Faster, Please!

The Great Mole Hunt, 2004-2008

In late August, 2004, Leslie Stahl of CBS News’s “60 Minutes” breathlessly announced that the FBI was about to break a “full-fledged espionage case.” Ms Stahl informed her viewers that “the suspected mole supplied Israel with classified materials that include secret White House policy deliberations on Iran.”

All but openly sourcing the story to FBI official David Szady (CBS called him “Dave”), the “60 Minutes” report alleged that the “suspected spy” was a Pentagon analyst who “turned over a presidential directive on U.S. policy toward Iran” to two high-level employees of AIPAC, the American Israel Public Affairs Committee, who in turn passed this “classified information” to Israeli officials.

The FBI was said to have a very strong case, and arrests were pending.

Nobody was ever arrested, however, and, on closer examination, the “presidential directive” wasn’t any such thing. American policy on Iran, as always, was under debate within the Administration, it seemed that the president would soon be presented with a formal definition of Iran policy, and everyone in Washington with a desire to shape that policy was busily weighing in. The Pentagon analyst (subsequently identified as Larry Franklin, a former Air Force colonel working as a civilian in the Office of the Secretary of Defense) had a proposed draft of the policy, and was looking for political support. He hoped that AIPAC, a well-respected and sometimes influential lobbying organization, could help convince the White House to endorse the views in the draft proposal. Franklin was trying to route the memo to the national security council via AIPAC, and he also hoped that AIPAC could enlist the Israeli Government in the effort.

The FBI took a dim view of this enterprise, and told CBS that they had wiretaps, photography and “undercover surveillance” that “document the passing of classified information from the mole, to the men at AIPAC, and on to the Israelis.” The Bureau was alarmed because this put the Israelis “inside the decision-making loop” so they could “try to influence the outcome.”

In the fullness of time, the two AIPAC guys–Steven Rosen and Keith Weissman–were indicted under the terms of a World War I Espionage Act, for passing classified information to journalists and Israeli officials. Franklin was similarly indicted, and negotiated a plea bargain that enabled his wife to collect half his government pension in return for a promise to testify at the AIPAC trial.

That trial has yet to take place, and it probably never will. For one thing, the claim that the policy memo contained “classified information” has yet to be demonstrated. Several people who are familiar with the document insist that it contained no secret information, and believe that the government will be hard pressed to show that it did. Franklin apparently did pass some classified information, but only at the direction of Szady and his team, in a “sting” operation designed to show that Rosen and Weissman gave information to the Israelis. But this is hardly news; it was their job, after all, to track American policy on issues vital to Israel, and share their knowledge with Israelis. Nor is it at all clear that it is illegal for lobbyists to disseminate classified information to anyone., above all if that information was spoon-fed to them by the very same government that is accusing them of undermining our national security.

That the Justice Department had to resort to a 1917 law that, as far as I can tell, has only been applied once in the intervening 91 years shows how fiercely the FBI was straining to crack down on AIPAC. The old law asserts that all citizens, whether private persons or government employees, are bound to protect government secrets. But we have long distinguished between government employees–many of whom are cleared to receive classified information but must swear not to disclose it to unauthorized persons–and the rest of us, who do not take such oaths. The normal practice is to prosecute those government employees who disclose secrets.

As some alarmed journalists have pointed out, they collect information and then tell the world about it. Are they, or lobbyists, bound by the constraints imposed on government employees who swear not to give classified information to “unauthorized persons?” If the AIPAC two are convicted on the basis of the 1917 law, how many journalists will be indicted the next morning?

This is clearly not–whatever CBS News loudly proclaimed nearly four years ago–a normal “full-fledged espionage case.” If it were, the alleged culprits would have been prosecuted the way KGB agents, or full-fledged spies like Jonathan Pollard, were. Instead, the government is jumping through hoops to find grounds for prosecution.

Obviously, Szady et. al. had a peculiar view of what constitutes espionage. They did not think it was right for the Israelis to “try to influence the outcome” of the internal American policy debate, but this is not espionage, and the FBI’s anger is truly barking at the moon. Every foreign country of any consequence ceaselessly works to influence our foreign policy, and that is a normal and accepted activity in Washington. Indeed, the Israelis would be crazy not to try to influence the United States on Iran policy; Iran is an existential threat to Israel, and America is the Israelis’ best hope to thwart Iran’s oft-stated intention to destroy the Jewish state.

Beyond the vexing questions about whether or not the charges ever should have been brought, the prosecutors have run up against two huge technical obstacles . The first is the announced defense intention to call several high-ranking current and former national security officials, including Colin Powell, Condoleezza Rice, Richard Armitage, Steven Hadley, and Paul Wolfowitz. They would apparently be asked to testify about the normal internal policy debates, in order to have a jury decide if the AIPAC officials did anything unusual or improper. The judge in the case has ruled in favor of the defense. Do you think those top officials want to testify under oath about such matters?

The second roadblock is the defense request for a considerable amount of classified information. I don’t know what it is, but presumably it would deal with Iran policy, and perhaps with unauthorized leaks to the press, in order to put the AIPAC case in proper context. The government fought against the request for classified information, but once again Judge Ellis ruled in favor of the defendants. Last week, the government announced it might appeal the judge’s decision, and they have another week to do so. They know, however, that precedent favors the defense, and their chances of winning an appeal are not great.

As things stand now, the government’s big prosecution of “full-fledged espionage” is in big trouble. Key witnesses won’t want to testify, sensitive information would have to be released–and heard in open session–and there are grave doubts about the reasonableness and perhaps even the legitimacy of the fundamental case.

CBS similarly has a lot of mud on its face. Leslie Stahl and her cohorts at CBS had every reason to be suspicious of this case from the get-go. “60 Minutes” had previously done an exposé of the FBI’s Szady, who had falsely accused a terrific CIA officer of being a Soviet spy (the real mole was Robert Hanssen, a fellow FBI official), derailed his career, terrorized his children, and permitted Hanssen to continue his espionage on behalf of the KGB. Why, then, did Stahl totally embrace this story? Why did she go with a source she knew, better than most, to be dubious?

Finally, there are the broader questions, above all the government’s insistence that all citizens, whether or not they have sworn an oath to protect our national secrets, are bound to do so, or face prosecution. If that dubious claim is upheld, then life as we know it will change overnight. Cocktail party banter, offhand schmoozing, and perhaps even nightclub bragging, will all have to be carefully checked to see if anything secret was revealed. And conversations about foreign policy will suddenly become much less interesting, as everyone involved will have to take care to avoid anything that might be considered classified by some ambitious prosecutor.

Secrets are certainly important. But I am not convinced that any classified information–aside from that packaged by the FBI–was ever disclosed in this affair, I regret that three good people were subjected to the full force of the criminal justice system over a matter that should have been dealt with administratively, if at all, and I dread the consequences if, against all the odds, the government goes to court, exposes many more secrets than the alleged “spies” ever dreamt of, and somehow wins.