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Judge in Aipac Case Focuses on Government Refusal to Share Tapes

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The judge hearing a case against two former staffers of the American Israel Public Affairs Committee has raised tough questions about the government’s reluctance to share information with the defendants, suggesting the reluctance could lead to a dismissal. The contours of the trial against Steve Rosen, AIPAC’s former foreign policy director, and Keith Weissman, a former Iran analyst, on charges of trading in classified information are beginning to become clear in preliminary hearings. The trial date is set for Jan. 2.

Lawrence Franklin, a former Pentagon analyst who is charged as a co-conspirator, is set to plead guilty on Wednesday, which would require him to testify against Rosen and Weissman.

In a routine scheduling session Sept. 19, Judge T.S. Ellis was taken aback by prosecutor Kevin DiGregori’s plans to withhold from the defense a portion of tapes and transcripts of conversations among Rosen, Weissman and others in which the defendants allegedly incriminate themselves.

“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. “Have you ever heard of a case where a defendant couldn’t have his own statements? I have been on the bench 18 years, with another 20 years before that, and it has never happened. I don’t know of any reported case.”

Prosecutors said the wiretap material was “owned” by various government intelligence agencies, and it was up to those agencies to share the material.

Thomas Reilly, a Justice Department lawyer, invoked the notorious secrecy of the three-judge panel that orders wiretaps under the Foreign Intelligence Surveillance Act, and suggested that the sensitivity lay not in what Rosen and Weissman had said but in whom they were speaking with.

“It involves FISA-derived electronic surveillance, your honor, of the defendants and third parties,” Reilly said.

The indictment speaks of information garnered from two U.S. government officials and relayed to three foreign officials, understood to be senior Israeli Embassy staffers.

JTA has learned that one of the U.S. government officials is 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. The other is Kenneth Pollack, a Clinton-era National Security Council staffer and now an analyst at the Brookings Institution.

One of the Israelis is Naor Gilon, who until this summer was the chief political officer at the embassy.

None of those men has been charged. That raises questions about the government’s case against Rosen and Weissman, who — according to the government scenario — would have been middlemen in the whole affair.

Rosen and Weissman also allegedly relayed some of the information in question to journalists at The Washington Post and The Nation magazine. The government may be sensitive about revealing that it wiretapped journalists and Israeli diplomats, some close to the case say.

Judge Ellis was skeptical of the government’s position, but gave the government until Sept. 29 to explain its case.

“I can understand how that conceivably might be national security information, but I find it hard to understand how the defendants shouldn’t have access to it,” he said, adding that he might review the material himself.

In a response filed Sept. 29, the government cited precedents to show that prosecutors need not reveal wiretapped information that is not exculpatory or is irrelevant to the defense. They likened keeping the information secret to laws that protect informants.

In the Sept. 19 hearing, Ellis said it was up to him to determine relevancy. The defendants have until Friday to respond.

Rosen’s lawyer, Abbe Lowell, had raised the matter because he said a lack of access to material would prevent him from meeting court deadlines to file motions to dismiss. Ellis appeared sympathetic and postponed some of the hearings, though he was adamant that the trial would start Jan. 2.

Lowell said in court that he had spoken to lawyers for the foreign officials — apparently the Israelis — and had little hope of calling them for the defense.

“My initial inclination, from what I have spoken to counsel” for the foreign officials, “is that they are not going to make this very easy,” he said.

More broadly, Lowell suggested that the government’s proposed release of nine hours of recorded material was sparse, because his client was under surveillance for four years. He suggested that the government had much more material than it claimed.

“I am happy to hear, but would be surprised to find out, that there are only nine hours of surveillance tape,” he said. “On the issue of motions, it will be necessary to hear everything my client said.”

DiGregori suggested that the material the government wished to suppress was a small portion of the whole.

“Except for two outstanding issues on some of the FISA material,” he would release everything, DiGregori said.

In the later written submission to the court, DiGregori said that even the quantity of the government’s recordings should remain classified.

If Ellis allows the government to withhold some of the wiretap recordings, the defendants could consider it grounds for appeal.

AIPAC is committed to paying for the legal defense of Rosen and Weissman because of an indemnification clause in employee contracts, JTA has learned. AIPAC employees sign an agreement that protects them from legal harm until all appeals are exhausted, according to a source close to the defense of Rosen and Weissman who has firsthand knowledge of the clause.

JTA previously had learned that AIPAC’s bill for the pair’s defense had topped $1 million, even though AIPAC fired Rosen and Weissman in April, allegedly because of information arising out of the FBI investigation. AIPAC declined to comment, as did Lowell.

Franklin, the Pentagon analyst who has been charged along with Rosen and Weissman, plans to plead guilty Wednesday, a clerk for the court told JTA. The clerk, Edward Adams, said he did not know what charge Franklin would plead to, or if the plea is part of a larger deal.

Plato Cacheris, Franklin’s lawyer, would not say what his client would plead to, but confirmed to JTA that negotiations with the government are under way and that his client would be required to testify if he pleads.

Cacheris also confirmed that part of the negotiations involved retaining Franklin’s pension. Franklin has five children and an ill wife.

In the past, Cacheris had suggested that Franklin would plead guilty to charges that he moved classified documents out of a designated area to his home in West Virginia. That is the least of the charges against him, and doesn’t involve Rosen or Weissman.

Rosen and Weissman were charged with “conspiracy to communicate national defense information to people not entitled to receive it,” which carries a maximum sentence of 10 years in prison. Rosen also is charged with actual communication of national defense information, which also is punishable by 10 years in prison.

The charges come under the Espionage Act, but do not rise to the level of espionage.

The indictment lists charges involving incidents dating back to 1999, and is related to information on Iran and terrorist attacks in Central Asia and Saudi Arabia. For a period in 2004, Franklin worked covertly with the government and relayed allegedly classified information to Rosen and Weissman.

One charge against the pair accuses them of relaying the information in turn to Gilon, the Israeli Embassy staffer.

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