Lobbyists or Spies?

Government insiders who engage in unauthorized leaks of classified information are violating their oaths, breaking the law, damaging national security and deserving of punishment. Sometimes those outside government who receive secrets and pass them to others are also breaking the law and deserve punishment. The latter category includes enemy spies. But what about American lobbyists -- and journalists -- who receive secrets and pass them along?

In an important trial set to begin in January, the Justice Department has irresponsibly confused the distinction between spying and lobbying. Keith Weissman and Steven J. Rosen, two former employees of AIPAC, the pro-Israel lobbying organization, are charged with unlawfully receiving and transmitting classified national-defense information. The stakes are high. The Pentagon official, Lawrence Franklin, who illicitly furnished the two men with secrets, and then participated in an FBI sting operation against them, has pleaded guilty for his part in the affair and was sentenced by federal judge T.S. Ellis III to more than 12 years in federal prison.

This past Friday, the same judge decided a pivotal preliminary issue in the Weissman-Rosen case. The defense has subpoenaed 20 present and former administration officials to appear as witnesses for its side, including Elliott Abrams, Richard Armitage, Douglas Feith, Dennis Ross, Paul Wolfowitz, Stephen Hadley and Condoleezza Rice. The idea is to use their testimony to demonstrate that their clients had every reason to believe that what Mr. 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 to allied countries, in this case, to Israel.

You should read all the details about the case in question. It's kind of hard to make the case that there's no "there" there when the Pentagon official in the case (Larry Franklin) has already pleaded guilty to a number of charges and is serving 12 years in a Federal prison.

It's worth noting that Franklin's lawyers originally tried to have the evidence against him thrown out, on the grounds that the FBI did not have proper cause to conduct the surveillance operation against him that was used to gather the evidence to charge him. The FBI's response was pretty remarkable. It turns out they never had any proper cause to conduct a surveillance operation against him at all -- nor did they ever intend to investigage him in the first place. The FBI operation was aimed at the AIPAC people all along, and they only learned of Franklin's crimes during the course of their AIPAC investigation.

You might also want to talk to someone with a background in U.S. intelligence. You might be shocked at what they have to say about a group like AIPAC.

Article actually covers that aspect (Franklin):

The Pentagon official, Lawrence Franklin, who illicitly furnished the two men with secrets, and then participated in an FBI sting operation against them, has pleaded guilty for his part in the affair and was sentenced by federal judge T.S. Ellis III to more than 12 years in federal prison. When Lawrence Franklin passed on classified information to the two defendants, he lacked such authorization, which is why he is a felon. But given how routinely classified information is dispensed for legitimate purposes, how were Mr. Weissman and Mr. Rosen to know that Mr. Franklin was telling them things he was not allowed to tell them and involving them in his crime? The answer is: They could not know.

....

Yes, protecting classified information is crucial to our national defense. But the law is narrowly and properly tailored to protect innocent people from becoming ensnared by it.

That's not too far from Fitzgerald's witch hunt of Libby disclosing "classified" status of Valerie Plame or Carl Rove and others being "involved" because reporters called them to confirm information they already knew.

Ellis is the same judge who is trying this case :

In the AIPAC case, an equal or even higher barrier to successful prosecution exists. In order to convict, Judge Ellis has ruled, the prosecutors must prove the defendants had a long laundry list of "mental states," indicative of culpability. They not only had to be acting in bad faith, but had to know that the information they received was classified and closely held.
and from http://www.freerepublic.com/focus/f-news/1920199/posts
U.S. District Judge T.S. Ellis III said the lobbyists have a right to argue that "they believed the meetings charged in the indictment were simply further examples of the government's use of AIPAC as a diplomatic back channel."

>>The FBI operation was aimed at the AIPAC people all along, and they only learned of Franklin's crimes during the course of their AIPAC investigation.<<

That is exactly what I said : they were charged because of who they are, not what they did; they are being Nifonged and Fitzgeralded. I don't mind intelligence surveying a group like AIPAC or other lobbying groups, like CAIR at all; actually I wish they watched groups like CAIR better (but would they dare to bring charges against someone just because, or especially because they belong to such a group - another case of who vs what,) but there has to be a crime and intent of a crime on their part and in this case there wasn't.

>>You might also want to talk to someone with a background in U.S. intelligence. You might be shocked at what they have to say about a group like AIPAC.<<

No, I would not be shocked at what intelligence guys tell me about these groups - they all deal in information that sometimes is not available from New York Times or Washington Post, which doesn't mean it's really "classified" - that's exactly why this case and cases like this are doing so much damage to DoJ (if that's even possible anymore) and, more importantly, to our [selective] justice system. At least, Franklin got what he deserved, but this case is purely in Nifong/Fitzgerald category. DoJ would do better to go after NYT - the "journalists" (as opposed to "lobbyists") knew and deliberately disclosed top secret (not just "classified", whatever that means anymore) information. Maybe lobbyists should "register" themselves as "journalists" and avoid this type of prosecutions altogether.

Follow up, reference:
A Test for Mr. Mukasey
By Norman Pearlstine
November 12, 2007; Page A17

The lobbyists allegedly passed on the information they had received to a reporter for the Washington Post and an Israeli embassy employee.

...

The indictments don't accuse Messrs. Rosen or Weissman of spying and the case appears to revolve around telephone and in-person conversations instead of leaked documents, making it harder to know if the information they obtained was leaked illegally.

The AIPAC lobbyists are the victims of selective prosecution for behavior that has become commonplace. They did what journalists and lobbyists have been doing since the founding of the republic. That is why so many journalists worry about the case and why some constitutional lawyers believe the Espionage Act is so vague the Supreme Court would conclude it unconstitutional should it have the chance to rule.

The fear of Supreme Court review might explain why there have been so few prosecutions of government leakers for espionage in recent decades and why, before AIPAC, the government had never sought to make receipt of classified information and passing it on to others a crime under the Espionage Act.

Like it or not, the lobbyists were operating in a system in which leaks have become essential to the function of government in Washington. It is often impossible for a journalist or a lobbyist to know whether leaked information is classified. And, surprisingly, the leaking of classified information may be legal, so long as the information has first been declassified.

...

Mr. Pearlstine, the author of "Off the Record: The Press, the Government, and the War over Anonymous Sources" (Farrar, Straus and Giroux, 2007), is a former managing editor of The Wall Street Journal and a former editor-in-chief of Time Inc.

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