AIPAC trial could expose ways information is gathered in
D.C.
By Ron Kampeas
11/03/05
"JTA"
-- -- WASHINGTON — It’s a classified leak case that could rattle
U.S. foreign policy and fundamentally alter how Washington does
business. But while the world watches the implosion in the vice
president’s office, this case is proceeding quietly across the
Potomac. Motions filed in recent weeks in the case against two
former senior staffers of the American Israel Public Affairs
Committee have gone virtually unnoticed in the mainstream media, but
their implications could be as explosive as the perjury indictment
last week against Lewis Libby, Vice President Cheney’s chief of
staff and a principal architect of the Iraq war.
Defense
motions suggest that the trial, now scheduled to start April 25,
could expose the extent of covert U.S. surveillance of an ally,
Israel, and how Israeli diplomats gather information about the
United States.
It also could shed light on how journalists
use intermediaries like AIPAC to gather information, on how U.S.
officials selectively leak information to manipulate public
perception of U.S. policy and on the inner workings of AIPAC, an
organization famed for its media-shy profile.
At a hearing
Wednesday on pre-trial motions in the case charging Steve Rosen,
AIPAC’s former foreign policy chief, and Keith Weissman, its former
Iran analyst with illegally transmitting classified information,
U.S. District Court Judge T.S. Ellis determined that prosecutors may
withhold evidence from the defense. Ellis said prosecutors persuaded
him that it was in the national interest to do so.
Ellis
said he would determine what material the defense can use and what
material it cannot access. Because that process is likely to be long
and involved, Ellis pushed back the trial date from Jan. 2 to April
25.
Rosen’s lawyer said that despite the ruling, Ellis showed
sensitivity to the defense’s concerns.
“We’re pleased that
the court understands the complexities involved in providing our
clients with the right to a fair trial in the midst of all these
classified procedures,” Abbe Lowell said.
Lawrence Franklin,
a Pentagon analyst, pleaded guilty last month to leaking classified
information relating to Iran.
Two defense motions filed Oct.
21 seek to subpoena as witnesses Israeli and U.S. diplomats, raising
the possibility that the case will expose how the countries share
information and how U.S. diplomats try to manipulate public
perception through strategic leaks.
The diplomats are not
named in the documents, but JTA has established that one of the
three Israelis sought in the case is Naor Gilon, who was chief
political officer at the Israeli Embassy in Washington until this
summer. Two of the four U.S. officials sought are David Satterfield,
currently the deputy ambassador in Iraq and formerly an assistant
deputy secretary of state, and Kenneth Pollack, a member of
President Clinton’s national security council, JTA has established.
David Siegel, the Israeli Embassy spokesman, acknowledged
receipt of the defense request for Israeli diplomats’ cooperation.
He would not comment further, but Israel already has offered limited
cooperation to the prosecution.
Lowell previously described
the Israelis as uncooperative with the defense.
Laurie
Levenson, a professor at Loyola Law School in Los Angeles, likened
the case to that of Zacarias Moussaoui, allegedly involved in the
Sept. 11, 2001 attacks. A judge in the same Alexandria, Va.
courthouse where Rosen and Weissman will be tried expressed sympathy
for Moussaoui’s claim that the government’s refusal to allow him to
see testimony of other Al-Qaida suspects held at Guantanamo Bay,
Cuba, unfairly prejudiced his case.
“The more the defendants
show it’s not their fault that the Israeli witnesses are not
available, the likelier it is they will get relief from the court,”
Levenson said.
The State Department refused to make
Satterfield available for comment. A spokesman said that the
decision about whether or not to testify was Satterfield’s alone,
and the department would not compel him to do so. Pollack did not
return calls.
One motion also seeks to subpoena the FBI
agents in the case. Sources close to the defense have suggested that
the strategy is to show how little the FBI came up with during a
broad, six-year investigation.
The strategy also is
reflected in the separate exchange of motions on how much of the
transcripts and tapes of tapped phone conversations the prosecution
must share with the defense that preceded Ellis’ ruling on
Wednesday. The prosecution is offering only nine hours of what could
amount to hundreds of hours of recordings. Ellis may add to that in
coming months.
Should Ellis eventually allow the publication
of a substantial portion of the transcripts, it could expose the
breadth of covert attention that U.S. agencies pay to Israel and to
AIPAC, a respected domestic lobbying organization. The prosecution
hopes to stymie that exposure with its own motion that seeks not
only to suppress most of the tapped conversations, but even their
quantity. Ellis did not indicate whether he would suppress
information about the quantity.
A close analysis of the
indictment shows that FBI tracking of Rosen and Weissman did not
begin in earnest until 2002. Yet there is much in the indictment
preceding that date, suggesting that the FBI might have had other
targets, including Israeli diplomats, journalists and even U.S.
officials.
Another government practice with the potential
for embarrassment, as the Libby case has shown, is the tendency for
administration officials to selectively leak information to
manipulate public opinion.
Satterfield and Pollack, neither
of whom has been charged in the case, allegedly leaked information
related to Iran and al-Qaida. If required to testify, they likely
would be asked why it was important to get this information to the
pro-Israel lobby.
In previous hearings, Ellis has expressed
sympathy for defense arguments that much of the evidence the
prosecution hopes to withhold would meet a relevance standard that
would require sharing it with the defense. But it’s not just the
U.S. government that stands to be embarrassed should Ellis lean
toward defense arguments, and release more material.
“Any
and all statements made by the defendants to the following people
are relevant,” says a defense motion filed Oct. 21. “Their
employees, supervisors or co-workers at AIPAC; their alleged
co-conspirators; anyone referred to in the superseding indictment;
any government official of Foreign Nation A,” a reference to Israel;
“any employee or official of the United States; and/or any
journalists.”
That list threatens to blow open a number of
Washington practices. Diplomats of all countries in Washington
avidly mine government officials and lobbyists for unclassified
tidbits.
Journalists, increasingly denied access to the Bush
administration, have taken in recent years to soliciting information
from groups and lobbies close to the White House. AIPAC is known
among journalists as a premier conduit for hard-to-get information,
and two such incidents are cited in the indictment. JTA has learned
that the incidents involve The Washington Post and The Nation.
Additionally, defense sources say they have reason to
believe that the defendants’ relationship with a New York Times
reporter might have been monitored.
Finally, the defense
will argue that the practices alleged were routine for AIPAC.
AIPAC has insisted that Rosen and Weissman overstepped
bounds. The group fired the two in April because of what its
spokesman said was information arising out of the FBI investigation.
It is obligated to pay their legal fees under AIPAC’s bylaws,
however.
AIPAC also says that none of its current staff has
been involved in any wrongdoing, and the lead prosecutor in the
case, U.S. Attorney Paul McNulty, has said as much as well.
Still, the prospect of AIPAC officials taking the witness
stand to prove or disprove whether Rosen and Weissman hewed to
routine cannot be a happy one for a group known in Washington for
closely guarding its lobbying practices.
Defense sources
have suggested that they will show that Rosen and Weissman relayed
information that the government says was classified to Howard Kohr,
AIPAC’s executive director, as soon as they allegedly got it from
Franklin in July 2004.
That information supposedly will
establish that such practice was part of AIPAC’s routine, though no
one is suggesting that Kohr knew the information was classified or
that he shared it with anyone else.
The argument that Rosen
and Weissman’s practices were routine got unexpected support last
week from none other than Patrick Fitzgerald. He’s the U.S. attorney
who won the perjury indictment against Libby for allegedly leaking
the name of a CIA operative who is married to Joseph Wilson, a
prominent critic of the Iraq war.
In an extended news
conference, Fitzgerald sought to explain why he was prosecuting a
cover-up — the alleged perjury — and not the underlying alleged
crime, the leaking of Valerie Wilson’s name.
“That would
violate the statute known as Section 793, which is the Espionage
Act,” Fitzgerald said. “That is a difficult statute to interpret.
It’s a statute you ought to carefully apply. I think there are
people out there who would argue that you would never use that to
prosecute the transmission of classified information, because they
think that would convert that statute into what is in England the
Official Secrets Act.”
Indeed, Section 793 rarely is used to
prosecute the transmission of classified information. Experts can’t
think of a single case since the mid 1980s — until this year, when
it was used to charge Rosen and Weissman.
© JTA.
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