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AIPAC trial could expose ways information is gathered in D.C.

By Ron Kampeas

11/03/05 "
JTA" -- -- WASHINGTON — It’s a classified leak case that could rattle U.S. foreign policy and fundamentally alter how Washington does business. But while the world watches the implosion in the vice president’s office, this case is proceeding quietly across the Potomac.
Motions filed in recent weeks in the case against two former senior staffers of the American Israel Public Affairs Committee have gone virtually unnoticed in the mainstream media, but their implications could be as explosive as the perjury indictment last week against Lewis Libby, Vice President Cheney’s chief of staff and a principal architect of the Iraq war.

Defense motions suggest that the trial, now scheduled to start April 25, could expose the extent of covert U.S. surveillance of an ally, Israel, and how Israeli diplomats gather information about the United States.

It also could shed light on how journalists use intermediaries like AIPAC to gather information, on how U.S. officials selectively leak information to manipulate public perception of U.S. policy and on the inner workings of AIPAC, an organization famed for its media-shy profile.

At a hearing Wednesday on pre-trial motions in the case charging Steve Rosen, AIPAC’s former foreign policy chief, and Keith Weissman, its former Iran analyst with illegally transmitting classified information, U.S. District Court Judge T.S. Ellis determined that prosecutors may withhold evidence from the defense. Ellis said prosecutors persuaded him that it was in the national interest to do so.

Ellis said he would determine what material the defense can use and what material it cannot access. Because that process is likely to be long and involved, Ellis pushed back the trial date from Jan. 2 to April 25.

Rosen’s lawyer said that despite the ruling, Ellis showed sensitivity to the defense’s concerns.

“We’re pleased that the court understands the complexities involved in providing our clients with the right to a fair trial in the midst of all these classified procedures,” Abbe Lowell said.

Lawrence Franklin, a Pentagon analyst, pleaded guilty last month to leaking classified information relating to Iran.

Two defense motions filed Oct. 21 seek to subpoena as witnesses Israeli and U.S. diplomats, raising the possibility that the case will expose how the countries share information and how U.S. diplomats try to manipulate public perception through strategic leaks.

The diplomats are not named in the documents, but JTA has established that one of the three Israelis sought in the case is Naor Gilon, who was chief political officer at the Israeli Embassy in Washington until this summer. Two of the four U.S. officials sought are David Satterfield, currently the deputy ambassador in Iraq and formerly an assistant deputy secretary of state, and Kenneth Pollack, a member of President Clinton’s national security council, JTA has established.

David Siegel, the Israeli Embassy spokesman, acknowledged receipt of the defense request for Israeli diplomats’ cooperation. He would not comment further, but Israel already has offered limited cooperation to the prosecution.

Lowell previously described the Israelis as uncooperative with the defense.

Laurie Levenson, a professor at Loyola Law School in Los Angeles, likened the case to that of Zacarias Moussaoui, allegedly involved in the Sept. 11, 2001 attacks. A judge in the same Alexandria, Va. courthouse where Rosen and Weissman will be tried expressed sympathy for Moussaoui’s claim that the government’s refusal to allow him to see testimony of other Al-Qaida suspects held at Guantanamo Bay, Cuba, unfairly prejudiced his case.

“The more the defendants show it’s not their fault that the Israeli witnesses are not available, the likelier it is they will get relief from the court,” Levenson said.

The State Department refused to make Satterfield available for comment. A spokesman said that the decision about whether or not to testify was Satterfield’s alone, and the department would not compel him to do so. Pollack did not return calls.

One motion also seeks to subpoena the FBI agents in the case. Sources close to the defense have suggested that the strategy is to show how little the FBI came up with during a broad, six-year investigation.

The strategy also is reflected in the separate exchange of motions on how much of the transcripts and tapes of tapped phone conversations the prosecution must share with the defense that preceded Ellis’ ruling on Wednesday. The prosecution is offering only nine hours of what could amount to hundreds of hours of recordings. Ellis may add to that in coming months.

Should Ellis eventually allow the publication of a substantial portion of the transcripts, it could expose the breadth of covert attention that U.S. agencies pay to Israel and to AIPAC, a respected domestic lobbying organization. The prosecution hopes to stymie that exposure with its own motion that seeks not only to suppress most of the tapped conversations, but even their quantity. Ellis did not indicate whether he would suppress information about the quantity.

A close analysis of the indictment shows that FBI tracking of Rosen and Weissman did not begin in earnest until 2002. Yet there is much in the indictment preceding that date, suggesting that the FBI might have had other targets, including Israeli diplomats, journalists and even U.S. officials.

Another government practice with the potential for embarrassment, as the Libby case has shown, is the tendency for administration officials to selectively leak information to manipulate public opinion.

Satterfield and Pollack, neither of whom has been charged in the case, allegedly leaked information related to Iran and al-Qaida. If required to testify, they likely would be asked why it was important to get this information to the pro-Israel lobby.

In previous hearings, Ellis has expressed sympathy for defense arguments that much of the evidence the prosecution hopes to withhold would meet a relevance standard that would require sharing it with the defense. But it’s not just the U.S. government that stands to be embarrassed should Ellis lean toward defense arguments, and release more material.

“Any and all statements made by the defendants to the following people are relevant,” says a defense motion filed Oct. 21. “Their employees, supervisors or co-workers at AIPAC; their alleged co-conspirators; anyone referred to in the superseding indictment; any government official of Foreign Nation A,” a reference to Israel; “any employee or official of the United States; and/or any journalists.”

That list threatens to blow open a number of Washington practices. Diplomats of all countries in Washington avidly mine government officials and lobbyists for unclassified tidbits.

Journalists, increasingly denied access to the Bush administration, have taken in recent years to soliciting information from groups and lobbies close to the White House. AIPAC is known among journalists as a premier conduit for hard-to-get information, and two such incidents are cited in the indictment. JTA has learned that the incidents involve The Washington Post and The Nation.

Additionally, defense sources say they have reason to believe that the defendants’ relationship with a New York Times reporter might have been monitored.

Finally, the defense will argue that the practices alleged were routine for AIPAC.

AIPAC has insisted that Rosen and Weissman overstepped bounds. The group fired the two in April because of what its spokesman said was information arising out of the FBI investigation. It is obligated to pay their legal fees under AIPAC’s bylaws, however.

AIPAC also says that none of its current staff has been involved in any wrongdoing, and the lead prosecutor in the case, U.S. Attorney Paul McNulty, has said as much as well.

Still, the prospect of AIPAC officials taking the witness stand to prove or disprove whether Rosen and Weissman hewed to routine cannot be a happy one for a group known in Washington for closely guarding its lobbying practices.

Defense sources have suggested that they will show that Rosen and Weissman relayed information that the government says was classified to Howard Kohr, AIPAC’s executive director, as soon as they allegedly got it from Franklin in July 2004.

That information supposedly will establish that such practice was part of AIPAC’s routine, though no one is suggesting that Kohr knew the information was classified or that he shared it with anyone else.

The argument that Rosen and Weissman’s practices were routine got unexpected support last week from none other than Patrick Fitzgerald. He’s the U.S. attorney who won the perjury indictment against Libby for allegedly leaking the name of a CIA operative who is married to Joseph Wilson, a prominent critic of the Iraq war.

In an extended news conference, Fitzgerald sought to explain why he was prosecuting a cover-up — the alleged perjury — and not the underlying alleged crime, the leaking of Valerie Wilson’s name.

“That would violate the statute known as Section 793, which is the Espionage Act,” Fitzgerald said. “That is a difficult statute to interpret. It’s a statute you ought to carefully apply. I think there are people out there who would argue that you would never use that to prosecute the transmission of classified information, because they think that would convert that statute into what is in England the Official Secrets Act.”

Indeed, Section 793 rarely is used to prosecute the transmission of classified information. Experts can’t think of a single case since the mid 1980s — until this year, when it was used to charge Rosen and Weissman.

JTA.

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