AIPAC has agreed to pay legal fees for a former staffer who is accused of receiving and relaying classified information on Iran, the latest blow to the prosecution’s efforts to isolate the defendants.
The American Israel Public Affairs Committee’s about-face comes the same week as the judge in the Espionage Act case against two former AIPAC staffers argued that the pro-Israel lobby should be paying their legal fees.
A source close to AIPAC told JTA over the weekend that the organization would pay legal fees for Keith Weissman, AIPAC’s former Iran analyst, "through appeal, if necessary."
The government alleges that Rosen and Weissman received classified information about Iran from a Pentagon analyst and relayed it to journalists, colleagues and Israeli diplomats. It’s the first time that a statute of the 1917 Espionage Act criminalizing civilian use of classified information has been applied.
Defense sources confirm the deal between AIPAC and Arent Fox, the firm representing Weissman. There’s no such deal yet with Abbe Lowell, who represents Weissman’s co-defendant, Steve Rosen, but negotiations are under way.
One reason for the delay apparently is Lowell’s recent switch from the Chadbourne Parke legal firm to McDermott Will and Emery. Lowell would have to work out a payment deal that would address claims by both firms.
AIPAC agreed to drop its condition that Weissman give up any right to sue the organization for wrongful firing, the principal factor that had blocked AIPAC from resuming fees until now.
The same week, Judge T.S. Ellis III, the federal judge trying the case, admonished the government for allegedly forcing AIPAC to cut legal funding for Weissman and Rosen, describing the policy as "unquestionably obnoxious."
It’s the latest sign of trouble for prosecutors whom Ellis has rebuked for "novel" interpretations of the Constitution and for dragging their feet. It also comes as the es! tablishm ent Jewish community appears more emboldened to stand by Weissman and Rosen, who had been isolated since they were fired in March 2005.
"These people have sat around indicted for years. They are entitled to a trial," Ellis said at a May 2 hearing, raising his voice when the prosecution asked for another extension to review classified materials. "You need to get with it now."
A firm trial date has yet to be set for Weissman and Rosen, who were indicted in August 2005.
Ellis’ assumptions that the government forced AIPAC to cut off the defendants and that AIPAC had a contractual obligation to pay for their defense do not carry the weight of law because of his overall rejection of the defense’s motion to dismiss, which alleged that the government had violated the defendants’ Sixth Amendment right to counsel.
Ellis said lawyers for both men had performed more than adequately, even though they had not been paid for nearly two years.
"Owing to the professionalism and resources of these defense counsel, the adequacy of defendants’ representation has not been impaired," he wrote.
The timing may be coincidental: Both AIPAC and defense sources say the lobby’s agreement to fund Weissman’s case was made before Ellis published his decision. But it’s the latest sign that the Jewish establishment is more willing to embrace Rosen and Weissman’s cause.
Last week, the American Jewish Committee blasted the government for attempting to close the trial to public scrutiny, the first time an establishment Jewish group had formally addressed the case since indictments were handed down in August 2005.
"Closing the trial would inappropriately shroud the government’s case in a veil of secrecy," said David Harris, AJCommittee’s executive director. "Judge Ellis was correct when he recently noted that it is important to get it tried as soon as possible or not tried.’ We commend Judge Ellis for insisting that the prosecution has an obligation to ! either e xpeditiously go forward with this case in a public venue open to all or, after nearly two years, re-evaluate the basis for its charges."
Last month the activist group AMCHA filed a friend-of-the-court brief against the government’s motion to have a closed trial. Ellis rejected the brief but threw out the motion as unconstitutional.
The free-speech community is watching the case closely. Steven Aftergood, who directs the Federation of American Scientists’ Secrecy Project, was the first to post Ellis’ most recent decision.
In the decision, Ellis accepts the defendants’ claim that AIPAC fired them and cut off their fees at the government’s behest, something the lobby has always denied. The prosecutors never confirmed the claim, but their argument that such practices were legal led Ellis "to assume that the facts alleged by defendants are true and draw all reasonable factual inferences in their favor."
The defendants alleged that prosecutors applied a policy instituted in 2003 by Larry Thompson, then the deputy attorney general, in response to a string of financial scandals in which corporations were seen to be protecting corrupt executives. The policy assigned culpability to the corporations as long as they employed the defendants or paid their legal fees.
That policy, since discontinued, was "unquestionably obnoxious in general" and "fraught with the risk of constitutional harm," Ellis said.
AIPAC continued to maintain that Weissman and Rosen were fired for cause, not because of government pressure.
"AIPAC made all of its decisions in this case alone based on the facts of the situation and the organization’s intention to do the right thing," Patrick Dorton, a consultant to the lobby, said after Ellis published his decision.
Ellis, who is trying the case in a federal district court in eastern Virginia, also found that under state law the defendants could credibly show that AIPAC had contracted to fund their defense by ad! vancing fees for several months before cutting them off.
"Defendants had a colorable contract right to fee advances from AIPAC," Ellis said, using the legal term for "plausible" or "unfrivolous."
Dorton has said that Rosen and Weissman were fired in March 2005 because of information arising out of the case.