The AIPAC Spy Case, RIP

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.)