The judge has set a high bar for conviction in the AIPAC secrets case, telling prosecutors that they must show the two lobbyists charged under espionage laws knew that the U.S. would be hurt by disclosure of the material that they are accused of passing to reporters and Israeli officials.
The defendants, Steven Rosen and Keith Weissman, two lobbyists for the American-Israel Public Affairs Committee, are charged with conspiring with a Department of Defense intelligence analyst to leak U.S. secrets in an apparent effort to influence U.S. policy toward Iran.
In a transcript of a recent pretrial hearing, made available Tuesday, the judge in the case makes it clear that prosecutors must prove intention, or what lawyers call “mens rea” — Latin for “a guilty mind” — for every element of the conspiracy.
“The Court imposed the requirement that the government prove that the defendant knew the information … would harm the United States,” Judge Thomas Ellis told the Nov. 16 hearing.
That matters, explains government transparency advocate Steven Aftergood of the Federation of American Scientists, because it “distinguishes the activities with which they are charged from the routine activities of reporters and advocates who may made trade in classified information,” but don’t do so with the intention of harming U.S. security.
In a statement announcing the indictment, prosecutors charged that since at least April 1999, Mr. Rosen and Mr. Weissman had “use their contacts within the U.S. government … to gather sensitive U.S. government information, including classified information … for subsequent unlawful communication, delivery, and transmission to persons not entitled to receive it.”
The case has raised the hackles of civil liberties advocates who charge that overzealous prosecutors are abusing an overbroad statute designed to punish spies to criminalize the everyday behavior of reporters, lobbyists and researchers, all of whom occasionally trade in secrets — the stock in trade of Washington’s backroom policy process.
Jonathan Turley, professor of law at George Washington University, said the prosecution had “radically expanded the practical scope of national security law.” He said it had always been understood that government employees who leaked were in criminal jeopardy, but not the reporters — or in this case, lobbyists — to whom they were leaking. He said the case was an effort to “criminalize the act of simply receiving classified information.”
Judge Ellis fueled those fears when he told a hearing earlier this year that the law on its face applies to everyone: “academics, lawyers, journalists, professors, whatever.”
The Department of Justice routinely declines comment on ongoing cases, but prosecutors have said in court filings that they “recognize that a prosecution under the espionage laws of an actual member of the press … would raise legitimate and serious issues and would not be undertaken lightly.”
“The fact that there has never been such a prosecution speaks for itself,” they said.
But former counterintelligence officials who have followed the case make a distinction between reporters — who seek information in order to publish it to illuminate public debate — and the defendants — who are accused of using that information in a covert effort to influence U.S. foreign policy by passing it on to foreign officials.
“This was a counterespionage investigation,” said one retired veteran earlier this year, pointing out that it had been conducted by the counterintelligence unit at the FBI’s Washington Field Office. “They were looking for spies. Those guys don’t do leaks.”
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