AT LAW First They Came for the Jews
A prosecution under the Espionage Act threatens the First Amendment.
BY DOROTHY RABINOWITZ
Monday, April 2, 2007 12:01 a.m.
Early in June 2004, an employee of the American Israel Public Affairs Committee, AIPAC--better known by its media tag, "the powerful Israeli lobby"--received an urgent phone call. Pentagon analyst Lawrence Franklin, a specialist on Iran, informed AIPAC lobbyist Keith Weissman that they had better meet because he had news of the most important kind to disclose. Mr. Weissman not surprisingly agreed to the rendezvous, held in Pentagon City, Va., where he was told about an imminent, Iran-directed assault on American troops and Israeli agents in Iraq. First, though, Mr. Franklin delivered a warning whose purpose would be clear only later. What he was about to tell him was highly classified, "Agency stuff," and having it could get him into trouble, he informed Mr. Weissman.
Impelled by the urgency of the message, the lobbyist nonetheless quickly shared it with his senior colleague, Steve Rosen, director of foreign policy issues for AIPAC. Hoping to raise the alarm about the imperiled Americans and Israelis, the two then contacted a Washington Post reporter (who filed no story on the matter) and an Israeli embassy officer.
Mr. Weissman didn't know for some time that his trusted Pentagon informant--a man he and his AIPAC colleague had met with several times before--had, at this particular meeting, been wearing a wire for the FBI. Or that his warning that he was sharing highly classified stuff had been spelled out for the purpose of evidence gathering. Neither of the AIPAC lobbyists knew, then, that they had been entrapped in a sting, to lead ultimately to a remarkable legal show. Their trial, which begins this June, marks the first ever attempt by government prosecutors to convict private citizens under the 1919 Espionage Act. Nor did Larry Franklin have any idea, either, of the trap in which he was himself now ensnared.
Mr. Franklin's problem began when he was spotted lunching with Steve Rosen, for some time the object of FBI surveillance. The Iran specialist had first met with Messrs. Rosen and Weissman in February 2003, meetings repeated on at least three other occasions. The two AIPAC employees had reason to see in Mr. Franklin, a reserve Colonel in the U.S Air Force, a staunch patriot who held values and geopolitical views much like their own. Mr. Franklin's driving concern--the danger posed by a terrorist Iran, and the need for vigorous countermeasures by the U.S.--played no small role in their discussions. The centerpiece of the indictment to come concerned his disclosures to Steve Rosen about an internal policy document on Iran, which, the government alleged, was classified.
The sympathetic bond (characterized as a conspiracy in the government's indictment) between the Pentagon analyst and the AIPAC employees abruptly unraveled when FBI agents paid Mr. Franklin a home visit on June 30, 2004. Appealing to his patriotism, they persuaded him to cooperate, telling him that the two lobbyists were up to no good, and might be endangering American interests. Perhaps even more persuasive was the FBI's discovery in his house of 83 classified documents--material he had taken to work on at home, as he had done repeatedly despite warnings from his Pentagon supervisors that this was impermissible.
He was to enjoy nothing of the good fortune of Sandy Berger, former National Security Adviser for President Clinton, who pleaded guilty in 2004 to making off with highly classified documents related to that administration's policy on terrorism--papers he was observed stuffing into his pockets while sitting in the secure reading room of the National Archives. Mr. Berger was charged with a misdemeanor and paid a $10,000 fine. Former CIA director John Deutch, who also faced charges of mishandling government documents, was pardoned on Mr. Clinton's last day in office.
Anguished, his wife ill, and faced with loss of his job--now a likely possibility, as the FBI informed him--Mr. Franklin agreed to help gather evidence on Messrs. Rosen and Weissman.
By Aug. 27, FBI agents apparently felt they'd gathered enough--enough, at least, to go public, via a leak to CBS's Lesley Stahl, about the Pentagon mole they had succeeded in unmasking. FBI investigators soon after informed a stunned Larry Franklin, who had cooperated with them without receiving any promise of consideration about those classified materials, that he now faced serious prison time. He would have been still more stunned had he known of the elaborately detailed indictment to come, charging him, among other allegations, with conspiracy to gather and unlawfully transmit national defense information. He had yet to appreciate what it meant that his alleged co-conspirators were lobbyists for AIPAC.
The tone of the CBS News story (Aug. 27, 2004) provided more than a few clues on this point. In a higher than usual state of excitement, Ms. Stahl announced that the FBI was, in agent terminology, about to "roll up" a suspected spy who had given classified information to Israel, and "at the heart of this, two people who work at AIPAC, the powerful pro-Israeli lobby." The investigators had "concerns," we learned: "Did Israel also use the analyst to try to influence U.S. policy on the war in Iraq?" The analyst, furthermore, had "ties to top Pentagon officials Paul Wolfowitz and Douglas Feith."
The entire investigation, with wiretaps, surveillance and photography, Ms. Stahl announced, had been headed up by the FBI's David Szady. It was a name she had reason to know well. This FBI luminary was the same agent who had headed another investigation--the subject, just two years earlier, of her own scathing "60 Minutes" report about the FBI's obsessive, confident, willfully blind pursuit of CIA counterintelligence agent Brian Kelley, whom the bureau suspected of being a Soviet mole in the late '90s.
While Mr. Szady and his agents persisted in pursuing an innocent man for three and a half years, solemnly citing evidence for their charges that would have done Inspector Clouseau proud (a hand-drawn map supposedly of the mole's site of operation turned out to be a map of Mr. Kelley's jogging routes through a park), the real mole continued to turn vital intelligence over to his KGB handlers. That mole was the FBI's very own Robert Hanssen, who had gone undetected thanks to Mr. Szady's insistence that his agents had the goods on Brian Kelley.
None of this history got a mention in Ms. Stahl's report on the new Szady investigation she'd been privileged to disclose, unlike the innuendo about the alleged spy's ties to those Pentagon officials, Messrs. Wolfowitz and Feith.
It was a mere hint of things to come. News of the spy story, it was clear, had brought new life to the obsessed. From quarters of the left and right, and not infrequently the mainstream media came, now, daily rumblings about the spy for Israel, his ties to neoconservatives in the administration, the influence and machinations of the neocons, their effort to push the war in Iraq. More than a few of these meditations on Israel, AIPAC and the power of the neocons bore a strong resemblance to a kind of letter that occasionally shows up in journalists' mailboxes. The sort that bring punctiliously drawn diagrams, cosmic in scope, with endless tiny boxes, and tinier labels, handprinted with a concentration only the deranged can summon, all intended to illustrate the sinister interconnectedness among certain institutions and persons--the president, the Pope, CIA, World Bank, the Association for Dental Implants and so on.
Steven Rosen, 63 at the time of his indictment in August of 2005, and Keith Weissman, age 53, both shortly thereafter lost their jobs at AIPAC, whose leadership was clearly alert to the disastrous potential in this case. AIPAC itself was not threatened with indictment, though suggestions of the behavior it would do well to follow were plain enough, as when government attorneys pointedly and repeatedly asked AIPAC's lawyer if the lobbyists still were employed there, and if the agency was still paying their health insurance and their legal fees. Not long after, the answer to all three was no. Mr. Rosen's attorney, Abbe Lowell, and Mr. Weissman's--John Nassikas and Baruch Weiss--are carrying their clients, who have by now racked up millions in legal fees.
In October 2005, with pro bono attorney Plato Cacheris at his side, Lawrence Franklin pleaded guilty--a decision he could not avoid making, given the indisputable proof of offense--to keeping classified documents at his home. His indictment charged much more--conspiring to communicate national defense information to persons not entitled to receive it, meetings with representatives of foreign nation A (Israel), and Messrs. Rosen and Weissman, cited as furtherance of a conspiracy. The former desk officer for Iran stood charged with conspiracy to "advance his own personal foreign policy agenda" and influence people in government. One Washington insider, hearing this, tartly noted that if all government officials who leaked material to effect policy changes were charged and convicted, the prisons would soon be packed.
The guilty plea brought a sentence of 12 years, seven months--not a light one. Mr. Franklin's hope for reducing it hinges on the cooperation he gives government prosecutors in the trial of the lobbyists. The role assigned him has from the beginning been noteworthy--a reversal of norms. Government officials don't normally get to take part in stings of ordinary citizens. But Mr. Franklin, an official with top security clearance, sworn to protect classified information, is the one asked to wear a wire to amass evidence against the two men with whom he has allegedly conspired. It usually goes the other way around. There is a reason that the government official caught taking a bribe is the object of the law's pursuit, rather than the citizen who has tried to pay him off--and why it is the citizen, crooked as he may be, who wears the wire and gets the possibility of a deal. That reason, of course, is the higher standard expected of those sworn to uphold their offices. If nothing else, the role assigned Mr. Franklin testifies to the government's singular focus on nailing the AIPAC lobbyists.
Even so it remains to be seen what help Mr. Franklin will give the prosecutors at the forthcoming trial of Messrs. Rosenvand Mr. Weissman. In the course of his guilty plea, the otherwise respectful Mr. Franklin forcefully objected to the government's characterization of the self-typed paper about Iran he'd faxed to Mr. Rosen--a document at the heart of one of the significant charges against the lobbyist--as "classified."
"It was unclassified," Lawrence Franklin told the court, "and it is unclassified."
The government would "prove that it was classified," announced the U.S. attorney.
Mr. Franklin: "Not a chance."
What chance the defendants--who asked no one for classified information--have of acquittal and the avoidance of prison remains to be seen. Though Judge T. S. Ellis rejected defense motions to dismiss the charges on constitutional grounds, his early rulings have so far shown a keen appreciation of the meaning this case. In this he stands in sharp contrast to the nation's leading civil rights guardians, these days busy filing lawsuits against the government and fulminating on behalf of the rights of captured terrorists in Guantanamo and elsewhere, while accusing the U.S. of failing to provide open trials and assurances that the accused have the right to view the evidence against them. As of this day neither the ACLU nor the Center for Constitutional Rights has shown the smallest interest in this prosecution so bound up with First Amendment implications. Nor has most of the media, whose daily work includes receiving "leaks" from government officials far more damaging to national security than anything alleged in this case. In this as in the Scooter Libby matter, the desire to see Bush Administration officials nailed apparently counts for more than First Amendment principle.
The government has also moved (in the interest of protecting classified information) to impose strict limits during the trial, on the testimony the public and press will be allowed to hear. If the proposal is allowed, significant portions of the testimony will be available only in the form of summaries. Witnesses, furthermore, would not be allowed to deliver certain testimony directly to jurors, who would instead be told to look at secret documents. It will be, as a member of the Reporters Committee For Freedom of the Press, now opposing the government efforts, describes it, "a secret trial within a public trial." (Dow Jones, publisher of this newspaper, has joined the Reporters Committee in filing an objection.)
The prosecutors may in fact need all the help they can get in this trial, which, the judge has noted, concerns actions that go to the heart of First Amendment guarantees. Above all, the government will have to prove that those charged with disseminating classified information "knew that its disclosure could injure the national defense."
One of the charges against Mr. Rosen was that he enabled Mr. Franklin's illegal transmission of classified material. This occurred, according to the indictment, when Mr. Franklin said he wanted to fax a paper to Mr. Rosen, and asked for his fax number. Mr. Rosen's crime, the charge establishes, was in giving him that fax number. Such is the sort of crime for which he could get upwards of 20 years, and Mr. Weissman, 10. The document, whose classified status the government claimed it could prove, was in fact a single sheet typed by Mr. Franklin, consisting of eight bullet points stating the offenses of which Iran was allegedly guilty.
As Judge Ellis noted, the government didn't allege that the lobbyist ever asked for the document, or that it had any classification markings, or that Mr. Rosen ever even received or viewed the paper.
The consequences of this spectacle--the indictment of two citizens for activities that go on every day in Washington, and that are clearly protected under the First Amendment--far exceed any other in the now long list of non-crimes from which government attorneys have constructed major cases, or more precisely, show trials. A category in which we can include the mad prosecutorial pursuit of Mr. Libby.
The government could succeed in this prosecution of two non-government professionals doing what they had every reason to view as their jobs--talking to government officials and reporters, and transmitting information and opinions. If such activities can be charged, successfully, as a "conspiracy," every professional, every business, every quarter of society--not to mention members of the press--will have reason to understand that this is a bell that tolls not just for two AIPAC lobbyists, but also for countless others to face trials in the future, for newly invented crimes unearthed by willing prosecutors.
Ms. Rabinowitz is a member of The Wall Street Journal's editorial board.