Is there a First Amendment right to engage in espionage? Dorothy Rabinowitz seems to think so. Describing the actions of Steve Rosen and Keith Weissman, two former top officials of AIPAC, the premier Israel lobbying group, who passed purloined intelligence to Israeli government officials, the Pulitzer Prize-winning journalist characterized them as “activities that go on every day in Washington, and that are clearly protected under the First Amendment.” If what Rabinowitz says is true—if passing classified information to foreign officials is routine in the nation’s capital—then we are all in big trouble.
On Aug. 4, 2005, Rosen, Weissman, and Pentagon analyst Larry Franklin were indicted by a federal grand jury and charged with violating provisions of the Espionage Act that forbid divulging national defense information to persons not authorized to receive it. The indictment traces the treasonous trio’s circuitous path as they met in the shadows—in empty restaurants, at Union Station in Washington, on street corners. Rosen and Weissman sought out and cultivated Franklin, milking him for information that they dutifully transmitted to their Israeli handlers. According to Rabinowitz, however, they were merely “doing what they had every reason to view as their jobs”—which is true, assuming they understood their jobs to be spying for Israel.
The trial is scheduled to begin June 7. As the day of reckoning approaches, the Israel lobby is ratcheting up the rhetoric. So, too, is the defense: in a duet of hysterical accusations and frenzied rationalizations, the accused spies’ defenders have described the proceedings as a frame-up, the result of an intra-bureaucratic struggle within the government, and a plot by anti-Semites in Bush’s Justice Department to carry out a Washington pogrom. None of these flights of imagination are any more convincing than the Dream Team’s defense of O.J. Simpson. Yet the noise level continues to rise, as if sheer volume, instead of logical arguments, could overwhelm the copious evidence of the defendants’ guilt.
The indictment lists numerous acts of espionage, dating back to 1999, in which Rosen and/or Weissman acted as conduits for classified information flowing from Washington to Tel Aviv. The feds had been watching for a long time: the indictment makes clear that Rosen and Weissman didn’t make a move without the FBI’s counterintelligence unit knowing about it. This surveillance is how they happened on Larry Franklin, the Pentagon’s top Iran analyst, who walked in on a luncheon meeting in Arlington, Virginia, attended by Rosen, Weissman, and Naor Gilon, chief of the political-affairs section at the Israeli Embassy. The feds were listening in as Franklin—referring to a document dated June 25 and marked “top secret”—announced he had secrets to tell.
Tell not sell: unlike the majority of post-Cold War spies, the AIPAC-Franklin espionage ring wasn’t centered around financial gain but ideology. Franklin is a dedicated neoconservative, a minor yet key player in the neocon network, who served in the military attache’s office in the U.S. Embassy in Tel Aviv in the late 1990s and was a Defense Intelligence Agency analyst with expertise in Iranian affairs working in Douglas Feith’s policy shop.
The counter-intelligence unit was hot on Franklin’s trail, and they watched his every move—his wholesale transfer of top-secret information on Iran, al-Qaeda, and other intelligence of interest to Israel to Rosen and Weissman, who funneled it to their contacts in the Israeli Embassy. The FBI gave Franklin enough rope to hang himself, and then moved in, showing up at his door and confronting him with his treachery. A search of his home and office turned up a veritable lending library of classified documents dating back years, all of which had doubtless been made available to the Israelis. Faced with the probability of a long prison stretch, Franklin agreed to wear a wire to his subsequent meetings with Rosen and Weissman. In the months that followed, the FBI built its case, recording conversations and following the AIPAC duo.
And they did a good job, apparently, because the government is making an unusual request: that some testimony and evidence be shielded from the public due to its highly sensitive nature. This wasn’t just a case of pilfering a few innocuous memoranda. It looks like team AIPAC made off with the family jewels and maybe even the deed to the house. Why else would the Justice Department risk having a conviction thrown out on appeal on account of such a rarely invoked legal mechanism?
The defense has protested proposed security procedures—magnetometers at the courtroom door, security sweeps of the courtroom itself, an officer of the court monitoring electronic surveillance while the trial is in session—on the grounds they would prejudice the jury against the defendants. They compare this to dragging Rosen and Weissman before the jury in prisoners’ uniforms and shackles. Yet these security measures point to the seriousness of the matter before the court, the depth to which the Rosen-Weissman-Franklin spy ring penetrated the government, and the ongoing breach they have opened in America’s national-security firewall.
While most of the more cautious elements in the Jewish community are staying well away from this case, the radicals, such as Rabbi Avi Weiss and his AMCHA-Coalition for Jewish Concerns, who have previously devoted their efforts to freeing Jonathan Pollard, have now turned their attention to Rosen and Weissman. Steven Lieberman and Anne Sterba, lawyers for the group, wrote in an amicus brief: “Trying these two men for disclosing critical ‘national defense information’ to foreign officials, without letting the public know what the alleged information was, will allow enemies of the Jewish people to exaggerate the significance of that evidence and will leave the press and the public to subsist only on rumors and speculation.”
The Weiss group likens the prosecution of Rosen and Weissman to the Dreyfus case—in effect positing the existence of a vast anti-Semitic conspiracy at the highest levels of the Justice Department. Not exactly a credible contention, offered, as it is, without evidence, but the defenders of Rosen and Weissman are getting more frantic as the trial date approaches. As a writer for the Israeli newspaper Ha’aretz put it, “Does this trial really carry any resemblance to the Dreyfus trial? It’s a different era, a different country, a different system, a different accusation. Making this comparison demands some imagination, much ambition, and maybe a speck of chutzpah too.”
A recently unsealed defense memorandum details a Feb. 16, 2005 colloquy between Rosen’s lawyer, Abbe Lowell, and Nathan Lewin, AIPAC’s legal counsel, in which the latter reveals that Paul McNulty—then the U.S. attorney for the eastern district of Virginia and chief prosecutor in the case—“would like to end it with minimal damage to AIPAC.” Lewin told Lowell, “He is fighting with the FBI to limit the investigation to Steve Rosen and Keith Weissman and to avoid expanding it.” This is hardly the behavior one would expect of contemporary anti-Dreyfusards in the Justice Department plotting to scapegoat AIPAC and the Jews.
Clearly the Rosen-Weissman defense team is involved in a bit of “greymail,” that is, forcing the government to disclose as much classified information as possible during the discovery phase of this case and hoping to derail the prosecution entirely as it weighs the effects of disclosure against the benefits of a possible conviction. As we go to press, Judge T.S. Ellis has ruled against the prosecution's proposal to shield sensitive testimony and evidence behind a veil of pseudonyms and euphemism, which could delay the begining of the trial.
Efforts to embarrass the administration go beyond accusing DOJ and extend to prominent figures such as Condoleezza Rice, who is accused by Abbe Lowell of leaking national defense information to AIPAC as Franklin did. Gen. Anthony Zinni is being targeted in a similar manner. Both have been subpoenaed, along with David Satterfield, deputy chief of the U.S. mission to Iraq, and William Burns, U.S. ambassador to Russia, to testify. If Rosen and Weissman are going down, the Israel lobby seems to be saying, then so are a lot of prominent people—some of whom, like Zinni, just happen to be their enemies.
This isn’t greymail, it’s blackmail. It was Zinni, after all, who said of the Israel lobby and the neoconservatives: “I think it’s the worst-kept secret in Washington. Everybody—everybody I talk to in Washington—has known and fully knows what their agenda was [during the run up to the Iraq War] and what they were trying to do.”
The intrigue thickened last October as word leaked that a proposed deal was dangled in front of Rep. Jane Harman: AIPAC would back her to become head of the House Intelligence Committee if she would urge the government to treat Rosen, Weissman—and AIPAC itself—with kid gloves. The Forward reported, “Several congressional sources confirmed that major donors to the Democratic Party have been lobbying Pelosi on behalf of Harman’s nomination to head the intelligence committee and that these attempts were not welcomed by the House Democratic leader.” Time named Haim Saban, the billionaire Hollywood producer and major AIPAC moneybags, as one of the supplicants. Pelosi didn’t fall for it, and Harman was rebuffed. Perhaps this was in the background when the speaker was booed as she addressed the subsequent AIPAC national conference, although Pelosi got back in the Israel lobby’s good graces after she stripped a provision from the military appropriations bill that would have required the president to go to Congress for permission to attack Iran.
The defense has fought to get the case against Rosen and Weissman thrown out on any number of grounds: the Espionage Act is unconstitutional, it doesn’t apply to their clients but only to government officials, and, last but not least, it’s a violation of the Israel lobby’s First Amendment “right” to betray classified information to its masters in Tel Aviv. Twisting and turning, threatening and spitting, delaying as best it can, the defense has tried to wriggle out of it every which way, to no avail. The trial is going forward, and the public spectacle of the biggest espionage scandal involving Israel since the prosecution of Pollard could deliver a body blow to the Israel lobby at a time when it has come in for public scrutiny and criticism as never before.
But that hasn’t prevented the lobby from brazenly defending the accused spies, in spite of the preponderance of evidence, and even hailing them as patriots. Writing in The Forward, Michael Berenbaum avers, “Instead of being grounds for prosecution, perhaps the influence Steven Rosen and Keith Weissman were trying to exert—making officials and the public aware of the danger from Iran—should be heralded.” And why should we hail espionage as laudable in this instance? Well, you see, because the AIPAC defendants were ahead of their time in citing the danger from Iran: “In Washington, as Rosen and Weissman are learning the hard way, the ‘crime’ is often not being wrong, but rather being right too early or at the wrong time, or being out of sync with the conventional wisdom, or pushing an inconvenient truth.”
In light of Judge Ellis’s recent ruling that in this trial the Espionage Act is going to be interpreted narrowly and that the burden is on the prosecution to show that the defendants knowingly harmed U.S. national security interests, the defense might be expected to make a pitch similar to Berenbaum’s—that, instead of prosecuting Rosen and Weissman, we ought to be pinning medals on their chests.
The AIPAC defendants weren’t spies, they were merely ahead of the curve, anticipating the day when a distinction is no longer being made between American and Israeli interests. That is the line we are hearing, as the curtain goes up on the trial of Rosen and Weissman. Whether the jury or the public falls for it remains to be seen.