WASHINGTON (JTA) – It could all come down to what the meaning of “secret” is.
Two former staffers of the American Israel Public Affairs Committee who are facing charges that they traded in secrets now have on their side the two most recent arbiters of what is and isn’t a U.S. secret.
William Leonard, who led the Information Security Oversight Office until last year, and his predecessor, Steven Garfinkel, were listed March 14 on the docket of the U.S. Court for the Eastern District of Virginia as among eight expert defense witnesses in the case against Steve Rosen, AIPAC’s former foreign policy chief, and Keith Weissman, its former Iran analyst.
The Oversight Office, a branch of the National Archives, interprets the law and presidential directives to determine what should remain classified and what should be made available to the public.
The agreement of Garfinkel and Leonard to serve as experts for the defense sets up the trial as a precedent-setting fight over the limits of secrecy.
The trial is currently scheduled to begin April 29, but is likely to be postponed for a sixth time.
The crux of the charges against Rosen and Weissman is that they broke a long-dormant section of a 1917 statute that criminalized civilians who receive and disseminate classified information. A prosecution relying exclusively on the section of the statute is unprecedented.
The heart of the 2005 indictment is a sting operation conducted a year earlier in which a government agent told the defendants that he had information that could prevent the imminent killing of Israelis. Rosen and Weissman relayed the information – which turned out to be a fiction – to journalists and Israeli diplomats.
Steven Aftergood, who runs the Federation of American Scientists secrecy project, said that securing the men as witnesses is a major coup for the defense and a sign that the government’s case is not going well.
“It could be a turning point” in the trial, Aftergood told JTA. “It strikes me as really significant that these individuals who have been the voice of classification authority will be appearing not for the prosecution but for the defense. It’s a sign of how far the government has strayed from the consensus view.”
Another sign of difficulty for the government was the recent departure of Kevin DiGregory, the lead prosecutor in the case. DiGregory left for private practice on March 3 – less than two months before the trial is set to start.
In order to make the sting stick, prosecutors will detail a number of other meetings listed in the indictment in which Rosen and Weissman allegedly met with senior U.S. government officials and discussed the kind of information that Leonard and Garfinkel routinely reviewed.
The two former classification czars are on the record with their view that the government over-classifies information, to the detriment of legitimate efforts to keep secrets secret.
In a speech the same day that he appeared on the Rosen-Weissman trial docket, Leonard likened the use of secrecy to the strategic use of military force in a counterinsurgency.
“The more force you use, the less effective it can be,” he said at a conference on freedom of information at the First Amendment Center. “Our nation’s bureaucracies must similarly use government secrecy more selectively and recognize that in today’s environment, less secrecy and increased transparency can, at times, be more effective in denying adversaries the ability to harm our nation.”
Also listed as a defense expert is Carl Ford, the State Department’s top intelligence official from 2001 to 2003. Ford’s leadership coincides with much of the timeline cited in the indictment against Rosen and Weissman. He would have been privy to much of the specific information they allegedly received.
Ford also authored the minority report in a pre-Iraq war national intelligence estimate, casting doubts on the insistence of other intelligence agencies that Saddam Hussein had advanced in his weapons of mass destruction capability or that he had ties with Al Qaida. His caveats were swept aside, but his views have since been vindicated.
The other five names on the expert witness list for the defense might in other contexts be a lineup for a debate on the pro-Israel lobby: Critics of AIPAC appear side by side with its allies. They include:
* Morton Halperin, the State Department’s top policy planner in the Clinton administration, directs the Open Society Policy Center, funded by billionaire George Soros. Halperin was a key figure in a recent abortive effort to set up an AIPAC alternative that would have advocated for a more dovish pro-Israel tilt in American foreign policy.
* Edward Walker, who once headed the State Department’s Near East Affairs desk and was also an ambassador to Israel, has called on Arabs to set up a countervailing voice to AIPAC.
* Samuel Lewis and Matthew Parris, former ambassadors to Israel and Turkey, respectively, are affiliated with the Washington Institute for Near East Policy, a think tank launched by AIPAC backers.
* Max Frankel, the former executive editor of The New York Times, who has written extensively about overclassification.
A defense source said the witnesses agreed to appear without being paid.
The point of the defense witnesses is not their opinion of AIPAC or Israel but of how information is disseminated, lawyers said. On that score, said Baruch Weiss, a lawyer for Weissman, “they’re a pretty terrific bunch.”
“We have the disclosers, the disclosees and the monitors of the disclosers,” Weiss said. “We have State Department folks who deal with the public, we have Max Frankel on the receiving end,” and Garfinkel and Leonard who were “entrusted with the responsibility and oversight of the entire classification system.”
Similarly, the three witnesses named by the U.S. government in January have little to do with Israel policy and instead will argue for a broad use of classification.
They include Maj. Gen. Paul Dettmer, the Pentagon’s assistant deputy chief of staff for intelligence, surveillance and reconnaissance; William McNair, a retired top CIA official who is a government mainstay when the breadth of its classification is challenged; and Dale Watson, the FBI’s former executive assistant director for counterterrorism and counterintelligence, who headed the agency’s investigation into the Sept. 11, 2001 attacks.
The announcement of the expert witnesses does not mean they will testify; each side may still challenge the other’s witnesses, and the defense witnesses must receive security clearance before examining the pertinent documents.
That means that the April 29 trial date – at least the fifth to be set so far for the trial – is likely to be postponed again for a few more weeks.
That will give DiGregory’s replacement as the top man on the prosecution team, James Trump, a little more time to study the case.
DiGregory left to join the Washington office of Manatt, Phelps and Phillips, a firm that deals primarily with intellectual property, an area that overlaps with his experience in prosecuting cybercrime.
Leaving so soon before a trial date is unusual but not unprecedented, former colleagues of DiGregory told JTA, noting that prosecutors often leave for personal reasons.
Bill Mateja, a former senior counsel at the U.S. Justice Department who is now in private practice, said it was not good news for the government.
“The prosecution will be at a disadvantage,” Mateja said. “You can’t replace someone with that background in two months, and get someone up to speed in that time.”
DiGregory did not return a request for comment.
