1.
Nation
U.S. DROPS CASE AGAINST EX-LOBBYISTS
By Jerry Markon
Washington Post
May 2, 2009
http://www.washingtonpost.com/wp-dyn/content/article/2009/05/01/AR2009050101310.html
Federal prosecutors yesterday abandoned an espionage-law case against two former lobbyists for a pro-Israel advocacy group, a case that had transfixed much of official Washington because of its potential to criminalize the exchange of sensitive information among journalists, lobbyists, and policy analysts.
In asking a judge to dismiss charges against Steven J. Rosen and Keith Weissman, formerly of the American Israel Public Affairs Committee, or AIPAC, officials said recent court rulings had changed the legal landscape and made it unlikely that they would win.
Prosecutors and investigators had used FBI wiretaps to pursue Rosen and Weissman for at least five years, building a complex case that involved secret court hearings and dozens of legal filings and rulings. The two men were charged in 2005 with conspiring to obtain classified information -- about topics including al-Qaeda and U.S. forces in Iraq -- and pass it to the Israeli government and journalists from the Washington Post and other news organizations.
Rosen and Weissman were the first civilians not employed by the government charged under the 1917 espionage statute.
"Thank God we live in a country where you can defend yourself against an injustice like this," Rosen, 66, said yesterday. He said the case was politicized and pushed by government officials "who have an obsession with leaks . . . and an obsession with Israel and the theory that it spies on America."
The case was not a total loss for the government. A former Pentagon analyst, Lawrence A. Franklin, pleaded guilty in 2005 to passing government secrets to Rosen and Weissman. He was sentenced to more than 12 years in prison.
Lawyers for Rosen and Weissman attributed the withdrawal of the case in part to the Obama administration. "We are extremely grateful that this new Administration . . . has taken seriously their obligation to evaluate cases on the merits," the lawyers, Abbe D. Lowell, John Nassikas, and Baruch Weiss, said in a statement.
But David Szady, who was the FBI's assistant director for counterintelligence when the case was brought, said politics was not a factor in the decisions to file charges or to withdraw them. "If you commit espionage against the United States, the FBI has an obligation to investigate that, regardless of the political fires around it, and we're blind to whatever country may be involved," Szady said.
Recent pretrial rulings made the case difficult for the government, including an appeals court ruling that allowed the defense to use "national defense information" at trial. A lower-court judge also said prosecutors must show that the two men knew that the information they allegedly disclosed would harm the United States or help a foreign government -- a high burden for prosecutors.
Dana J. Boente, the acting U.S. attorney in Alexandria, where the trial was set to begin June 2, said prosecutors reversed course because of "the diminished likelihood the government will prevail at trial . . . and the inevitable disclosure of classified information that would occur." Attorney General Eric H. Holder Jr. was aware of the discussions, law enforcement sources said, adding that the ultimate decision was made by prosecutors.
Officials said FBI agents opposed the decision, believing they had a strong case. Joseph Persichini Jr., assistant director in charge of the FBI's Washington field office, said yesterday that the case's end was "disappointing," but he commended the work of the agents.
The decision to drop the case was welcomed by AIPAC, long an influential presence in Washington because of its close ties to policymakers, think tanks, and lawmakers. The group had distanced itself from Rosen and Weissman, formally firing them in 2005, but spokesman Patrick Dorton yesterday called the decision "a great day" for the defendants and their families.
AIPAC's critics had seized on the allegations against the two lobbyists as fresh evidence that the group had aligned itself so closely with the Israeli government that it was acting on that country's behalf. Supporters of the group said they were mystified by the case, noting that collecting information from government officials and sharing it with others, including governments with embassies in Washington, is a highly profitable local business.
The outcome left wider opinions about AIPAC and its influence largely unchanged. Jon B. Alterman, director of the Middle East program at the Center for Strategic and International Studies, said he had never found the case to be particularly revealing about AIPAC. "I thought it was an unusual action by the government," he said.
Gary Wasserman, a professor of government at Georgetown University who is writing a book about the case, said he was not surprised that AIPAC was pleased by the proposed dismissal. A trial, he added, "would have provoked a lot of public discussion about how they worked."
--Staff reporters R. Jeffrey Smith and Carrie Johnson and research editor Alice Crites contributed to this report.
2.
LAWYERS CREDIT OBAMA TEAM FOR DISMISSING AIPAC CASE
Jewish Telegraphic Agency
May 1, 2009
Lawyers for the two former AIPAC staffers charged four years ago with dealing in government secrets credited the Obama administration for dropping the case.
“We are extremely grateful that this new Administration, in coordination with the U.S. Attorney’s Office in Virginia, has taken seriously their obligation to evaluate cases on the merits and not to allow an unjust prosecution to continue solely due to momentum,” said the joint statement by lawyers for Steve Rosen and Keith Weissman issued Friday, hours after the government filed for a dismissal of the charges against the two former senior staffers for the American Israel Public Affairs Committee. “This Administration truly shows that theirs is a Department of Justice, where the justice of any case can be re-evaluated and the government can admit that a case should not be pursued.”
Sources close to the defense said the investigation, which first came to light in 2004 when FBI agents raided AIPAC offices, appeared to be of a piece with the Bush administration policy of expanding its secrecy powers that President Obama has said he will reverse. Rosen and Weissman were the first civilians to be prosecuted under 1917 statute that criminalizes the receipt and retention of classified information.
JTA has learned that the defense lawyers two months ago launched an intensified effort to get Obama appointees at the Justice Department to review the case.
Abbe Lowell, Rosen’s lead lawyer, said now was a time for AIPAC and the organized Jewish community to consider its treatment of the two.
“Now, we mostly look for ways for Keith and Steve to get their life back,” Lowell said. “What happened to them at AIPAC, how the community treated them, how they get on with their lives.”
The others lawyers signing the statement included: Erica Paulson for Rosen; and John Nassikas, Baruch Weiss, Kate Briscoe and Kavitha Babu for Weissman.
3.
GOVERNMENT MOVES TO DISMISS AIPAC CASE
By Ron Kampeas
Jewish Telegraphic Agency
May 1, 2009
http://jta.org/news/article/2009/05/01/1004827/case-against-ex-aipac-staffers-dropped
WASHINGTON -- Prosecutors asked a judge to drop charges against two ex-AIPAC staffers accused of passing along classified information.
In a statement Friday, the acting U.S. attorney in the Eastern District of Virginia said restrictions on the government's case imposed by Judge T.S. Ellis III made conviction unlikely.
"Given the diminished likelihood the government will prevail at trial under the additional intent requirements imposed by the court and the inevitable disclosure of classified information that would occur at any trial in this matter, we have asked the court to dismiss the indictment," Dana Boente said.
The motion all but guarantees a dismissal.
"Intent requirements" refers to an earlier Ellis ruling that the government must prove that Keith Weissman, the American Israel Public Affairs Committee's former Iran analyst, and Steve Rosen, its former foreign policy chief, intended not only to assist Israel but to harm the United States.
Weissman and Rosen were charged under a rarely used section of the 1917 Espionage Act that makes it a crime for civilians to receive and distribute closely held defense information. Both men were later dismissed by AIPAC, with the organization claiming the two had violated its rules; Rosen has filed a multimillion dollar lawsuit against AIPAC.
Reached by phone, Rosen told JTA he was "ecstatic" and was "still absorbing a life-changing moment." He said he had been on the phone Friday morning nonstop with family and friends.
"There was a great injustice here, but thank God we live in a country where the courts can correct this kind of injustice," he said.
For the immediate future, Rosen said, he would focus on a book he was writing on government leaks.
Baruch Weiss, Weissman's lawyer, told JTA that the decision was a "great victory for the First Amendment and for the pro-Israel community." Anything the defendants did "was to the benefit of Israel and the United States," he said.
The dropping of the case comes just days before the start Sunday of AIPAC's annual policy conference in Washington.
4.
CASE AGAINST PRO-ISRAEL LOBBYISTS LIKELY TO BE DROPPED
By Josh Meyer
** Dismissal of 2005 charges against former AIPAC officials Steven Rosen and Keith Weissman would end a politically sensitive prosecution. **
Los Angeles Times
May 2, 2009
http://www.latimes.com/news/nationworld/nation/la-na-aipac2-2009may02,0,7294178.story
WASHINGTON -- The Justice Department asked a judge Friday to drop espionage-related charges against two pro-Israel lobbyists, a move expected to end a politically sensitive case that focused on whether U.S. secrets had been leaked.
Prosecutors said recent court decisions would have made the case hard to win and forced disclosure of large amounts of classified information. But defense lawyers and some legal experts said the government was wrong in the first place for trying to criminalize the kind of information horse-trading that long has occurred in Washington.
The intrigue surrounding the case against the two former lobbyists for the American Israel Public Affairs Committee already was chock-full of references to top-secret intelligence matters and Middle East politics. But it intensified in recent weeks with reports that Rep. Jane Harman (D-Venice), a staunch supporter of AIPAC, had been caught on federal wiretaps in 2005 offering to aid the two lobbyists in exchange for help in obtaining a coveted House committee chairmanship.
The dismissal, which is all but certain to be approved by a federal judge, probably will end the five-year legal battle between the government and the two lobbyists, Steven J. Rosen and Keith Weissman.
It was the second major federal case dropped by Atty. Gen. Eric H. Holder Jr. since he took over in January. Last month, the government dropped its prosecution of former Sen. Ted Stevens (R-Alaska) and voided his conviction, citing misconduct by federal attorneys.
During the Bush administration, the Justice Department had accused Rosen and Weissman of obtaining classified information from the U.S. government and then disclosing it to reporters, think tank personnel, and the Israeli government in a way that could either harm national security or aid a foreign country.
The two men, who had left their jobs at AIPAC before being charged in 2005, were never accused of espionage and have maintained that they did nothing wrong.
After several delays, their trial had been set for June 2 in Alexandria, Va., where the Justice Department filed the dismissal motions Friday.
A third defendant in the case, former Pentagon official Lawrence A. Franklin, pleaded guilty to giving classified defense information to Rosen and Weissman and was sentenced to more than 12 years in prison.
According to the indictment, Rosen and Weissman conspired to obtain and then disseminate classified information on sensitive issues such as U.S. policy toward Iran, the status of U.S. counter-terrorism investigations in the Middle East and current intelligence on Al Qaeda and other terrorist networks.
After the arrests, Harman was recorded by court-approved wiretaps being used to investigate suspected Israeli intelligence-gathering in the United States. According to some reports, Harman, who was not the object of the wiretap, was said to have promised an Israeli operative that she would lobby officials for leniency for Rosen and Weissman.
Harman denied wrongdoing and demanded the release of transcripts of any wiretapped conversation in which she participated.
Then-CIA Director Porter J. Goss wanted to inform Congress about Harman's wiretap in accordance with a long-standing policy governing sensitive intelligence investigations, but was asked by then-Atty. Gen. Alberto R. Gonzales not to, according to a former senior intelligence official who spoke of internal discussions on condition of anonymity.
The prosecution of Rosen and Weissman continued without interference, several current and former federal law enforcement officials said.
The government's case began to falter in recent months, however, when lawyers for Rosen and Weissman won several key procedural rulings. The lobbyists won the right to subpoena as defense witnesses a number of former top Bush administration officials, including former Secretary of State Condoleezza Rice.
Defense lawyers Abbe Lowell and Baruch Weiss said their clients had met frequently with those officials. As witnesses, the officials would help prove that the Bush administration, like prior administrations, routinely discussed sensitive information with AIPAC as part of a sanctioned, back-channel relationship between the United States and Israel.
U.S. District Judge T.S. Ellis III also issued legal rulings that set a high bar for the prosecutors, including a requirement to prove that Rosen and Weissman knowingly meant to harm the United States or aid another country.
U.S. Atty. Dana J. Boente, the acting top federal prosecutor in the region, said the government was moving to dismiss the charges because of the additional legal burdens.
"When this indictment was brought, the government believed it could prove this case beyond a reasonable doubt based on the statute," Boente said, adding that there was a "diminished likelihood" the government could win now.
Lowell and another defense lawyer, John Nassikas III, praised the Obama administration for reviewing the case and denounced the previous administration's actions dating to the first FBI search at AIPAC's offices in 2004.
Rosen and Weissman may sue the government to recover legal costs, which are estimated at more than $10 million.
Many current and former federal law enforcement officials said the prosecution's case was strong and that there was proof the two lobbyists knew their actions were wrong.
"The judge had made so many adverse rulings that this was inevitable, but it grates on me," one former senior Justice Department official said of the decision to drop the case.
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5.
U.S. TO DROP SPY CASE AGAINST PRO-ISRAEL LOBBYISTS
By Neil A. Lewis and David Johnston
New York Times
May 2, 2009
http://www.nytimes.com/2009/05/02/us/politics/02aipac.html
[PHOTO CAPTION: Keith Weissman during his arraignment in U.S. District Court in Alexandria, Va., in August 2005.]
[PHOTO CAPTION: Steven J. Rosen, left, with his attorney Abbe Lowell at U.S. District Court in Alexandria, Va., in August 2005.]
WASHINGTON -- A case that began four years ago with the tantalizing and volatile premise that officials of a major pro-Israel lobbying organization were illegally trafficking in sensitive national security information collapsed on Friday as prosecutors asked that all charges be withdrawn.
From the beginning, the case against the lobbyists for the American Israel Public Affairs Committee was highly unusual. The two, Steven J. Rosen and Keith Weissman, were charged under the World War I-era Espionage Act, accused of improperly providing to their colleagues, journalists, and Israeli diplomats sensitive information they had acquired by speaking with American policy makers.
Some lawyers at the Justice Department had always had significant reservations about the case, some current and former officials said. They believed that Mr. Rosen and Mr. Weissman had acted imprudently, but doubted that either man should be criminally prosecuted. Nevertheless, F.B.I. agents poured substantial resources into the case, and the decision to seek a dismissal infuriated many within the law enforcement agency.
But several current and former officials said the decision to abandon the case was no surprise. With adverse judicial rulings making the prosecution increasingly risky, lawyers in the United States Attorney’s Office in Alexandria, Va., and at Justice Department headquarters met on several occasions in recent weeks, agonizing over whether to go forward with the trial, which was scheduled to begin June 2.
Last week, officials from the F.B.I.’s Washington office who investigated the case made their final pleas to keep the case alive, arguing that there was enough evidence to persuade a jury to find the two men guilty. But prosecutors -- including some who had worked on the case for years -- disagreed.
Joseph Persichini Jr., the top official at the F.B.I.’s Washington office, praised the work of the F.B.I. agents on the case, and said he was “disappointed” in the decision to drop the charges.
The case had raised delicate political issues about the role played by American Jewish supporters of Israel and their close, behind-the-scenes relationships with top government officials. Advocates of civil liberties and of open government asserted that the defendants were being singled out for activities that were part of the accepted and routine way that American policy on Israel and the Middle East had been formulated for years, with people exchanging information.
The decision to drop the case comes just days before Aipac is scheduled to begin its annual policy conference in Washington, which has often served as an advertisement of its influence. Prime Minister Benjamin Netanyahu of Israel is scheduled to address the event via satellite.
Lawyers for Mr. Rosen and Mr. Weissman said in a statement that while they were pleased at the decision, the government had erred in bringing the case in the first place and had caused great damage to their clients. AIPAC dismissed the men early in 2004 after prosecutors presented some of their evidence to an AIPAC lawyer. The group later agreed to subsidize their legal costs.
The Justice Department said that the decision to drop the case had been made solely by career prosecutors in Alexandria, and that senior officials of the Obama administration had acted only to approve the recommendation.
Several other officials said, however, that while senior political appointees at the Justice Department did not direct subordinates to drop the case, they were heavily involved in the deliberations. These officials said David S. Kris, the newly appointed chief of the department’s national security division, and Dana J. Boente, the interim United States attorney in Alexandria, had conferred regularly with prosecutors and ultimately decided to accept the recommendation to abandon the case. Attorney General Eric H. Holder Jr. was informed and raised no objections.
The case would have been the first prosecution under the espionage law in which no documents were involved and in which the defendants were not officials who provided the information, but the private citizens who received it from them in conversations.
While Mr. Rosen and Mr. Weissman trafficked in facts, ideas, and rumor, they had done so with the full awareness of officials in the United States and Israel, who found they often helped lubricate the wheels of decision-making between two close, but sometimes quarrelsome, friends.
The move by the government to end the case came in a motion filed with the Federal Court in Alexandria.
In pretrial maneuvering, the prosecution suffered several setbacks in rulings from the trial judge, T. S. Ellis III, that were upheld by a federal appeals court in Richmond, Va. Judge Ellis rejected several government efforts to conceal classified information if the case went to trial. Moreover, he ruled that the government could prevail only if it met a high standard; he said prosecutors would have to demonstrate that Mr. Rosen and Mr. Weissman knew that their distribution of the information would harm United States national security.
The investigation of Mr. Rosen and Mr. Weissman also surfaced recently in news reports that Representative Jane Harman, a California Democrat long involved in intelligence matters, was overheard on a government wiretap discussing the case. As reported by Congressional Quarterly, which covers Capitol Hill, and the New York Times, Ms. Harman was overheard agreeing with an Israeli intelligence operative to try to intercede with Bush administration officials to obtain leniency for Mr. Rosen and Mr. Weissman in exchange for help in persuading Democratic leaders to make her chairwoman of the House Intelligence Committee.
Ms. Harman has denied interceding for Mr. Rosen and Mr. Weissman, and has expressed anger that she was wiretapped. She is to be among the featured speakers at the AIPAC conference next week.
Over government objections, Judge Ellis had also ruled that the defense could call as witnesses several senior Bush administration foreign policy officials to demonstrate that what occurred was part of the continuing process of information trading and did not involve anything nefarious. The defense lawyers were planning to call as witnesses former Secretary of State Condoleezza Rice; Stephen J. Hadley, the former national security adviser; and several others. Government policy makers indicated they were clearly uncomfortable with senior officials’ testifying in open court over policy deliberations.
The government’s motion to dismiss said the government was obliged take a final review of the case to consider “the likelihood that classified information will be revealed at trial, any damage to the national security that might result from a disclosure of classified information, and the likelihood the government would prevail at trial.”
6.
News analysis
AIPAC DECISION A VICTORY -- WITH QUALIFIERS
By Ron Kampeas
Jewish Telegraphic Agency
May 1, 2009
http://jta.org/news/article/2009/05/01/1004841/aipac-decision-a-victory-with-qualifiers
WASHINGTON -- Baruch Weiss, the young lawyer who helped cripple the government’s case against two former AIPAC staffers, says the prosecution’s loss is a “great victory” for free speech and for Israel’s friends.
He’s not wrong, but -- like any legal document -- the government’s motion Friday to dismiss classified information charges against Steve Rosen, the American Israel Public Affairs Committee’s former foreign policy chief, and Keith Weissman, its former Iran analyst, begs for footnotes and qualifiers.
The decision upholds as a matter of law the right of lobbyists to relay information to allies like Israel. The drawn-out case, however, unquestionably wounded the pro-Israel community’s reputation as unassailable. It also defers a looming crisis for one of the fundamentals of reporting: the right of a reporter or lobbyist or anyone to listen to a source without running to tell the feds.
Rosen and Weissman had been awaiting trial ever since an FBI raid in August 2004 on AIPAC offices resulted in charges that they had obtained and relayed information relating to Iran’s threat against Israel. In the last three years, the government's case suffered numerous setbacks in various pre-trial court rulings.
In a statement Friday, Dana Boente, the acting U.S. attorney for the Eastern District of Virginia, said, “Given the diminished likelihood the government will prevail at trial under the additional intent requirements imposed by the court and the inevitable disclosure of classified information that would occur at any trial in this matter, we have asked the court to dismiss the indictment."
Weiss, Weissman's attorney, said Friday's move by the government to drop the case represented a "great victory for the First Amendment and for the pro-Israel community."
But Boente made it clear that while Rosen and Weissman are free, the government likes the tool it unearthed in an obscure section of the 1917 Espionage Act -- the ability to charge civilians with dealing in classified information -- and it's going to keep it.
The 1917 statute criminalizes information that “could be used to the injury of the United States or to the advantage of any foreign nation.”
The problem for the government came in a pre-trial ruling in August 2006, when trial judge T.S. Ellis III interpreted that line to mean that prosecutors had to show that U.S. interests were harmed, and not just that Rosen and Weissman relayed secrets to a foreign power: Israel.
Relaying secrets to friends of the United States, Ellis suggested, was not in and of itself criminal. For a crime to be committed, he said, the accused must have sought both benefit to another nation as well as harm to the United States.
Boente said that ruling went too far. “The District Court potentially imposed an additional burden on the prosecution not mandated by statute,” he complained.
The core of the indictment against Weissman and Rosen was that, as part of an FBI sting operation, they were told -- falsely, it turns out -- that Iranian agents were plotting to kill Israelis and Americans in northern Iraq. They allegedly relayed the information to Israeli diplomats, media, and colleagues.
“Relaying information to a friendly power” describes the essence of what AIPAC and a roster of other Jewish groups do -- and what any number of ethnic lobbies do.
With his 2006 ruling, Ellis enshrined that as legal, so long as it doesn’t harm the United States.
That might prove a relief to the pro-Israel community, but also raises questions for AIPAC on the eve of its annual policy conference about why it is so quick to throw Rosen and Weissman to the prosecutorial wolves.
AIPAC fired the two seven months after the charges were announced, saying their practices didn’t comport with AIPAC’s standards, without ever elaborating what those were.
With the notable exceptions of Malcolm Hoenlein, the executive vice-chairman of the Conference of Presidents of Major American Jewish Organizations, and Abraham Foxman, national director of the Anti-Defamation League, prominent organizations and communal leaders took years to weigh in -- if they did at all.
How does such behavior square with AIPAC's carefully cultivated reputation for standing tall and tough?
Allowing Ellis’ decision to stand also upholds the part of the statute that alarmed free speech advocates when Rosen and Weissman were first charged in 2005: The idea that anyone who even hears information that could harm the United States is liable to face 10 years behind bars if he or she doesn’t immediately call the authorities.
Boente’s statement Friday suggested that the government may rely on that statute in the future when it comes to prosecutions.
In movie parlance, that leaves a hole big enough for a sequel.
7.
STEVE ROSEN E-MAILS WITH SOME THOUGHTS
By Jeffrey Goldberg
Atlantic
May 1, 2009
http://jeffreygoldberg.theatlantic.com/archives/2009/05/steve_rosen_e-mails_with_some.php
I just received this e-mail from Steve Rosen, the now-vindicated ex-AIPAC official who was about to stand trial for passing classified leaks to reporters and to an Israeli embassy official. Here is what he wrote: "Thank God we live in a country where the courts can correct injustices like this. I have written a book on the truth about classified information leaks. The manuscript goes to publishers on Monday morning."