Sentence in Franklin Case Sends Chill Through Free-speech Community

It was surprising enough that the judge quadrupled the prosecution’s recommended sentence for Lawrence Franklin, from three years to more than 12. But the true bombshell at the sentencing of the former Pentagon analyst, who is at the center of the case involving pro-Israel lobbyists and classified information, came as lawyers were shutting their briefcases last Friday.

That’s when U.S. District Judge T.S. Ellis III told the courtroom in Alexandria, Va., that he believed civilians are just as liable as government employees under laws governing the dissemination of classified information.

“Persons who have unauthorized possession, who come into unauthorized possession of classified information, must abide by the law,” Ellis said. “That applies to academics, lawyers, journalists, professors, whatever.”

It was difficult to assess whether Ellis was thinking out loud or was pronouncing his judicial philosophy. The judge earned a reputation as a voluble off-the-cuff philosopher when he adjudicated the case of John Walker Lindh, the “American Taliban.”

But if those are Ellis’ jury instructions in April, when two former staffers of the American Israel Public Affairs Committee go on trial, the implications could have major consequences — not just for Steve Rosen and Keith Weissman, but for how Americans consider national security questions.

Defense lawyers for Rosen and Weissman have joined a free speech watchdog in casting the case as a major First Amendment battle.

“The implications of this prosecution to news gatherers and others who work in First Amendment cases cannot be overstated,” lawyers for the former AIPAC staffers wrote in a brief earlier this month supporting an application from the Reporters Committee for the Freedom of the Press to file an amicus brief.

The case is believed to be the first in U.S. history to apply a World War I-era statute that criminalizes the dissemination of classified information by U.S. civilians.

Franklin pleaded guilty to a similar statute barring government employees from leaking classified information. That statute rarely has been prosecuted; before Franklin, the last successful prosecution experts can recall was in the 1980s.

JTA has learned that the defense team for Rosen and Weissman last week filed a brief by Viet Dinh, the former assistant attorney general who was the principal drafter of the USA Patriot Act, arguing that federal prosecutors in this case were interpreting classified information protections much too broadly.

Dinh confirmed to JTA in a brief phone conversation that he had signed the brief, which is classified.

Franklin, a mid-level Iran analyst at the Pentagon, admitted to leaking information to Rosen and Weissman in 2003 because he wanted his concerns about the Iranian threat to reach the White House.

His Pentagon colleagues were focused on Iraq, and Franklin believed AIPAC could get his theories a hearing at the White House’s National Security Council. He also leaked information to Naor Gilon, the former chief political officer at the Israeli Embassy.

By the summer of 2004, government agents co-opted Franklin into setting up Rosen and Weissman. He allegedly leaked classified information to Weissman about purported Iranian plans to kill Israeli and American agents in northern Iraq.

Weissman and Rosen allegedly relayed that information to AIPAC colleagues, the media and Gilon. AIPAC fired the two men in March 2005.

In sentencing Franklin, Ellis described the former Pentagon analyst’s motives as “laudable,” but said his motives were beside the point.

“It doesn’t matter that you think you were really helping,” Ellis said. “That arrogates to yourself the decision whether to adhere to a statute passed by Congress, and we can’t have that in this country.”

Those views could be bad news for Rosen and Weissman, who hoped to rest part of their defense on an altruistic desire to save lives.

More to the point, it suggests Ellis believes government statutes are sacrosanct, however little they have been used. That’s what concerns free-speech advocates.

“These provisions of the Espionage Act are widely recognized in the legal literature as incoherent,” said Steven Aftergood, who heads the government secrecy project for the Federation of American Scientists, a nuclear watchdog that relies heavily on leaks for its information.

“We do not arrest and charge every reporter who comes into possession of classified information. We do not arrest people who receive leaks of classified information, we never have,” he said. “For the judge to suggest otherwise is quite shocking.”

Lucy Dalglish, the Reporters Committee executive director, described the case as “terribly important.”

“If we had a situation where journalists can be punished for receiving information, hello police state,” she said.

At the Herzliya Conference in Israel — an annual gathering for top Western security officials that Franklin once attended — participants said the case was a central behind-the-scenes topic of discussion, and they girded themselves for the consequences of the Rosen and Weissman trial.

Malcolm Hoenlein, executive vice chairman of the Conference of Presidents of Major American Jewish Organizations, told the Jerusalem Post that the climate in Washington was “unacceptable.”

That “two patriotic American citizens who are working for Jewish organizations who did nothing to violate American security should have to stand trial and be subject to the public scrutiny and public humiliation, frankly I find very disturbing, and a matter that we all have to look at in a much more serious way,” Hoenlein said.

Franklin’s sentence seemed exceptionally tough, given the prosecution’s tentative agreement to recommend a three-year sentence if Franklin cooperated in the case against Rosen and Weissman.

Ellis’ sentence — abiding by strict government sentencing guidelines — was mainly a technicality, since Franklin is not going to go to jail until his cooperation with the prosecution is complete. Prosecutors said they would exercise their prerogative to consider freeing Ellis from applying government sentencing guidelines.

In that case, Ellis is likely to apply the three-year deal prosecutors worked out with Plato Cacheris, Franklin’s lawyer.

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