Court case may strain free speech

All but unnoticed by most of the news media, a criminal case working its way to trial in a federal courtroom in Alexandria, Va., could create perilous new restrictions on both Americans’ political speech and the right of their free press to report national security issues.

The constitutional implications of these proceedings are alarming enough on their own. However, the general silence among commentators and editorial pages that usually are quick to react when speech is threatened raises another troubling question: Is this case being ignored because so many of those involved in it are members of the Republicans’ neoconservative faction, a group many in the press now blame for pushing the U.S. into the Iraq debacle?

The case involves Lawrence A. Franklin, a former Defense Department analyst, and two former lobbyists for the American Israel Public Affairs Committee (AIPAC), Steven J. Rosen and Keith Weissman. As the lobby’s longtime director of foreign policy issues, Rosen was one of Washington’s better known lobbyists, with strong personal connections among the Bush administration’s neoconservatives; Weissman was a senior Middle East analyst in his department. Both were fired from the organization after they, along with Franklin, were indicted for conspiring to violate the Espionage Act of 1917.

The government alleges that, three years ago, Franklin, an expert on Iran then working for Undersecretary of Defense Douglas J. Feith, orally passed classified information on Tehran’s nuclear program and other Middle Eastern issues related to terrorism to Rosen and Weissman over lunch in an Italian restaurant. Franklin already had been arrested by the FBI and had agreed to participate in a sting against the two lobby officials. He subsequently has pleaded guilty to three felony counts of illegally retaining and distributing classified information; three other counts have been dismissed. In January 2006, he was sentenced to nearly 13 years in prison and fined $10,000, the minimum under federal sentencing guidelines. Even that penalty was stayed, pending the resolution of Rosen and Weissman’s trial -- presumably to guarantee Franklin’s testimony against them.


As the New York Times reported after the sentencing: “The charges against Mr. Franklin and the two lobbyists are offenses under the Espionage Act, but none of the men have been accused of spying. . . . The case is unusual because of the charges against the lobbyists, who did not hold security clearances, were not government employees or representatives of a foreign government. They operated in a small circle of lobbyists who have commonly traded gossip and inside information with administration officials, congressional aides and journalists.”

Unusual doesn’t begin to cover it.

That’s why, as Gabriel Schoenfeld, Commentary’s senior editor, pointed out in a piece for the Wall Street Journal this week, the judge in the case, T.S. Ellis III, has given Rosen and Weissman’s lawyers the go-ahead to call 20 current and former administration officials --including Feith, former Deputy Secretary of Defense Paul Wolfowitz and Secretary of State Condoleezza Rice -- as defense witnesses.

“The idea,” according to Schoenfeld, “is to use their testimony to demonstrate that their clients had every reason to believe that what Franklin told them in conversation -- no classified documents ever changed hands in this case -- was part and parcel of the normal back-channel method by which the U.S. government sometimes conveys information to the media and/or allied countries, in this case Israel.”


Ellis already has ruled that the government must prove that Rosen and Weissman intended to injure the national interest and that they knew Franklin’s conversation was based on classified information he was not legally entitled to discuss with them.

In Ellis’ written opinion on the defense witnesses, he wrote that the defendants “claim that AIPAC played an important role in U.S. foreign policy development” and, if that’s true, “the government’s use of AIPAC for ‘back-channel’ purposes may serve to exculpate defendants by negating the criminal states of mind the government must prove to convict defendants of the charged offenses.”

In fact, the government won’t be able to prove that either Rosen -- a former Rand analyst who once held a top secret CIA clearance -- or Weissman had a criminal state of mind, because they didn’t commit a crime. As Schoenfeld correctly argues, “the Justice Department has irresponsibly confused the distinction between spying and lobbying.”

That’s where things get threatening.


AIPAC is a bit of an easy target these days, because the special relationship between the United States and Israel is under attack from the ideological fringes.

On the one hand, there are the paleo-conservatives, who are instinctive anti-Semites, and are using the current unrest in the Mideast to trot out all the hoary arguments that an alliance with Israel prevents Washington from having “a realistic” relationship with the Arabs.

On the other hand, there’s an extreme wing of the antiwar left that has made sympathy for the Palestinians an excuse for objectively anti-Semitic rhetoric, including an insistence that the Bush administration’s pro-war neoconservatives -- many of whom are Jewish -- weren’t just other Americans with a mistaken notion of the national interest, but conscious Israeli stooges.

It’s a vicious, as well as slanderous, argument, but it contributes to a climate in which the government can pursue this outrageous criminalization of Rosen and Weissman’s routine conduct.


Moreover, as the New York Times has reported, Franklin “was among Bush administration conservatives who had pushed for an aggressive policy towards Iran, including a more confrontational approach to restrain its nuclear program. . . . Franklin has said he developed a relationship with the two lobbyists in the belief that they had access to officials at the National Security Council and could communicate his views to senior officials there.” In other words, if classified information was transmitted, it was done in the hope that it would go to the president’s security advisors. Rosen reportedly believed that Franklin hoped Rosen would recommend Franklin for a job on the security council.

This is espionage?

Given the government’s mania for classification, using it as a way to prosecute lobbyists won’t stop with groups interested in foreign policy.

It’s only a matter of time until staff members of the AARP and the Humane Society are found to possess some sort of classified material and prosecuted for it -- and, in our modern system, lobbying is an indispensable expression of political speech. Without it, people are voiceless.


If Rosen and Weissman can be hauled into court and sent to prison for the conduct alleged in this indictment, then so can every reporter who writes a story based on a leak of classified information -- no matter how frivolous the classification or how compelling the people’s right to know it. Virtually every good reporter covering national security issues would be, at some point, a violator of the Espionage Act under this standard. There is a real crime here, and it’s the failure of the media to adequately cover this absurd and dangerous prosecution.