewish groups that had until now, largely held back from weighing in on Rosen or Weissman's behalf.
"Closing the trial would inappropriately shroud the government's case in a veil of secrecy," said David Harris, director of the American Jewish Committee. "We commend Judge Ellis for insisting that the prosecution has an obligation to either expeditiously go forward with this case in a public venue open to all or, after nearly two years, re-evaluate the bases for its charges."
But Ellis' ruling also reignited debate over whether the former AIPAC employees are victims of government overreaching and whether they crossed the line between being lobbyists and agents of Israel, particularly at a time of war and during such a sensitive moment in U.S.-Middle East foreign policy.
"Anyone who cares about national security should be concerned about this," said Justin Raimondo, investigative journalist and co-founder of the libertarian Antiwar.com, who sees Rosen, Weissman and Franklin, the last now doing a 12-year sentence for disseminating classified information — as part of a broader effort on behalf of pro-Israel forces in Washington to push the U.S. toward a confrontation with Iran. According to reports, the national defense information pilfered by Franklin and shared by Rosen and Weissman mostly concerned U.S. policy with Iran.
"Who knows what secrets they were stealing and where they were ending up." Raimondo said.
Opinions like these have drawn rebuke and charges of anti-Semitism from people like Abe Foxman, national director of the Anti-Defamation League, who told Jewish Week magazine that framing the case as one of "Jews spying in America on behalf of Israel" is "classical anti-Semitic form."
He and others say the case has reinforced the image that AIPAC — the largest and most influential pro-Israel lobby in the United States — has the interest of Israel first in mind, and is wired into the highest levels of government to see its agenda pursued. AIPAC, for its part, fired Rosen, a lobbyist, and Weissman, a policy analyst, shortly after the indictments came down.
AIPAC will not confirm or deny charges by the defense's legal team that the U.S. government pressured AIPAC to fire the men. AIPAC officials have said only that the men were fired because their actions did not jibe with their job descriptions at the organization. They have not commented further on the charges against the two.
But others, including legal scholar Jonathan Turley, argue that disseminating information key to American and Israeli foreign policy was a normal part of their jobs, and that the 1917 Espionage Act under which Rosen and Weissman are being prosecuted, has never been used to prosecute civilian disseminators of classified information.
"Lobbyists, academics, journalists — all of these different professions attempt to share information with each other about the status of politics or direction of politics. They work in the city to acquire as much information as possible on these subjects," said Turley, a public interest law professor at George Washington University.
Weissman is charged with conspiracy to communicate national defense information to persons not entitled to receive it, while Rosen is charged with conspiracy and communication of national defense information to persons not entitled to receive it. Both allegedly falsely told the FBI they did not know Franklin had given them classified information when they were interviewed by authorities in 2004, though the indictment details how Franklin had warned the two on numerous occasions that the information he was sharing was classified.
Nonetheless, Turley believes the two men are being targeted unfairly.
"It's a very troubling case," he said, calling this another example of the Bush administration trying to clamp down on national security "leaks." This one goes too far, he said.
"Their interpretation would put even journalists and academics at risk of espionage," Turley said. "In the past, the emphasis has been on the discloser of information. When you shift that burden over to the people who receive the information and pass it along … it could be a slippery slope."
Everyday Lobbyists, or Spies?
According to the indictment, the FBI had Rosen and Weissman under surveillance since the spring of 1999, tapping their phone lines and following them to numerous meetings, typically set in Washington, D.C., area restaurants. In one case in 2003, the men moved from "one restaurant to another" before finishing their meeting.
Though described in generic terms in the indictment as a "Middle Eastern country" and FO (foreign official) 1, 2 and 3, subsequent reports allege the AIPAC lobbyists took classified information verbally from Franklin — except for one time when Rosen gave Franklin his fax number to receive a document typed by Franklin that was based on the original classified document — and handed it over almost immediately to Israeli diplomatic officials and members of the press.
Franklin, who was also charged and convicted under the Espionage Act, was busted for having 83 pieces of classified information at his home. A staunch defender of Israel, he was said to be frustrated that the U.S. government wasn’t putting more pressure on Iran over its nuclear program.
Critics say that Franklin was part of an effort to push the U.S. to war with Iran. The classified information exchanging hands in Washington would help Israeli officials figure out whether such a confrontation was in the cards and whether to plant stories important to their cause in the press.
"(AIPAC) is not a registered agent for Israel, and they make much of the fact they are not. But in my opinion they are" agents, said Andrew Killgore, a former U.S. ambassador to Qatar from 1977 to 1980 who now runs the Washington Report on Middle East Affairs. He said even if the two countries are allies, classified information is classified.
"Even if you give away your intelligence and methods to your best friend, you are going to have to assume it goes everywhere, all over the world," Killgore said. "One way or another, it goes to your enemies as well."
When reached at his office, Baruch Weiss, attorney for Weissman, said he remains "puzzled" about the government's motivation for prosecuting his client, whom he defends as protected under the First Amendment. He would not comment further on the case. Abbe Lowell, attorney for Rosen, did not respond to a request for an interview.
Officials contacted at the U.S. District Attorney's Office in Alexandria said they would not comment on the merits of the ongoing case. A new trial date has yet to be determined.
Despite arguments from the defense, Judge Ellis last August rejected a motion to dismiss the case on the grounds the men could not be prosecuted under the Espionage Act. The judge, however, did set down markers under which a prosecution could occur, forcing the government to prove that not only had Rosen and Weissman knowingly received and transmitted classified information, but did it knowing it could "injure the national defense" of the U.S., an "intangible" factor observers say will be difficult to prove.
"The allegations are certainly serious, and I think this is one of those cases where the pretrial motions have been and are very important," said Stephen Vladek, a national security and constitutional law professor at the University of Miami School of Law. He said the judge's refusal to dismiss the case has already set a precedent in terms of prosecuting civilians under the law.
"It's not an open and shut case," Vladek warned, noting that the Espionage Act is "notoriously vague and ambiguous" and that the side that argues the best interpretation will win. The evidence, as detailed in the indictment, can certainly serve the prosecution. "Going forward, it's going to be close, because what these guys knew and when they knew it is going to matter. It all comes down to credibility."
However, he added, "I think the burden is on the government to prove more than just these guys were in the wrong place at the wrong time."