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Analysis: AIPAC decision a victory—with qualifiers

By Ron Kampeas, JTA

May 1, 2009 | 4:34 pm

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.

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