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Analysis: High bar set in AIPAC case

By SHAUN WATERMAN, UPI Homeland and National Security Editor

WASHINGTON, Nov. 30 (UPI) -- The government has been set a high bar for conviction in the AIPAC secrets case -- prosecutors must show the two lobbyists charged under espionage laws knew that the disclosure of the material they allegedly passed to reporters and Israeli officials would hurt the United States.

The defendants, Steven Rosen and Keith Weissman, who were at the time lobbyists for the American-Israel Public Affairs Committee, or AIPAC, are charged with conspiring with Department of Defense intelligence analyst Larry Franklin to leak U.S. secrets in an apparent effort to influence U.S. policy towards Iran.

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In a transcript of a recent pre-trial hearing, made available Tuesday, the judge in the case made it clear that prosecutors must prove intention, or what lawyers call "mens rea" -- Latin for "a guilty mind" -- for every element of the conspiracy.

"The Court imposed the requirement that the government prove that the defendant knew the information ... would harm the United States," Judge Thomas Ellis told the Nov. 16 hearing, though prosecutors had asked that this requirement be lifted.

That is important, explains government transparency advocate Steven Aftergood of the Federation of American Scientists, because it means the defendants, if found guilty, will have been proved to have "the intention of hurting the United States."

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"That distinguishes the activities with which they are charged from the routine activities of reporters and advocates," Aftergood told United Press International, "who may made trade in classified information," but don't so with the intention of harming U.S. security.

He called the bar set by the ruling "a considerable, possibly insurmountable obstacle" to the government.

In a statement announcing the indictment, prosecutors alleged that since at least April 1999, Rosen and Weissman had "use[d] their contacts within the U.S. government ... to gather sensitive U.S. government information, including classified information ... for subsequent unlawful communication, delivery, and transmission to persons not entitled to receive it."

The case has raised the hackles of civil liberties advocates who charge that zealous prosecutors are abusing an over-broad statute designed to punish spies to criminalize the everyday behavior of reporters, lobbyists, and researchers, all of whom occasionally trade in secrets, the stock-in-trade of Washington's back-room policy process.

Jonathan Turley, professor of law at George Washington University, told UPI that the prosecution had "radically expanded the practical scope of national security law." He said it had always been understood that government employees who leaked were in criminal jeopardy, but not the reporters -- or in this case lobbyists -- to whom they were leaking.

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He said the case was an effort to "criminalize the act of simply receiving classified information."

Judge Ellis fueled those fears when told a hearing earlier this year that the law on its face applies to everyone: "academics, lawyers, journalists, professors, whatever."

The Department of Justice routinely declines comment on ongoing cases, but prosecutors have said in court filings that they "recognize that a prosecution under the espionage laws of an actual member of the press ... would raise legitimate and serious issues and would not be undertaken lightly.

Indeed," they conclude, "the fact that there has never been such a prosecution speaks for itself."

Rosen and Weissman's supporters say there is no difference between what they are charged with doing and what reporters and other members of what their lawyers call "the Washington policy community," do every day.

But the reality is more complex, according to former counter-intelligence officials who have followed the case.

They make a distinction between reporters -- who seek information about U.S. policy in order to publish it to illuminate public debate -- and the defendants, who are accused of using the information they obtained in a covert effort to influence U.S. foreign policy, including by passing it on to foreign government officials.

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"This was a counter-espionage investigation," said one retired veteran, pointing out that it had been conducted by the counter-intelligence unit at the FBI's Washington Field Office.

"They were looking for spies. Those guys don't do leaks," he told UPI earlier this year.

The case was originally expected to come to trial this year, but due to its complexity, the date has been repeatedly deferred, according to Aftergood.

Judge Ellis now says he will reserve time in May and June 2007 for a possible trial.

He also said that a Justice Department investigation into who leaked word of the investigation to CBS News in August 2004 -- a full year before indictments were filed -- is "ongoing."

But defense lawyers said they had been told by "senior officials at CBS News" that no one there had been contacted about the investigation.

Nonetheless, the existence of that probe, and others confirmed by officials, including into the leaks about the existence of the National Security Agency's program of warrantless wiretaps aimed at suspected terrorists, raises concerns.

Critics like Turley accuse the administration of launching a "scorched earth campaign against whistleblowers."

He said the AIPAC case, the leak probes, and another investigation in which federal prosecutor Patrick Fitzgerald had sought to review the phone records of New York Times reporters, were all "part of a mosaic that threatens vital First Amendment institutions, like the press."

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