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Rice Subpoena Allowed in Aipac Case As Judge Pushes Trial Date to August

April 25, 2006
See Original Daily Bulletin From This Date

Two former lobbyists for the American Israel Public Affairs Committee say Condoleezza Rice was their informant on sensitive national security matters. The claim, laid out in a courtroom here last Friday, intensified the drama surrounding a trial that could further roil a Washington political establishment already consumed by cases involving "official" and "unofficial" leaks.

The trial date, originally scheduled to begin April 25, has now been set for Aug. 7, even as the judge in the case continues to suggest the case might not go to trial at all.

In last week’s pretrial hearing, lawyers for Steve Rosen, AIPAC’s former foreign policy director, and Keith Weissman, its former Iran analyst, persuaded federal Judge T.S. Ellis III to allow a subpoena for the secretary of state and three other current and former Middle East policy officials.

Rosen and Weissman were indicted last August on charges that they relayed classified information to fellow AIPAC staffers, journalists and diplomats at the Israeli Embassy in Washington.

AIPAC fired Rosen and Weissman in March 2005, saying their actions did not comport with the group’s practices.

Federal prosecutors have made clear that AIPAC is not suspected of wrongdoing.

The judge continued to express grave doubts about the government’s case, sympathizing with defense claims that it could impinge on free speech rights, and that it lacked precedent.

When Kevin DiGregory, the lead prosecutor, pointed out that the First Amendment had never been cited in a similar case, Ellis chided him, saying: "Well, no case has been like this one."

Setting out a pretrial schedule, Ellis pointedly would not count out a dismissal before the start of the trial and several times qualified prospective dates, saying "if there is going to be a trial."

The indictment handed down against Rosen and Weissman alleges that they solicited classified information from mid-level government officials, including Larry Franklin, a former Pentagon Iran analyst who pleaded guilty in January to leaking information to the two defendants.

Defense lawyers have contended that such exchanges were routine and extended throughout government. In addition to Rice, the slate of 10 witnesses they subpoenaed last month included: Stephen Hadley, the national security adviser to the White House; Elliott Abrams, Hadley’s deputy; William Burns, the current ambassador to Moscow and formerly the top U.S. envoy to the Middle East; David Satterfield, formerly Burns’ deputy and currently the deputy ambassador to Iraq; and Gen. Anthony Zinni, the top envoy to Middle East peace talks in 2001-2002.

At the time, Bush administration officials dismissed the subpoenas against Rice, Bush’s former national security adviser, and the others as a "stunt."

But at the pre-trial hearing April 21, Rosen’s lawyer, Abbe Lowell said Rice had not merely been Rosen’s interlocutor, she had leaked information identical to and at times more sensitive than examples cited in the indictment.

In addition, Lowell said, the information Rice provided was more "volatile" than the information described in the indictment. He also suggested the meeting with Rice took place before the meetings with the alleged co-conspirators.

Lowell would not elaborate on what information he was referring to. The indictment outlines exchanges with Franklin, Satterfield and Kenneth Pollack, a national security council staffer during the Clinton administration, that covered topics including U.S. policy toward Iran; and Iranian and al-Qaeda involvement in terrorist acts.

The claim that Rice was an informant caught the prosecution off guard, but Ellis said it was not incumbent upon the defendants to warn the prosecution of new evidence.

Lowell asked for an additional meeting with the judge — with no prosecutors present — to further describe the testimony he anticipated from Rice and others. Ellis said he looked forward to "a lot of juicy information."

Ellis had to rule on the request for subpoenas because four of the subpoenas — for Rice, Burns, Satterfield and Zinni — fell under special rules of the district court in Alexandria, Va., that require subpoenas for Cabinet members, ambassadors and generals to be approved by the presiding judge.

Lowell said the other six subpoenas had already been sent to the prospective witnesses.

Rice’s testimony is not yet guaranteed. The State Department must clear subpoenas to its staff, and witnesses have a right to ask subpoenas to be squashed. But Lowell made it clear he would not let the government off the hook, likening this case to the recent controversy over leaks on the Iraq war President Bush has defended as "authorized" and those he has attacked as illegal.

Also at the April 21 hearing, called on a few days notice, the judge sided with the defense’s claim that the case is unprecedented.

Government lawyers have striven to show that prosecution under a 1917 statute that criminalizes the receipt of classified information is not unprecedented. Rosen’s lawyer, Lowell, said the government had failed to show true precedent and had instead "cut and pasted" elements of four or five unrelated cases to establish precedent.

Ellis agreed, calling Lowell’s arguments "substantial." "Mr. Lowell is absolutely right. It is an unprecedented case. It is novel," he said.

It was not all good news for the defense. Lowell wanted Ellis to order depositions from three Israeli diplomats who allegedly received information from Rosen and Weissman. One of the diplomats is Naor Gilon, the political officer at the Israeli Embassy until last summer. The defense has been unable to persuade the diplomats to voluntarily comply.

Ellis refused, saying he did not see the point because his orders carried no weight in Israel, where the diplomats now reside.

Lowell acknowledged as much, but apparently hoped a formal order from the judge would embarrass the Israelis into volunteering; ever since the Jonathan Pollard spy case in the late 1980s, Israeli officials want to be seen as cooperative with American legal cases.

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