|An August 9, 2006 opinion by
presiding Judge TS Ellis III and forthcoming ruling has dealt a decisive blow to
forces supporting full dismissal of the AIPAC espionage case. Defendants Rosen and
Weissman, formerly employed by the American Israel Public Affairs Committee (AIPAC) in
Washington, D.C. are charged with "cultivating relationships" with government
officials cleared to access sensitive U.S. national security information, obtaining
classified information from these officials, and transmitting the information to persons
not otherwise entitled to receive it. Recipients of purloined US national security
information allegedly trafficked by AIPAC included members of the media, foreign policy
analysts, and Israeli government officials.
The government's case against Rosen and
Weissman hinges on applying the Espionage Act which states:
"whoever, lawfully or unlawfully having possession of,
access to, control over, or being entrusted with any document, writing, code book, signal
book, sketch, photograph, photographic negative, blue print, plan, map, model, instrument,
appliance, or note relating to the national defense, willfully communicates or transmits
or attempts to communicate or transmit the same to any person not entitled to receive it,
or willfully retains the same and fails to deliver it on demand to the officer or employee
of the United States entitled to receive it. . . . shall be punished by a fine of not more
than $10,000, or by imprisonment for not more than two years, or both."
Rosen and Weisman's legal defense filed requests for dismissal were based on complex
challenges to the application of the Espionage Act. The defendants stated that oral
transmissions of national security information cannot be prosecuted, since they are
intangible, while also challenging that national security information is improperly
defined by US legal statute. Judge Ellis swatted down esoteric hair splitting through a
combination of Heritage Dictionary definitions and citations of legal precedents that
clearly reveal national defense information is not only extremely well defined, but can
also be transmitted orally in his opinion:
"Indeed, this conclusion is buttressed by a statement
of the district court in Morison, in which it stated that the statutedefines all types of
tangibles: "any document, writing, code book, signal book, sketch, photograph,
photographic negative, blueprint, plan, map, model, instrument, appliance, or note
relating to the national defense," and also describes intangibles: "information relating to the
national defense which information the possessor has reason to believe could be used to
the injury of the United States or to the advantage of any foreign nation."
The defendants also mounted a constitutional challenge to the Espionage Act based on
the principle that the "Due Process" clause of the Fifth Amendment prevents
punishment pursuant to a statute so vague that "men of common intelligence must
necessarily guess at its meaning and differ as to its application."
Judge Ellis opinion on the Rosen and Weissman's request for dismissal left no doubt
about who is, and who is not, entitled to receive classified national defense information.
Citing precedent and the government's classification protocols, which Rosen was aware of
after receiving a security clearance for his work at RAND, the Ellis opinion clarifies
that Rosen and Weissman were located far outside the circle of those entitled to receive
national defense information.
The Ellis opinion also reiterated that trafficking only orally transmitted classified
information, which is "intangible" and cannot bear written "secret"
stamps, does not absolve Weissman and Rosen. The opinion holds that if the
government can prove the two knew they retransmitted closely held information with "a bad purpose either to disobey or to
disregard the law" to both AIPAC and Israeli government officials, they will
be found guilty.
FBI transcript snippets from the original indictment reveal
that this may be a difficult obstacle for the defendants to overcome in trial. On June 11,
1999, Weissman allegedly told an Israeli government official that he had obtained a
"secret FBI, classified FBI report."
Rosen and Weissman's defensive dodge that the indictment violated their First Amendment
free speech rights was similarly knocked out in the opinion. Judge Ellis was lenient in
granting that a First Amendment review would be warranted even for operatives trafficking
classified data as a specific function of their lobbying efforts:
"even under a more precise description of the conduct the passing of
government secrets relating to the national defense to those not entitled to receive them
in an attempt to influence United States foreign policy"
However, precedent intervened again. Ellis found numerous cases of First Amendment
rights being superseded by the specific details of the activity in question, obligations
to protect national security, and the conduct of communication.
"Amendment scrutiny; but rather that, with respect to the First Amendment, 'the
character of every act depends on the circumstances in which it was done.'"
On a more superficial level, the judge's willingness to toss
out the defendant's challenge is is tied to the opinion's detailed description of the
circumstances of one meeting between a Pentagon official, Lawrence Franklin, who was
convicted of passing information to the lobbyists.
" In August 2002, Rosen was introduced to Franklin through a contact at the DOD.
The two agreed to meet on August 21, 2002, but the meeting was postponed. Rosen, Weissman,
Franklin and another DOD employee finally met nearly six months later, on February 12,
2003. At this meeting, Franklin disclosed to Rosen and Weissman information relating to a
classified draft internal United States government policy document concerning a certain
Middle Eastern country. He told Rosen and Weissman that he had prepared a separate
document based on the draft policy document. The three alleged co-conspirators met again
on March 10, 2003 at Union Station in Washington, D.C. The three men conducted the meeting
in successive restaurants and ended the meeting in an empty restaurant."
Espionage case hagiographers
such as Walter Pincus of the Washington Post have continually spun stories based on defense team First Ammendment scares now debunked by
Ellis and inaccurate, to the point of sloppy,
references to the breadth of applicable criminal statutes. A broader review of recent mainstream press accounts reveals that
dutiful "issue framing" that the case as a threat to the US foreign policy
"establishment' and disclosure of government corruption by the news media continues.
However, Ellis has not only dispersed this widely diffused PR cloud with clear
definitions and references to precedent, he has also opened the door for more future AIPAC
Ellis quashed the defense team's motion to dismiss for the "rarity" of
Espionage Act prosecutions. In their filing, the defendants claimed that there was no
warning that Rosen and Weissman's or AIPAC activities might be prosecuted since "past
applications of the statute fail to provide fair warning that the statute could be applied
to the facts alleged in the superseding indictment." In other words, court
dockets didn't signal to AIPAC that violating US criminal statutes in pursuit of their
policy objectives would ever be punished.
Ellis made it clear that lack of prosecutions under any criminal statute is not a safe
harbor or license for would be criminals, including AIPAC officials.
"that the rarity of prosecution under the statutes does not indicate that the
statutes were not to be enforced as written. We think in any event, the rarity of use of
the statute as a basis for prosecution is at best a questionable basis for nullifying the
clear language of the statute, and we think the revision of 1950 and its reenactment of
section 793(d) demonstrate that Congress did not consider such statute meaningless or
intend that the statute and its prohibitions were to be abandoned."
Judge Ellis may be signaling from the bench to both the
DOJ and grand juries across America a new willingness to try criminal statutes AIPAC would
rather see lying dormant. The two most relevant are the Logan Act and Foreign
Agent Registration Act (FARA). No person or organization has ever been successfully
prosecuted under the 1798 Logan Act. Logan
Act clauses clearly seek to outlaw the kinds of core AIPAC lobbying activities achieved by
ongoing communications links and coordinated activities with a foreign government.
"Any citizen of the United States, wherever he may be, who, without
authority of the United States, directly or indirectly commences or carries on any
correspondence or intercourse with any foreign government or any officer or agent thereof,
with intent to influence the measures or conduct of any foreign government or of any
officer or agent thereof, in relation to any disputes or controversies with the United
States, or to defeat the measures of the United States, shall be fined under this title or
imprisoned not more than three years, or both."
DOJ investigations of AIPAC over the past decade may already have gathered enough
wiretap, public domain and other documentary evidence to indict the lobby for numerous
"end runs" of US policy in cohort with the Israeli government. More troubling
for AIPAC, the historical drought of Foreign Agent Registration Act indictments should no
longer provide comfort. FARA is an obscure and oft abused law that requires foreign agents
to register with the Justice Department and disclose their financing and activities. FARA
defines foreign agents as:
"(1) any person who acts as an agent, representative, employee, or servant, or any
person who acts in any other capacity at the order, request, or under the direction or
control, of a foreign principal or of a person any of whose activities are directly or
indirectly supervised, directed, controlled, financed, or subsidized in whole or in major
part by a foreign principal, and who directly or through any other person--
(i) engages within the United States in political activities for or in the interests of
such foreign principal;
(ii) acts within the United States as a public relations counsel, publicity agent,
information-service employee or political consultant for or in the interests of such
(iii) within the United States solicits, collects, disburses, or dispenses
contributions, loans, money, or other things of value for or in the interest of such
foreign principal; or
(iv) within the United States represents the interests of such foreign principal before
any agency or official of the Government of the United States; and
(2) any person who agrees, consents, assumes or purports to act as, or who is or holds
himself out to be, whether or not pursuant to contractual relationship, an agent of a
foreign principal as defined in clause (1) of his subsection."
In twenty years through 1992, only two FARA indictments were lodged by the Department
Of Justice. DOJ filed a third in 1992 against former Colorado legislator Sam Zakhem for
promoting a "Stop Saddam" campaign with unreported Kuwaiti funds after Iraq's
invasion of Kuwait in 1990.
The public record documents numerous instances in which members of the Israel lobby
received explicit instructions or acted as unregistered agents for various Israeli
governments. The 1996 neoconservative "Clean Break" document outlines one group
of Israel lobby operatives' coordinated plan with Benjamin Netanyahu to trade missile
defense contract pork for US congressional support for moving the US embassy from Tel Aviv
to Jerusalem. Ehud Barak's hurried calls to Israel lobby leaders in the US to intervene
whenever he felt pressured to make concessions during US peace plan initiatives at Camp
David are but another star within a constellation of Israel Lobby FARA violations.
Americans are increasingly coming to understand how the illegal machinations of the
Israel lobby have led to many harebrained, bloody and costly policies, from the US
invasion of Iraq to unrestricted cash "Israel foreign aid packages" that
destabilize the Middle East and undermine America's reputation. The Judicial branch's
prosecution of the crimes that lie at the very core of AIPAC's activities may succeed in
placing US policy under the guidance of broad American interests. Judges like Ellis may
succeed where both the executive and legislative branch leaders have succumbed to the
power and corruption of AIPAC.
Grant F. Smith is the author of the new book, Deadly
Dogma: How Neoconservatives Broke the Law to Deceive America, on sale at IRmep and leading
Document 337 Filed 08/09/2006
The Espionage Act http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000793----000-.html
United States v. Morison, 844 F.2d 1057, 1064 (4th Cir. 1988).
United States v. Lanier, 520 U.S. 259, 266 (1997) (quoting Connally
Constr. Co., 269 U.S. 385, 391 (1926)).
Case 1:05-cr-00225-TSE Document 337 Filed 08/09/2006 page 40
Schenck, 249 U.S. at 52; see also Dennis v. United States, 341 U.S.
494, 544 (1951)
Case 1:05-cr-00225-TSE Document 337 Filed 08/09/200 Page 4
Case 1:05-cr-00225-TSE Document 337 Filed 08/09/200 Page 38.
Morison, 844 F.2d at 1067.
Lobbyists often disguise true colors Series: Fog merchants Influence
is the currency of politics in Washington and the lobbying industry knows how to spend it.
Christopher Drew and Michael Tackett, Chicago Tribune.: Dec 10, 1992. p. 1
The "Clean Break" Plan