WASHINGTON — It was just six weeks ago that the U.S. Justice Department asked a federal court to dismiss the Espionage Act charges that had been pending against former AIPAC officials Steven Rosen and Keith Weissman for four years.
The case was as hard fought as litigation could be. There were hundreds of motions and pleadings, dozens of days of court hearings, battles over everything from the constitutionality of the charges to whether the defense would be allowed to call former Secretary of State Condoleezza Rice to testify.
There were 13 published court opinions and even an unusual mid-case appeal by the government to the Court of Appeals.
Then, with 30 days to go before trial, the government abruptly left the battlefield and, despite all the bravado by which it brought the charges, moved to dismiss the charges without a trial.
The court agreed.
So what might have been the trial of the era — with allegations of classified information and former high-level Bush administration officials being forced to testify as defense witnesses and the coming to light of the way the back-channel diplomacy of foreign affairs in Washington is really conducted — ended with more of a whimper than a bang.
The end of the case was appropriate; it should never have been filed in the first place. The innocent former AIPAC employees Rosen and Weissman should not have had to suffer one more minute, let alone weeks of trial, under an unjust indictment. The problem with its anticlimactic ending, however, is that so many important questions raised by the case might go unanswered.
The potential impact this prosecution could have had on the First Amendment and foreign policy discussions, and the government’s work with groups like AIPAC, is too important to allow this case to be so easily forgotten.
There is a legal pad full of questions the case raises for the government to answer:
• Why in the mid to late 1990s was the government’s counterintelligence apparatus selectively aimed at the pro-Israel foreign policy lobby in general and AIPAC in particular, when the same case could have been made against literally hundreds of other lobbyists and journalists for discussing foreign policy issues that might implicate classified information?
• How could the government create a trap for Rosen and Weissman by dangling the warning that “lives were in danger” without expecting these moral men to act?
• When it was pointed out that the case did not actually involve real espionage, that there were no classified documents ever involved, that the work by Rosen and Weissman was part of their jobs and not something outside the norm, and that there was no spying, bribery, theft or secret meetings, how did the government allow the case to continue? And what finally brought the government to its senses after spending literally millions of dollars investigating and prosecuting these two men for nearly a decade?
A few weeks ago some 125 rabbis from across the country wrote to Attorney General Eric Holder raising these and other questions. Given the significance of the case to the Jewish community, it is appropriate that the Jewish community take the lead in asking these questions and not let the case just fade away. However, the Jewish community should be asking questions not only of the government but also to itself.
Here is just a start:
As the government was apt to do over the past eight or nine years, it put pressure on AIPAC, as if it were some corporation like Enron or Worldcom, to isolate Rosen and Weissman, fire them and emasculate them from fighting back by cutting off payment of their legal fees. Why did AIPAC take these steps? Just because the government attempted to paint a damning picture of the AIPAC employees, didn’t Rosen and Weissman deserve the true benefit of the doubt and presumption of innocence that they earned from more than 40 years of combined service?
Had the law firms representing the two men not agreed to continue without full compensation (AIPAC ultimately agreed to less than half of what is owed), the outcome of this case could have been different, but the blame would not have gone to the defendants for their conduct but to the community that abandoned them.
AIPAC is not the only organization that needs to explain. Other Jewish groups acted no better.
In January 2002, Israel intercepted the cargo ship Karine A loaded with weapons intended to be used by the Palestinians against Israel. Some of the allegedly illegal disclosures made by Rosen and Weissman related to the Karine A episode. It was important to Rosen’s and Weissman’s defense to show that the Karine A information was already public and being discussed openly by administration officials. One such official was then Special Envoy to the Middle East General Anthony Zinni.
The general had discussed his private meeting with then-PLO Chairman Yasser Arafat concerning the Karine A at a dinner attended by Rosen, who was still with AIPAC at the time, and representatives of three other major Jewish organizations. The defense sought help from the representatives of the organizations attending the dinner to show that the information at issue already was public and being openly discussed by U.S. officials. One of the attendees had his organization decline the invitation to meet and be interviewed; one agreed to meet but said he did not remember any details of the meeting (despite its critical importance at the time); and one agreed to meet but was reluctant to testify about what he had heard.
How could all these community groups cause their officials to run from simply telling the truth of what happened when doing so could have made the difference between jail or freedom for one of their colleagues?
Finally, AIPAC and the American Jewish community as a whole were not the only ones to ignore the Israeli principle of never leaving a soldier on the battlefield — Israel forgot its own
A good part of the government’s case revolved around charges that Rosen and Weissman had discussions with representatives of the Israeli government about what the duo learned from U.S. officials. Being able to prove that Israeli officials already had learned of the information directly from U.S. officials or had been the original source of the information that the U.S. officials had told Rosen and Weissman was critical to the defense. So one would assume that Israel would make the officials with whom Rosen and Weissman spoke available for interviews and possible testimony.
That assumption would be wrong.
Request after request to the Israeli Embassy in Washington and its attorneys, and to officials in Israel were denied. They would not agree to an interview, even in Israel; they would not agree to an exchange of information, even through attorneys; they would not agree to help in any way. This was not the case of Jonathan Pollard or anything similar, yet the Israeli government, like American Jewish groups, reacted as if it were. How was it fair for the Israeli government to benefit from the work of these AIPAC employees when it was convenient and then abandon them when there was a little controversy? Was this a result of U.S.
Now U.S. v. Rosen and Weissman is over. The government has admitted defeat; the two men and their families are left to try to pick up the pieces after a four-year struggle. A number of things that would have been revealed at trial will now stay under wraps, perhaps forever.
But some things do not have to be forgotten, and for that to happen, there are questions that must be answered.
(Abbe D. Lowell represented Steve Rosen, who has filed a defamation lawsuit against AIPAC. Baruch Weiss and John Nassikas served as defense attorneys for Keith Weissman.)
EDITOR’S NOTE: At the request of JTA, a spokesman for AIPAC, Patrick Dorton, offered the following response to this article:
The op-ed by attorneys Lowell, Weiss, and Nassikas represents only one version of the case based on a very particular point of view. But until the threat of litigation currently posed by Mr. Rosen’s ongoing lawsuit against AIPAC has been resolved, AIPAC is necessarily constrained in its public statements.
Where there is no question to be asked or answered is in the AIPAC payment of Mr. Rosen and Mr. Weissman’s legal fees. AIPAC provided millions of dollars to provide for a full legal defense through appeal for these two individuals — a sum that AIPAC prudently negotiated with its top-notch legal counsel (the authors of the op-ed) and a sum that its legal counsel mutually agreed to accept to provide Mr. Rosen and Mr. Weissman with the full legal defense they received.