Why Is AIPAC Being Singled Out?

Editorial: Hamodia - August 23, 2006

Last summer, Steven J. Rosen and Keith Weissman, two former high-ranking officials of the American Israel Public Affairs Committee (AIPAC), were indicted on charges of violating the federal Espionage Act.

The two pro-Israel lobbyists were charged with receiving certain classified information from Lawrence A. Franklin, a Defense Department analyst, and then passing it on to a journalist and an Israeli diplomat. This, the federal government contends, is prohibited under the section of the Espionage Act that makes it a crime for anyone "having unauthorized possession of.information relating to the national defense" to communicate such information "to any person not entitled to receive it."

Lawyers for Mr. Rosen and Mr., Weissman subsequently filed a formal motion with Judge T.S. Ellis of the federal district in Alexandria, Va., where the case is being heard, asking the judge to dismiss the indictment. They argued that the law under which their clients had been indicted was unconstitutional.

However, Judge Ellis, in a decision handed down earlier this month, rejected the motion, finding that the law was constitutional and that the government may pursue its espionage charge against the former AIPAC officials.

This is a dismaying development, one that raises serious question that cannot be swept under the carpet.

It is not our place to analyze the complex constitutional issues of free speech and due process addressed by Judge Ellis in his lengthy ruling; we leave that for the legal experts (and, no doubt, for the higher ranking judges who are sure to be called upon by Mr. Rosen's and Mr. Weissman's lawyers to review the ruling on appeal).

But one need not be a constitutional scholar to sense the distinctly foul odor that emanates from this unfortunate legal proceeding.

The section of the espionage Act under which the government prosecutors indicted Mr. Rosen and Mr. Weissman is nearly 100 years old. Yet, despite the many years the law has been on the books, the case against the AIPAC officials is apparently the very first time the statute has been used to charge a non-governmental employee with espionage.

The point bears emphasis. Prior prosecutions under the statute have always been focused on the government official who improperly transmitted classified information. Never before has the recipient of such a governmental "leak' been prosecuted.

This is not because there have never before been cases where outside parties have received classified information. On the contrary, experts say that what Mr. Rosen and Mr. Weissman are accused of doing is not at all uncommon among Washington lobbyists.

Nor are lobbyists the only ones who often come into possession of classified information. Journalists are constantly in touch with their governmental contacts, and are commonly given "off the record" information from anonymous sources. One might expect that the law books would be filled with cases involving prosecutions of reporters under the applicable section of the Espionage Act. In fact, though, there are no such cases.

We do not mean to suggest that there never should be such criminal prosecutions. As Judge Ellis wrote in his decision upholding the indictment of Mr. Rosen and Mr. Weissman, "however vital an informed public may be,disclosure of certain information may be restricted in service of the nation's security." There are times when journalists act irresponsibly in publishing classified information -- The New York Times' recent on the government's tracking of terrorist groups' domestic funding sources comes immediately to mind -and when criminal prosecution may in fact be warranted.

But the fact remains that such prosecutions, at least under the Espionage Act, have heretofore never taken place. The government's indictment of the two former AIPAC officials is absolutely unprecedented -- and extremely troubling.

The Bush Administration generally, and the president in particular, have been good friends of Israel. It is fair to ask, though, whether the decision to break with precedent and pursue an espionage case against Mr. Rosen and Mr. Weissman reflects an anti-Israel animus at some level of prosecutorial decision-making authority.

Or perhaps the question to be considered is whether the U.S. defense establishment employs a different standard when in comes to the disclosure of classified information to Israel and its supporters. In this respect, while there is obviously a huge difference between the Rosen-Weissman case and the case of Jonathan Pollard, there is a disturbing common thread between the two. Mr. Pollard is serving a life sentence for a crime that in other contexts has been punished far less severely. The AIPAC lobbyists are the first ever to be prosecuted under the Espionage Act. The tune sounds all too familiar.

These, we believe, are troubling questions. Is it out of place for us to hope that President Bush himself is asking them as well?