Allegations that President Bush authorized the leaking of controversial data on Iraqi weapons could bolster the defense of the two former staffers of the pro-Israel lobby charged with receiving and disclosing classified national defense information, legal experts said.
In court filings last week, special prosecutor Patrick Fitzgerald asserted that I. Lewis Libby, Vice President Dick Cheney’s former chief of staff, had testified that he leaked intelligence information regarding Saddam Hussein’s pursuit of weapons of mass destruction to a New York Times reporter in July 2003, after receiving permission from his superiors. According to Fitzgerald’s filings, Libby said that he leaked the information on orders from Cheney, who stated that he himself had received authorization from Bush.
The revelations come as two former staffers at the lobbying powerhouse American Israel Public Affairs Committee await trial for allegedly receiving classified data from a Pentagon official and relaying it to an Israeli diplomat and to reporters.
Late last month, the federal district judge in the case, T.S. Ellis III, raised constitutional questions about the prosecution of the two former Aipac staffers, Steve Rosen and Keith Weissman. Now, some observers argue, the two men are likely to benefit from developments in the Libby case that highlight the frequent use of leaks and classified information in Washington among politicians, lobbyists and reporters.
“The Libby developments will serve to educate the public and perhaps the jury about the realities of leaking in Washington, which is a daily occurrence that is often instigated at the highest level of government,” said Steven Aftergood, director of the Federation of American Scientists’ Project on Government Secrecy. “So the future jury members are likely to recall in the back of their minds that the president also selectively disclosed previously classified information to advance his agenda. It puts the actions of the defendants in a different light and helps them by placing their offense in context.”
Bush said Monday that he had authorized the leak so people would know the “truth.”
A grand jury indicted Libby in October 2005 on counts of obstruction of justice, perjury and making false statements in the probe examining whether the Bush administration deliberately disclosed the covert status of CIA officer Valerie Plame in retaliation for the criticism expressed by her husband, former ambassador Joseph Wilson. Wilson challenged the reliability of the claim, voiced by Bush in the 2003 State of the Union address, that Saddam was attempting to obtain uranium from Niger.
Three months before Libby’s indictment, prosecutors charged Rosen and Weissman. Their jury trial, originally slated to begin April 25, has been rescheduled for May 23.
“The administration’s admitted policy of selective leaking to embarrass its enemies and conceal the truth won’t help the government case” in Rosen and Weissman’s trial, said Douglas Bloomfield, a former director of legislative affairs at Aipac. “What Rosen and Weissman were doing is no different than what reporters, lobbyists, experts, Congress and half of the government is doing, which is to find out what the administration is up to. This can’t be a crime in a free society.”
Rosen and Weissman filed a motion in January to dismiss the charges against them, arguing that the 1917 Espionage Act’s prohibition on receiving and disclosing “national defense information” — even if it is unclassified — is too broad.
Earlier this year, Ellis was the judge at the sentencing hearing of the former Pentagon official Lawrence Franklin, who pleaded guilty to passing the information on to Rosen and Weissman. Ellis seemed to side with the prosecution when he claimed that people who have unauthorized possession, or who come into unauthorized possession, of classified data must abide by the law, be it the media, lawyers or academics. But during a pretrial hearing late last month, Ellis said the Espionage Act might indeed be unconstitutionally broad and vague, especially given its potential impact on First Amendment rights. Prosecutors filed a comprehensive brief March 31 supporting their case.
Rosen’s lawyer, Abbe Lowell, did not respond to requests for comments.
The indictment against Rosen and Weissman alleges that they conspired to obtain classified government reports on several topics, including the Al Qaeda terror network, the 1996 bombing of the Khobar Towers dormitory in Saudi Arabia, in which 19 American soldiers were killed, and American policy on Iran. The two men are accused of sharing the information with reporters and with a foreign diplomat widely reported to be Naor Gilon, an official at the Israeli Embassy.
Franklin pleaded guilty last October to providing them with classified defense information and was sentenced to more than 12 years in prison. The former Pentagon official has contended that he was trying to prompt the White House to adopt a more hawkish position on Iran and that conveying his concerns through Aipac might help advance his policy goals. He has cooperated with law enforcement officials in their efforts to convict Rosen and Weissman, most prominently by holding meetings with them that were monitored by the FBI.
The case against Rosen and Weissman is drawing the attention of First Amendment advocates because it appears to be the first one in which the government has sought to criminalize the unauthorized receipt and dissemination of classified information by nongovernmental individuals who do not hold security clearances. Moreover, the case only revolves around the transmission of such information orally and, as such, does not rely on the exchange of tangible documents that clearly could be identified as classified by the recipients.
Several liberal-leaning advocacy groups have expressed concerns. The Reporters Committee for the Freedom of Press requested permission to file an amicus brief last October on the grounds that it could help the court consider “the broad implications of the government’s use of the statute under which the defendants are charged, especially the extent to which that use would infringe on the news media.” Ellis rejected the request, arguing that the defense clearly had laid out the implications of the case. He also denied a similar motion to file an amicus brief from the Institute for Research: Middle Eastern Policy, a staunch critic of Israel.
The defense memorandum calling for dismissal of the charges was partially written by Viet Dinh, former head of the Justice Department’s Office of Legal Policy, according to The Washington Post. Dinh, who teaches at Georgetown University, declined to comment because the case is sealed.
Prosecutors have argued that this is not a First Amendment case involving protected speech, but rather a conspiracy to collect and distribute information, including to Israeli officials.
Several observers noted that the Libby and Aipac probes are among several recent developments that have had a chilling effect on reporters and lobbyists, as well as on intelligence and law enforcement officials.
The CIA is conducting an internal investigation into potential leaks to The Washington Post and to The New York Times. The Post revealed the existence of secret CIA detention facilities around the world; the Times uncovered massive domestic eavesdropping by the government without a warrant. The Bush administration also has ordered a Justice Department probe into the leaks.
The recent developments were “adding to a general sense of cynicism about the importance of safeguarding classified information,” said Paul Pillar, who was in charge of the CIA’s Near East and South Asia desk from 2000 to 2005 and is now a visiting professor at Georgetown University.