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Subpoenas to put Bush team under scrutiny

Condoleezza Rice addresses AIPAC's national summit in October, 2004. (AIPAC)

Condoleezza Rice addresses AIPAC’s national summit in October, 2004. (AIPAC)

WASHINGTON (JTA) – Subpoenas issued to U.S. Secretary of State Condoleezza Rice, National Security Advisor Stephen Hadley and other top Bush administration officials could end up shedding unprecedented light on the Bush administration’s inner workings and the government’s dealings with the pro-Israel lobby.

In an unusually broad ruling Friday in the classified information case against two ex-officials at the American Israel Public Affairs Committee, a federal judge allowed the defense to subpoena 15 administration officials over the objections of the Bush administration.

In addition to Rice and Hadley, the list also includes Elliot Abrams, the deputy national security adviser who is also the administration’s top policy official on the Middle East; Richard Armitage, the former deputy secretary of state; Paul Wolfowitz, the former deputy secretary of defense; and Douglas Feith, a former undersecretary of defense.

U.S. District Court Judge T.S. Ellis III in Alexandria, Va., not only ruled as relevant government conversations with the two defendants – Steve Rosen, AIPAC’s former foreign policy boss, and Keith Weissman, his deputy and the lobby’s top Iran analyst – but also discussions that involved only U.S. officials.

In addition, Ellis said the conversations between officials and other AIPAC representatives were in play. Such conversations are bound to reveal how AIPAC has been used as an instrument by one faction in government to influence or head off another, especially in the fight over how hard a line to take against Iran.

Defense lawyers were elated with the ruling.

“For over two years we have been explaining that our clients’ conduct was lawful and completely consistent with how the U.S. government dealt with AIPAC and other foreign policy groups,” said Rosen’s lawyer, Abbe Lowell, in a statement issued also on behalf of Weissman’s lawyer, John Nassikas.

The attorneys each work at top-flight Washington firms: Lowell at McDermott, Will and Emery and Nassikas at Arent Fox.

“We are gratified that the judge has agreed that the defense has the right to prove these points by calling the secretary of state and all of these other government officials as our witnesses,” Lowell said. “We look forward to the trial of this case.”

The government may still oppose the subpoenas, but Ellis warned that this could endanger its case.

“The government’s refusal to comply with a subpoena in these circumstances may result in dismissal or a lesser sanction,” the judge wrote.

Rosen and Weissman were charged under a never-used statute in the 1917 Espionage Act that criminalizes the receipt and dissemination of classified information by civilians. Free-speech advocates, press groups and lobbyists are closely watching the case.

The defendants have long argued that conversations outlined in the August 2005 indictment were routine and part of the government’s unofficial practice of using the pro-Israel lobby to convey information to Israel, the press, other nations or even other branches of government.

Ellis in his ruling agreed that the defense was attempting to make a valid argument.

“Defendants are entitled to show that, to them, there was simply no difference between the meetings for which they are not charged and those for which they are charged,” Ellis wrote, “and that they believed that the meetings charged in the indictment were simply further examples of the government’s use of AIPAC as a diplomatic back channel.”

Another five officials were left off the list for reasons Ellis kept classified. Defense sources said it was not clear if Ellis had ruled them out absolutely, and that defense lawyers would seek his guidance on the matter.

The government did not raise objections to the four subpoenas for officials who were identified in the indictment. One of those officials, Lawrence Franklin, an Iran analyst at the Pentagon, has pleaded guilty to leaking classified information and was sentenced to more than 12 years; he has not begun his sentence. Another, David Satterfield, is now Rice’s top adviser on Iraq issues.

The core of the indictment centers on a sting operation in the summer of 2004, when Franklin leaked to Weissman false information purporting that Iranian forces planned to kill Israeli agents in Kurdistan. Rosen and Weissman allegedly relayed the information to Israeli diplomats and journalists, and tried to pass it on to Abrams.

Ellis dismissed out of hand all of the prosecution’s objections, including whether such subpoenas would interfere with the business of government.

“Inconvenience to public officials in the performance of their official duties is not a basis for infringing a defendant’s Sixth Amendment compulsory process rights,” he wrote.

More broadly, Ellis dismissed government contentions that including conversations among government officials, or between government officials and other AIPAC staffers, amounted to hearsay.

“Such meetings may nonetheless have affected defendants’ states of mind if the contents of those meetings were later communicated to them by other AIPAC employers,” Ellis wrote, allowing all relevant conversations between any AIPAC staffer and a government official to be included.

Ellis added: “Conversations between two or more government officials, even if not communicated to defendants, might be relevant to show that particular government officials authorized the disclosure of non-public information to defendants or to AIPAC,” he wrote. “For instance, if defendants can demonstrate that a high-ranking government official authorized his subordinate to disclose NDI” or national defense information “to AIPAC employees, such an authorization would be exculpatory to defendants.”

Under this allowance, defense lawyers are free to probe Defense Department officials, including Wolfowitz, who might have sought to head off the State Department’s Iran policy with selective leaks through AIPAC. Wolfowitz and others at the Pentagon toed a considerably harder line on Iran than those at State, and would have used AIPAC – also hard-line in how to deal with the Islamic Republic – in lobbying Congrss and shaping public opinion.

“We are aware of the order authorizing the potential issuance of subpoenas in the Rosen and Weisman case should the case go to trial,” said Gordon Johndroe, the spokesman for Hadley and Abrams. “It is our understanding that no subpoenas have been issued at this time. We cannot comment further because this is an ongoing criminal prosecution.”

AIPAC and the State Department refused comment.

In another ruling Friday, Ellis summarized arguments in how classified information may be used. His ruling was contained in a separate, sealed order; nevertheless, a footnote in the publicly released document revealed that he would allow the government to employ the rarely used secret witness rule for “only four minutes and six seconds, out of a total of four hours, thirteen minutes and fifty-one seconds of recorded conversations” to be considered at trial.

That was reduced from the government’s original request for “eighteen minutes and twenty-four seconds of recorded conversations and thirty-six documents,” Ellis said in the footnote.

The secret witness rule allows the government to devise substitutes and codes to make information available to the jury, but to keep it from the public.

In the same summary, Ellis again stressed that the government must show that Rosen and Weissman knew that dealing in the classified information would harm U.S. interests, not merely that it would benefit Israel. The government, he said, must prove that Rosen and Weissman “knew that the information the conspiracy sought to obtain and disclose was NDI, i.e., knew that the information was closely held by the government.”

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