Lawrence Franklin's plea-bargain pledge to cooperate with the U.S. government in its case against two former American Israel Public Affairs Committee (AIPAC) officials was put to the test as soon as it was made.
"It was unclassified and it is unclassified," Franklin, a former Pentagon analyst, insisted in court last week, describing a document that the government maintains is classified. The document is central to one of the conspiracy charges against Steve Rosen, the former foreign policy chief of AIPAC.
Guilty pleas usually are remorseful, sedate affairs. But Franklin appeared defiant and agitated in an Alexandria, Va., courthouse on Oct. 5 when he pleaded guilty as part of a deal that may leave him with a reduced sentence and part of his government pension.
Franklin's prickliness could prove another setback for the U.S. government in a case that the presiding judge already has suggested could be dismissed because of questions about access to evidence.
Franklin's performance unsettled prosecutors, who will attempt to prove that Rosen and Keith Weissman, AIPAC's former Iran analyst, conspired with Franklin to communicate secret information. The case goes to trial Jan. 2.
The argument over the faxed document furnished the most dramatic encounter Wednesday.
"It was a list of murders," Franklin began to explain to U.S. District Judge T.S. Ellis when Thomas Reilly, a youthful, red-headed lawyer from the Justice Department, leapt from his seat, shouting, "Your Honor, that's classified!"
Ellis agreed to seal that portion of the hearing. JTA has learned that the fax was a list of terrorist incidents believed to have been backed by Iran.
There were other elements of Franklin's plea that suggest he is not ready to cooperate to the fullest extent. The government says Franklin leaked information to the AIPAC employees because he thought it could advance his career, but Franklin says his motivation was "frustration with policy" on Iran at the Pentagon.
Franklin said he believed Rosen and Weissman were better connected than he and would be able to relay his concerns to officials at the White House's National Security Council.
He did not explicitly mention in court that Iran was his concern. But JTA has learned that Franklin thought his superiors at the Pentagon were overly distracted by the Iraq war in 2003 -- when he established contact with Rosen and Weissman -- and weren't paying enough attention to Iran.
The penal code criminalizes relaying information that "could be used to the injury of the United States or to the advantage of any foreign nation." Franklin's testimony would not be much use to the prosecution if he believed Rosen and Weissman simply were relaying information from the Pentagon to the White House, sources close to the defense of Rosen and Weissman said.
"I was convinced they would relay this information back-channel to friends on the NSC," he said.
In any case, the section of the penal code that deals with civilians who obtain and relay classified information rarely, if ever, has been used in a prosecution, partly because it runs up against First Amendment protections for journalists and lobbyists, who frequently deal with secrets.
A spokesman for Abbe Lowell, Rosen's lawyer, said Franklin's guilty plea "has no impact on our case because a government employee's actions in dealing with classified information is simply not the same as a private person, whether that person is a reporter or a lobbyist."
The essence of Franklin's guilty plea seemed to be only that he knew the recipients were unauthorized to receive the information. Beyond that, he insisted, he had no criminal intent.
Admitting guilt to another charge, relaying information to Naor Gilon, the chief political officer at the Israeli Embassy in Washington, Franklin said that he wasn't giving away anything that the Israeli didn't already know.
"I knew in my heart that his government had this information," Franklin said. "He gave me far more information than I gave him."
Franklin turned prosecutors' heads when he named Gilon, the first public confirmation that the foreign country hinted at in indictments is Israel. Indictments refer to a "foreign official."
The suggestion that Franklin was mining Gilon for information, and not the other way around, turns on its head the description of the case when it first was revealed in late August 2004, after the FBI raided AIPAC's offices. At the time, CBS described Franklin as an "Israeli spy."
Asked about his client's outburst, Franklin's lawyer, Plato Cacheris, said only that it was "gratuitous."
But Franklin's claim reinforced an argument put forward by Israel -- that Gilon was not soliciting anything untoward in the eight or nine meetings he had with Franklin beginning in 2002.
"We have full confidence in our diplomats, who are dedicated professionals and conduct themselves in accordance with established diplomatic practice," said David Siegel, an embassy spokesman. "Israel is a close ally of the United States, and we exchange information on a formalized basis on these issues. There would be no reason for any wrongdoing on the part of our diplomats."
Franklin also pleaded guilty to removing classified documents from the authorized area, which encompasses Maryland, Virginia and Washington, when he brought material to his home in West Virginia.
He sounded another defensive note in explaining the circumstances: He brought the material home on June 30, 2004, he said, to bone up for the sort of tough questions he often faced from Defense Secretary Donald Rumsfeld and Rumsfeld's then-deputy, Paul Wolfowitz.
Franklin, who has five children and an ill wife, said he is in dire circumstances, parking cars at a horse-race track, waiting tables and tending bar to make ends meet. Keeping part of his government pension for his wife was key to Franklin's agreement to plead guilty, Cacheris told JTA.
Franklin pleaded guilty to three different charges, one having to do with his alleged dealings with the former AIPAC officials; one having to do with Gilon; and one for taking classified documents home.
The language of the plea agreement suggests that the government will argue for a soft sentence, agreeing to Franklin's preferred minimum-security facility and allowing for concurrent sentencing. But it conditions its recommendations on Franklin being "reasonably available for debriefing and pre-trial conferences."
The prosecution asked for sentencing to be postponed until Jan. 20, more than two weeks after the trial against Rosen and Weissman begins, suggesting that government leniency will be proportional to Franklin's performance.
Franklin is a star witness, but he's not the entire case. The charges against Rosen and Weissman, apparently also based on wiretapped conversations, allege that the two former AIPAC staffers shared classified information with fellow AIPAC staffers, the media and foreign government officials.
Two other U.S. government officials who allegedly supplied Rosen and Weissman with information have not been charged: David Satterfield, then deputy assistant secretary of state for Near Eastern affairs and now the No. 2 man at the U.S. Embassy in Baghdad, and Kenneth Pollack, a Clinton-era National Security Council staffer who is now an analyst at the Brookings Institution.
The problem with the wiretap evidence lies in the government's refusal to share much of it or even to say exactly how much it has. In a recent filing, the government said that even the quantity of the material should remain classified.
In a Sept. 19 hearing, Ellis suggested to prosecutor Kevin DiGregori that his failure to share the defendants' wiretapped conversations with the defense team could lead to the case being dismissed.
"I am having a hard time, Mr. DiGregori, getting over the fact that the defendants can't hear their own statements, and whether that is so fundamental that if it doesn't happen, this case will have to be dismissed," Ellis said.
DiGregori said the government might indeed prefer to see the case dismissed rather than turn over the material.
AIPAC fired Rosen and Weissman in April but is paying for their defense because of provisions in its bylaws. AIPAC had no comment, nor did lawyers for Weissman.