For the former AIPAC officials defending themselves against charges of sharing classified information, a Valentines Day ruling by the judge was like a heart stuffed inside a summons.
No, Judge T.S. Ellis III ruled Feb. 14, he won’t help Steve Rosen and Keith Weissman depose three Israeli diplomats who could bolster their case that they did nothing wrong.
But cumulatively, the judge’s 22-page ruling suggests that the prosecution’s case is so weak that it’s not worth testing the delicate fabric of diplomatic norms that might compel such testimony.
Defense lawyers wanted to depose the three diplomats to show that their alleged conversations with Rosen and Weissman were part of a routine triangle in which U.S. and Israeli officials routinely exchanged information through the offices of AIPAC, using the lobby as a diplomatic “back channel.”
Ellis cited precedent to show that “letters rogatory,” the system in which one country asks another to depose non-American witnesses, should be used only when “necessary and convenient” because the system is “complicated, dilatory and expensive.”
The judge suggested that such an expense in the case against Rosen, formerly the foreign policy chief at the American Israel Public Affairs Committee, and Weissman, once the group’s top Iran analyst, is unnecessary because the defense has plenty of evidence to make its case.
“Although defendants are correct that such testimony will likely be relevant and exculpatory,” Ellis ruled “there is no reason to believe that only these three” Israeli government officials “are able to offer such testimony.”
Ellis adds: “U.S. State Department and other U.S. government officials likely are able to testify as to whether the governments of the United States and Israel routinely used AIPAC as a diplomatic ‘back channel.’ “
Before he completed his term late last year, Daniel Ayalon, the Israeli ambassador to Washington, told reporters that Israel decided not to force the three diplomats to provide depositions because they had done nothing wrong. Ayalon was not among the three.
The trial is set to begin June 4, nearly three years after the Aug. 27, 2004 FBI raid on AIPAC offices that first revealed the investigation, and nearly two years after the August 2005 indictments against Rosen and Weissman.
Larry Franklin, a Pentagon analyst who admitted leaking some of the information, pleaded guilty in the case a year ago. Franklin has been sentenced to 12 years, but the prosecution is likely to recommend a shorter term, likely three years, if it receives his cooperation in the case against Rosen and Weissman
Of the two other U.S. government officials cited in the indictment as sharing information with Rosen and Weissman, David Satterfield has since been promoted to the post of top State Department adviser on Iraq issues, and Ken Pollack, formerly a national security councillor, is now research director at the Saban Center think tank. Apparently there are no plans to charge Satterfield or Pollack.
Spokesmen for the prosecution, the defense, AIPAC and the Israeli Embassy did not provide comment.
Ellis also ruled that defense lawyers may present exculpatory evidence of the close Israel-U.S. relationship, and of AIPAC’s role in nurturing that relationship. He said he would allow, even encourage, testimony showing that the AIPAC-U.S.-Israel triangle benefits all three parties.
“It bears mention that the more specific the details of the alleged cooperation between the two governments, and the more congruent the relationship between the alleged policy cooperation and” the national defense information, or NDI, “at issue in the case, the more probative such cooperation becomes,” he ruled.
“Testimony that disclosures of alleged NDI were viewed by defendants, or their contacts in the diplomatic establishment, as beneficial to the United States’ interests is thus exculpatory,” he ruled.
That’s key because the 1917 statute being used to prosecute Weissman and Rosen criminalizes the receipt of “information relating to the national defense” which the possessor has “reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.”
The prosecution had hoped to show that Rosen and Weissman knew they could be harming the United States by communicating to the three Israeli diplomats the classified information they allegedly received from U.S. officials.
Ellis’ latest ruling means that defense lawyers can “put on evidence that AIPAC serves as a back channel” between the United States and Israel, a source close to the defense said. “Evidence of the policy cooperation between the United States and Israel is relevant.”
It’s the second time Ellis has dealt prosecutors a blow in handing them a seeming victory. Last summer he upheld the constitutionality of the government’s case, but nonetheless ruled that the latter part of the statute — concerning information that did not harm the United States but was “to the advantage of any foreign nation” — was unconstitutional.
In that ruling he cited precedent to show the “extravagant and absurd consequences” of criminalizing information-sharing with an ally.
That left the prosecution with having to prove harm was done to the United States. That will be even more difficult after last week’s ruling because Ellis has made clear that he will allow testimony describing such alleged information exchanges as being part of a mutually beneficial relationship.
It’s the first time prosecutors have used the 1917 statute. The case has set off alarm bells among free-speech advocates, who say it would seriously impair reporting.
Steven Aftergood, who directs the Federation of American Scientists’ Secrecy Project and has led criticism of the case, found positive notes in Ellis’ latest ruling.
“Similar reasoning would imply that if a news organization published classified information in the belief that doing so was beneficial to the United States, that would take it beyond the scope of the Espionage Act’s prohibitions on unauthorized disclosure of national defense information,” Aftergood wrote on his blog.
Aftergood also said Ellis was placing an “increasing burden of proof” on the prosecution by setting a tough threshold to prove that the defendants knew they were harming national interests.
Ellis demands that the prosecution prove that the defendants “possessed all the culpable mental states that would be necessary for a conviction,” including the realization that they were “willfully” joining a conspiracy to reveal classified information and that the information could be used to harm the United States.
In a separate ruling on the same day, Ellis rejected a defense request to suppress statements made to investigators just prior to the FBI raid. Rosen and Weissman allege they were tricked into the conversations because the FBI pretended they were not the target of the investigation.