After costing the named defendants their positions, subjecting them and the American Israel Public Affairs Committee (AIPAC) to unwarranted slander and speculation, and running up the defense legal tab to over four million dollars, the Department of Justice last Friday moved to dismiss the indictment against Steve Rosen and Keith Weissman, former officials of AIPAC.
The language in the government’s motion to dismiss is dry and somewhat disingenuous (the motion can be found here in PDF). The motion suggests that it wasn’t obvious from the outset that the case would require some disclosure of classified information. It’s hard for me to picture how the government imagined such sensitive disclosures would occur. (Of course, at one point in the trial they outlined one plan to do so — something I called at the time the “cone of silence” procedure. It was so ludicrous the Department of Justice was laughed out of court on it.)
As for the other pre-trial rulings referred to in the motion to dismiss, I discussed them here in an article for Pajamas Media. (See additional details in my American Thinker article here.) At that time, counsel for the defendants saw no sign that the government was willing to drop the matter despite the contrary rulings and substantial evidentiary questions directed at the prosecutors, and I predicted (wrongly) it would not let go of the case:
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.
No new rulings occurred in the case from the time I wrote that article and the action on Friday. However, two other things did occur:
(1) More evidence of prosecutorial misconduct in the case against Senator Ted Stevens surfaced. The Department of Justice conducted a substantive in house review of the entire matter and moved on April 7, 2009, to dismiss the case. This set in play a procedure for fairly reviewing cases undertaken during the prior administration which had high visibility and demonstrable problems. Reportedly this same procedure was utilized to review the AIPAC matter and resulted in the same conclusion: The Department should move to dismiss a case that probably should never have been brought and which was so weighed down with contrary rulings it was unlikely to result in a conviction. In other words, a method had been devised to get around the heel dragging of a prosecution team that had much invested in continuing a sure loser of a case.
(2) Someone or some people significantly overplayed their hand in trying to keep this case going. Just after the Department of Justice suffered their latest losses in the U.S Court of Appeals for the Fourth Circuit, an utterly preposterous charge was leveled against Congresswoman Harman, a key AIPAC supporter on the House Intelligence Committee. Per Jeff Stein of Congressional Quarterly:
Rep. Jane Harman, a California Democrat long involved in intelligence issues, was overheard on a 2005 National Security Agency wiretap telling a suspected Israeli agent that she would lobby the Justice Department to reduce espionage-related charges against two former officials of the American Israel Public Affairs Committee (AIPAC).
In return, the Israeli agent pledged to help lobby for Harman to become chairwoman of the House Intelligence Committee.
Two former senior national security officials, one who has read a transcript of the wiretap and a second who was briefed on its contents, said Harman agreed during the conversation to “waddle into” the AIPAC case “if you think it’ll make a difference.” Their accounts were confirmed by a third source with knowledge of the wiretapped conversation and subsequent events.
In exchange, the sources reported, the suspected Israeli agent pledged to lobby House Speaker Nancy Pelosi , D-Calif., who was then the House minority leader, to appoint Harman chairwoman of the Intelligence Committee if Democrats won control of the House in the 2006 elections.
Harman hung up the phone after saying, “This conversation doesn’t exist,” according to the former officials.
The sources, who discussed the matter only on condition of anonymity because of the sensitivity of domestic NSA eavesdropping, said Justice Department officials decided there was sufficient evidence to initiate an FBI investigation of Harman. But at the last minute, Attorney General Alberto R. Gonzales aborted the plan, saying that he needed Harman’s help defending the administration’s warrantless wiretap program.
Parsing the report and noting later developments in the story, there is no doubt in my mind that this is a recycled and embellished version of a report which first surfaced in 2006 and was promoted and spread by the very people behind the initiation of the case who wished to keep it going in the face of insurmountable odds for the government.
NSA never wiretapped Harman. Neither did the CIA. If there was a wiretap, it was done by the FBI, authorized by Director Robert Mueller. One of the director’s subordinates is David Szady — a man known to believe that the Israelis are engaged in widespread espionage here. (This is a man so shrewd he overlooked that two of his agents were literally in bed with a top Chinese spy. He also practically destroyed the career of CIA official Brian Kelly because he missed that one of his own men, Robert Hanssen, was the Russian double agent.)
The source of the information about Harman is said by Stein to be:
Two former senior national security officials, one who has read a transcript of the wiretap and a second who was briefed on its contents.
This means only one of his sources even claims to have firsthand knowledge of the information. If the FBI was the agency tapping the conversation (as it now appears to have been), it is fair to assume the former security official who had firsthand knowledge of the case was Szady or someone working for him. Who the second man is or where he worked is less clear. But it is safe to say that there are at least two former national security officials who share Szady’s view of Israel and its supporters. One is Michael Scheuer, the man the CIA had watching Osama bin Laden.
Scheuer’s views on Israel are well-known. Here’s one of his on the record observations:
QUESTIONER: I’m curious — Gary Rosen from Commentary magazine. If you could just elaborate a little bit on the clandestine ways in which Israel and presumably Jews have managed to so control debate over this fundamental foreign policy question.
SCHEUER: Well, the clandestine aspect is that, clearly, the ability to influence the Congress — that’s a clandestine activity, a covert activity. You know to some extent, the idea that the Holocaust Museum here in our country is another great ability to somehow make people feel guilty about being the people who did the most to try to end the Holocaust. I find — I just find the whole debate in the United States unbearably restricted with the inability to factually discuss what goes on between our two countries.
A third former national security official who shares these views is Pat Lang, formerly of the DIA.
Here’s a sample of his thinking:
So that’s it folks. The American Sovereignty that Rush, O’Reilly and Hannity go on about really does not exist. AIPAC (the non-lobby that some have thought the agent of the Jewish Agency and Israel in Washington) evidently has enough clout with Congress and Obama that Ha’aretz believes it is doubtful that the United States would honor its undertaking to defend Iraqi airspace. Ha’aretz is apparently also assured that nothing Israel chooses to do would cause America’s grants of aid to Israel to come to an end or even a pause.
Well, why would the Israelis not think that? The Department of Justice has asked that espionage charges be dropped against two former AIPAC employees. AIPAC is now publicly and officially rejoicing in this outcome for its former employees. Bravo! Well done! Loyalty to former employees is admirable. A further confidence building development is the ease with which Representative Harman mastered the brouhaha over her intercepted conversation with a “suspected Israeli agent.” The American Main Stream Media (MSM) could not have been more helpful in dealing with that momentary embarrassment[sic]. And why not? How absurd that anyone could think that Israel spies on the United States government and that she would seek to influence a court case involving men accused of spying on her behalf. How absurd! Bibi is undoubtedly looking forward to his trip to Washington. He will have a chance for a friendly talk with the president and with his many friends in Congress
There is the suggestion that there is something illegal or unethical for a lobbyist to offer to support a congressional representative for a chairmanship. This stands the whole idea of legal lobbying on its head. Of course lobbyists want to place those who support them at the head of committees which oversee areas of common interest. This was the nonsensical idiocy first spread about Congresswoman Harman in 2006, when it appeared that the claim was being made to dash her shot at the chairmanship of the Intelligence Committee.
The 2006 version of the Harman story first floated by The Nation (origin of David Corn’s tale of Plame as a super secret agent outed by the Bush administration as revenge against her truth-telling husband) was sparer than the 2009 Congressional Quarterly report.
Did a Democratic member of Congress improperly enlist the support of a major pro-Israel lobbying group to try to win a top committee assignment? That’s the question at the heart of an ongoing investigation by the FBI and Justice Department prosecutors, who are examining whether Rep. Jane Harman of California and the American Israel Public Affairs Committee (AIPAC) may have violated the law in a scheme to get Harman reappointed as the top Democrat on the House intelligence committee, according to knowledgeable sources in and out of the U.S. government.
The sources tell TIME that the investigation by Justice and the Federal Bureau of Investigation, which has simmered out of sight since about the middle of last year, is examining whether Harman and AIPAC arranged for wealthy supporters to lobby House Democratic leader Nancy Pelosi on Harman’s behalf. Harman said Thursday in a voicemail message that any investigation of or allegation of improper conduct by her would be “irresponsible, laughable and scurrilous.” On Friday, Washington GOP super lawyer Ted Olson left voicemail messages underscoring that Harman has no knowledge of any investigation. “Congresswoman Harman has asked me to follow up on calls you’ve had,” Olson said. “She is not aware of any such investigation, does not believe that it is occurring, and wanted to make sure that you and your editors knew that as far as she knows, that’s not true. … No one from the Justice Department has contacted her.” It is not, however, a given that Harman would know that she is under investigation. In a follow-up phone call from California, Olson said Harman hired him this morning because she takes seriously the possibility of a media report about an investigation of her, even though she does not believe it herself.
Harman has been a longtime strong supporter of Israel and AIPAC. Are we to believe that AIPAC would prefer Rep. Sylvester Reyes (D-TX) and would only have supported Harman if she helped by interfering with the AIPAC criminal case?
Additionally, Harman denied — and Department of Justice officials including Szady himself confirmed — that she never made any effort to aid the AIPAC defendants. The very notion that there would have to have been a quid pro quo of any kind with AIPAC is idiotic.
A perfect prosecutorial storm was created involving supporters of AIPAC and Harman and the idea that DOJ had gone too far in an effort to criminalize political conduct. It only subsided when Holder had cover to do what the Department should have done at the outset: exercise some adult supervision.
The only mystery to me about the case and the efforts to keep it going when it was obviously going to lose is what took everybody so long to wise up?