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Edgar and Schmidt noted that the provision would seem to be criminalizing memory. More than three decades later, the judge trying the AIPAC case, T.S. Ellis III, asked the same question.
“What are they supposed to do?” he asked prosecutors, referring to Weissman and Rosen. “Have a lobotomy?”
The AIPAC case stemmed from a conversation Weissman had in 2004 with a midlevel Pentagon analyst, Larry Franklin, in a suburban shopping mall. Franklin informed Weissman that Iran was set to target Israeli and American targets in northern Iraq. The information was false; the FBI was using Franklin in a sting operation to net the AIPAC staffers.
Weissman relayed the information to Rosen, and together they relayed it to journalists, their colleagues at AIPAC and Israeli diplomats. They also attempted to convey it to the Bush White House.
Throughout pretrial hearings in the case, prosecutors repeatedly assured the court that they did not anticipate its use against journalists; Weissman and Rosen, they argued, were in a separate category as lobbyists. Defense lawyers noted that the First Amendment extended its protections to lobbyists as well.
Viet Dinh, a deputy attorney general under George W. Bush, wrote in an amicus brief in the AIPAC case — filed in 2006, after he had left the Department of Justice — that 793(e) posed constitutional challenges. Allowing its use “would only serve to chill the use of truthful information on matters of extreme public concern to advance the public’s interest in the foreign policy process,” Dinh wrote.
Mindful of such constitutional hazards, Ellis set the bar high for conviction: The government would have to persuade a jury that Rosen and Weissman not only “retained” unauthorized information, but that they knew that doing so would harm the United States.
On May 1, 2009, the prosecution dismissed the charges, saying it was in “the public interest.”