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Filing sheds light on FBI probe

Paul McNulty, then the U.S. Attorney for eastern Virginia, announces indictments against two former AIPAC officials in 2005. (Avi Mayer)

Paul McNulty, then the U.S. Attorney for eastern Virginia, announces indictments against two former AIPAC officials in 2005. (Avi Mayer)

WASHINGTON (JTA) – The FBI was considering expanding its investigation into AIPAC and classified information leaks in early 2005 when the pro-Israel lobbying powerhouse fired two staffers already under scrutiny, according to court documents.In a memorandum filed last Sept. 22 and unsealed last week, defense lawyers for Steve Rosen, the American Israel Public Affairs Committee’s former foreign policy chief, and Keith Weissman, its former Iran analyst, claimed for the first time that the FBI had considered expanding its criminal investigation.AIPAC’s March 2005 firing of Rosen and Weissman, and its decision several months later to stop paying their legal fees, headed off the expanded investigation, according to the sworn defense filing. The filing stems from a defense effort to force AIPAC to resume paying legal fees.The memorandum describes a Feb. 16, 2005 conversation between Abbe Lowell, Rosen’s lawyer, and Nathan Lewin, AIPAC’s lawyer.The U.S. Attorney in eastern Virginia at the time, Paul McNulty, “would like to end it with minimal damage to AIPAC,” the document quotes Lewin as telling Lowell. “He is fighting with the FBI to limit the investigation to Steve Rosen and Keith Weissman and to avoid expanding it.”The filing is compiled from notes by the defense lawyers. The Lewin-Lowell conversation took place during a conference call, according to the memorandum.The claim is significant because until that September filing, the defense allegation of government pressure was confined to a procedural threat: a Justice Department policy dating to 2003 that makes corporations culpable for the alleged crimes of their indicted employees unless the corporation cuts off those employees.The suggestion of a broader inquiry is the first sworn testimony suggesting that the FBI was targeting AIPAC as a whole. “By treating AIPAC as a subject of a criminal espionage investigation, the government threatened to cripple AIPAC if it failed to cooperate,” say lawyers for each defendant in the signed memorandum, led by Lowell for Rosen and John Nassikas for Weissman. “AIPAC is not a manufacturer of widgets, with consumers who would buy its product regardless of its status in a criminal espionage investigation. Rather, AIPAC is a lobbying organization whose success is contingent on its reputation and credibility.”When McNulty brought the indictment six months later, in August 2005, he emphasized that AIPAC was not under investigation. McNulty is now the deputy U.S. attorney general.AIPAC consistently has denied that it was ever under investigation or that it was pressured into firing Rosen and Weissman. “Any suggestion that AIPAC acted at the government’s behest is completely false,” said Patrick Dorton, an AIPAC spokesman. “The organization’s decisions on dismissal and legal fees were made independently and based on the facts and our commitment to doing the right thing in a difficult situation.”Dorton stood by his earlier assertion that Rosen and Weissman were fired “for conduct that was not part of their job and beneath the standards required by AIPAC employees.”Rosen and Weissman were indicted under a never-used 1917 statute that criminalizes the receipt of classified information. Previous prosecutions under the broader Espionage Act have been brought against government employees who leak information, not against those who receive the information. Their trial is set to start June 4. The September filing arose out of an effort by defense lawyers to force AIPAC to continue paying the defendants’ legal fees. Their motion is based on a ruling last summer by a New York judge in another case, involving accounting giant KPMG, that found unconstitutional a Justice Department policy extending culpability to corporations that pay for their indicted employees’ defense. That policy was named the “Thompson memorandum” for former deputy attorney general Larry Thompson, who formulated the policy in 2003 as a way of isolating top executives charged in the Enron-like finance scandals.It’s not clear what happened between July 18 of last year, when the original defense filing limits its allegation of pressure to the Thompson memorandum, and Sept. 22, when the defense claims outright that the FBI was considering a broader investigation. However, lawyers often keep their most explosive charges in check in the initial pretrial stages in hopes of keeping proceedings civil.That clearly did not pan out in this case. Prosecution documents in this motion are still sealed, and the prosecution did not return multiple calls requesting comment. But the Sept. 22 defense filing quotes the government as accusing the defense of seeking “a blank check” for “runaway legal fees.”As of the July 18, 2006 filing, lawyers had claimed $4 million in fees, while AIPAC had offered less than $1 million. AIPAC says it has offered to continue negotiations, but balks at the defendants’ insistence on maintaining the right to sue AIPAC. Judge T.S. Ellis, the federal judge in the case, unclassified the document as part of a broader effort by the defense to make the case as public as possible.In the quoted conversation, Lewin describes a meeting the previous day, Feb. 15, 2005, with representatives of McNulty. Also present at that meeting, according to the filing, was Howard Kohr, AIPAC’s executive director. Rosen had hired Kohr at AIPAC and was behind his rise within the organization. JTA has established that Rosen and Weissman relayed to Kohr the information that is the core of the indictment: A sting operation in the summer of 2004 in which Larry Franklin, a Pentagon analyst working with the FBI, allegedly “leaked” to Weissman Iranian plans to kill Israelis and Americans in northern Iraq. Rosen and Weissman also allegedly relayed that information to Israeli diplomats and journalists. AIPAC sources say Kohr never relayed the information to anyone.The Sept. 22 filing sets out a timeline suggesting correlations between alleged government pressure and the decision to cut off Rosen and Weissman: Kohr and AIPAC’s lawyers meet with prosecutors on Feb. 15, 2005, and prosecutors allegedly invoke the FBI investigation. On Feb. 17, Rosen and Weissman are suspended.On March 15, 2005, government officials meet with Lewin, the AIPAC lawyer, and disclose secretly obtained evidence; on March 18, McNulty’s office allegedly tells Lewin that “AIPAC needed to fire Rosen and Weissman;” and on March 21, they’re fired.Lewin tells Lowell the same day that “while AIPAC did not believe that Rosen and Weissman had committed any crime, they were fired in order to give AIPAC ‘credibility’ with the government,” the filing states.A source close to AIPAC did not deny that the organization believes Rosen and Weissman are innocent of a crime. However, “what the government thought or didn’t think was not a factor in any of the organization’s decisions in this situation,” the source said.Lewin recommended firing Rosen after hearing a tape of a July 2004 conversation Rosen and Weissman had with Washington Post reporter Glenn Kessler, JTA has reported. The two allegedly relayed to Kessler the classified information about the imminent Iranian attack, and then allegedly referred to an “Official Secrets Act.” The government contends that proves Rosen knew he was breaking the law.Sources close to Rosen’s defense say he was making an off-hand, joking reference and did not know he was breaking the law.The Sept. 22 document is the first time a public document describes that information as obtained through a warrant issued by the highly secret Foreign Intelligence Surveillance Act court. In the filing, defense attorneys argue that using FISA evidence to extract concessions from AIPAC is improper. The document also refers, for the first time in public, to the use in the pretrial phase of the “sensitive compartmented information facility” in the Alexandria, Va., courtroom. Defendants often use such a facility to review secretly taped evidence against them.The FISA warrant and the SCIF room suggest the breadth and depth of the FBI investigation, which according to the indictment covered the five years between 1999 and 2004.

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