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Two members of the American Israel Public Affairs Committee will go on trial for something that is a regular occurrence in Washington.

Some have argued that Szady was motivated by anti-Semitism. And indeed, the charge that he was motivated by animus toward Jews extends back for years to the case of a young CIA employee, Adam Ciralsky, who specifically made that charge. To my knowledge, Ciralsky has been unsuccessful in court .

Maariv International reported:

Former CIA Director George Tenet has admitted, in a letter he wrote to the ADL, that the CIA counter-intelligence unit headed by Szady operated in an “insensitive, unprofessional and inappropriate manner” regarding the Adam Ciralsky case.

Subsequently Szady transferred to the FBI, where he currently holds a senior position in the Bureau’s CI (Counter-Intelligence) department, which is responsible for the probe involving AIPAC, and is believed to be behind the damaging leaks.

Jewish leaders say this is not the first time David Szady has hit their radar screens. “This guy is bad news”, said one of them, on condition of anonymity. “He has a record of targeting and harassing Jewish employees. This includes using inappropriate and unprofessional language that could be construed as bigoted, casting doubts and aspersions on their loyalty to the US, and laying whatever bureaucratic mines he could in their paths.”

The FBI has denied any allegations of anti-Semitism on the part of Szady. “David Szady holds no anti-Semitic views, and has never handled a case based on any individual’s ethnicity,” said a FBI spokesperson questioned previously on this affair.

Other Jewish officials and officers of Jewish organizations are willing to bear this out. “I do not believe he is anti-Semitic,” said one senior Jewish official. “I have spoken to Jews who know him personally, and have been to his house, and they have assured me he is not anti-Semitic. They have said however that he may be somewhat overzealous, especially in the hunt for Agent X, who some FBI officials still believe worked with convicted spy Jonathan Pollard, despite the fact that no evidence supporting allegations of his existence has ever come to light over the past 18 years since Pollard was apprehended.”

I cannot say whether Szady pushed the case because he is anti-Semitic, or because he is incompetent, or because the evidence was so compelling to him that he honestly believed it needed to be brought. I can say — and hope to demonstrate — that the case is so bizarre and so unwinnable that someone at the Department of Justice should take charge of this and dismiss it before the government loses it.

2. What is the case about? Basic problems of proof. Knowledge of the defendants.

Two men working for AIPAC met with a government employee (Franklin) who gave them some information orally (which the government claims is properly classified), and they then disseminated this information. This back-channel process of getting information out is one which takes place hundreds of times a week between government officials, news reporters, and lobbyists. Normally, the transfer of information has been authorized by someone above the person conveying it. In this case it was not, although it appears uncontested that the defendants had no way of knowing this was so. In this case, there is a serious question of whether the information was even properly classified. But Rosen or Weissman could not even have known that the information was classified at all because they never received a single document from Franklin.

Moreover, the antiquated Espionage Act under which the men are being prosecuted requires criminal intent on their part, and that seems to be an impossibility. There is no indication that any of the three men wished to, or did in fact harm the national interest in the transmission of this information.

Gabriel Schoenfeld, writing in the Wall Street Journal, sagely observed:

[G]iven how routinely classified information is dispensed for legitimate purposes, how were Mr. Weissman and Mr. Rosen to know that Mr. Franklin was telling them things he was not allowed to tell them and involving them in his crime? The answer is: They could not know.

Under the circumstances, this is a case that should never have been brought. No fair-minded jury could conclude that Mr. Weissman and Mr. Rosen acted with criminal intent. Jurors will see only two lobbyists going about their jobs, interacting with government officials in an ordinary fashion as other lobbyists do all the time. Yes, protecting classified information is crucial to our national defense. But the law is narrowly and properly tailored to protect innocent people from becoming ensnared by it.

Through the examination under oath of the various government officials they have subpoenaed (and the judge has ruled they may call), the defendants will surely be able to establish that the transfer of information is a regular occurrence in Washington with which every lobbyist and high government official is fully aware. Further, they should be able to demonstrate that given the regularity of this practice, there is no reason for the recipients in such situations to assume the disclosure involves classified information or that it is unauthorized.

In addition, other rulings by the court make the case a loser — and this would have been apparent early on to any experienced litigator who reviewed the case before allowing it to even be filed.

3. Other problems: Improperly classified material and proof of culpable mental states.

In February, the court ruled that a classification expert whom the defense wished to call would be allowed to testify. On a flimsy pretext, the prosecution tried to prevent the expert from testifying. It appears that he will testify that the information conveyed by Franklin to the defendants was not properly classified.

A federal court this week ruled that J. William Leonard, the former director of the Information Security Oversight Office, may testify for the defense in the long-running prosecution of two former officials of the American Israel Public Affairs Committee (AIPAC) who are charged with illicitly receiving and transmitting classified information that prosecutors say is protected from disclosure.

Prosecutors had sought to prevent Mr. Leonard, a preeminent expert on classification policy, from testifying for the defendants, on grounds that he had briefly discussed the case with prosecutors while he was still in government.  They even suggested that he could be liable to a year in jail himself if he did testify.  To protect himself against such pressures, Mr. Leonard (represented by attorney Mark S. Zaid) moved to challenge the subpoena in the expectation that the court would order him to testify, thereby shielding him from any potential vulnerability.  (“To Evade Penalty, Key AIPAC Witness Seeks to Quash Subpoena,” Secrecy News, September 2, 2008).  The court has now done so.

In a February 17, 2009 memorandum opinion (pdf), Judge T.S. Ellis, III affirmed the subpoena and directed Mr. Leonard to testify for the defendants.

Finally, the government will be forced to prove criminal intent on the part of the defendants:

The appeals court rejected (pdf) a pre-trial appeal by the prosecution and affirmed the lower court rulings of Judge T.S. Ellis, III that define which classified information may be introduced at trial.

The appeals court said that the lower court had correctly assessed the relevance of two documents that the defense wished to introduce, referred to as the “FBI Report” and the “Israeli Briefing Document,” and that it had properly devised substitutions for certain classified information in the documents so that they may be presented at trial.

More importantly, the new ruling left undisturbed Judge Ellis’ ground-breaking interpretation of the procedural requirements of the Espionage Act.  That August 2006 interpretation stated that in order for the Espionage Act to be constitutional, it must require prosecutors to show that the defendants possessed a series of “culpable mental states” and that they knowingly chose to violate the law.  (See “Ruling in AIPAC Case Interprets Espionage Act Narrowly,” Secrecy News, February 20, 2007.)  This imposes a substantial, perhaps insurmountable burden of proof that the prosecutors must meet in order to prevail.

The new ruling counts squarely as a win for the defense.  But it also includes a hint of support for the prosecutors’ view that the lower court has made the Espionage Act too difficult to prosecute.

“We are … concerned by the potential that [Judge Ellis' August 2006 ruling (pdf)] imposes an additional burden on the prosecution not mandated by the governing statute,” the appeals court said in a strikingly ambivalent footnote (footnote 8).  That concern has no immediate legal consequences, but it suggests that the proper interpretation of the Espionage Act is not yet a settled matter.

In sum, this case should not have been brought. Why it was brought is most likely a function of incompetence, if not inappropriate animus toward those who lawfully work in the U.S. advancing Israeli concerns. Whether or not that is the case, the Espionage Act is a creaky, antiquated vehicle for bringing such a case and the judge is too smart to allow the Justice Department’s prosecutors to get away with ignoring the clear words of the statute.

Finally, since no one in the Justice Department has the guts to stop this, it probably will continue on to trial in late May. The government will lose, and the burden which will fall on subsequent prosecutions under the Espionage Act is so substantial that in effect we will be without the means to punish those who (unlike Rosen and Weissman) actually do engage in espionage on U.S. soil.

Clarice Feldman is a retired litigation lawyer who lives in D.C. She's a news junkie addicted to the internet.

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