Jerusalem Post | Breaking News from Israel, the Middle East and the Jewish World "Washington: Lobbying for freedom of speech
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NATHAN GUTTMAN, THE JERUSALEM POST Feb. 16, 2006
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A legal document posted on the Web site of the Federation of American Scientists this week became an instant best-seller, with almost 4,000 downloads in a single day. This is remarkable, considering the fact that the document is a lengthy legal opinion under the not-so-appealing headline: "Memorandum of Law in support of Motion to Dismiss the Superseding indictments."
Yet its 63 pages tell an interesting story - a new take on what has come to be known as the "AIPAC case."
The memorandum marks a new phase in the defense efforts of former AIPAC staffers Steve Rosen and Keith Weissman, charged with receiving classified information from former Pentagon analyst Larry Franklin and passing it on to diplomats in the Israeli Embassy and to members of the press. Franklin was sentenced last month, as part of a plea bargain, to 12 years in prison - a sentence that is expected to be reduced significantly after he testifies against Rosen and Weissman, whose trial is scheduled for April 25 in Virginia.
This new phase is one in which the focus of the case is shifting from the question of espionage (or illegal handling of documents) to the much more fundamental issue of freedom of speech.
The person responsible for the memorandum and for turning the Rosen-Weissman criminal case into a First Amendment issue is Viet Dinh, a former senior official in the Justice Department and a well-known law professor. Why this is so significant is that, in his former capacity in the Justice Department, Dinh was one of the chief architects of the USA Patriot Act, which gave government agencies much more freedom to conduct surveillance for the purpose of gathering and sharing information about citizens for the cause of fighting terror. In other words, no one can accuse him of being soft on issues of national security or of preferring civil rights to fighting crime or terror.
These credentials make Dinh's memorandum - a request to dismiss all charges against Rosen and Weissman before the trial begins - even more valuable for the defense.
The memorandum claims that there is no base to charge Rosen and Weissman under the 90-year-old section 793 of the Espionage Act, which makes it a crime not only to disclose classified information but also to receive it. According to Dinh, invoking the Espionage Act in the Rosen-Weissman case is simply going too far.
Indeed, for the first time since the case broke in the summer of 2004, the American media has begun to deal with this very issue: If it was illegal for Rosen and Weissman to have received classified information, who will be next in line for prosecution?
In a city like Washington, which thrives on information-trading - and in which those who know more have more power - the AIPAC case is suddenly seen as a real threat.
"This is what members of the media, members of the Washington policy community, lobbyists and members of congressional staffs do perhaps hundreds of times a day," the memorandum states. "Never has a lobbyist, reporter, or any other non-government employee been charged for receiving oral information the government alleges to be national defense material as part of that person's normal First Amendment protected activities."
THE DEFENSE hopes that turning the case into a freedom-of-speech issue will not only raise public interest in the matter, but also convince the jury - in the event that the dismissal motion is rejected - that what Rosen and Weissman did is simply common practice in the Washington information business. Furthermore, if anyone - namely the court - tries to tamper with this practice, it would deal a severe blow to the cornerstone of the Constitution by silencing the media, whistle-blowers and political activists.
Indeed, redefining the meaning of "common practice" in the American capital may be precisely what the AIPAC case is really about.
If so, it is not all that different from another recent case, in which a federal investigation into the leak of the identity of CIA agent Valerie Plame led to the imprisonment of New York Times reporter Judith Miller and to a grand jury investigation of other journalists.
The message in both cases is similar: Leaking is no longer acceptable to this administration and anyone who is involved in it, no matter on which end of the leak, will be dealt with harshly.
Both cases are now on their way to court - Rosen and Weissman in the near future, and the Plame case at a later date, as part of the Lewis "Scooter" Libby trial. At the end of the day, what emerges from these two trials can define the way business is done in Washington for years to come.
If receiving classified information turns out to be a punishable crime, then the whole practice of journalism and political advocacy will have to undergo major adjustments. One opinion writer has already suggested that if Rosen and Weissman are found guilty, not only reporters, but even readers, could be accused under the same Espionage Act.
The prosecution in the AIPAC case would rather steer clear of the First Amendment issue. It is building its case on a simple reading of the law, claiming, in essence, that the accused knew they were receiving classified information which they were not supposed to receive.
Judge T.S. Ellis, who will hear the case, has already given an indication of his views on the matter, saying he did not see any difference between a government employee, such as Franklin, and "academics, lawyers, journalists, professors, whatever" where dealing with classified information is concerned.
But the Virginia jury will really be deciding on a greater principle. The prosecution would like the case to be seen as an isolated case of two lobbyists who simply broke the rules and should pay the price for their actions. The defense will try to claim that it is actually freedom of speech in the United States that is on the stand, not two mere individuals."
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