Misuse of Espionage Act to Prosecute AIPAC Defendants

[leveymg]

Viet D. Dinh -- Bush's Assistant Attorney General from 2001-2003, Patriot Act author -- and I disagree about many, many issues. But, we agree on one thing. It would be a mistake to apply the 1917 Espionage Act in the prosecution of two former AIPAC lobbyists accused of receiving classified information from convicted Pentagon spy Larry Franklin. A conviction for receiving classified information would set a very bad precedent, as it would for the first time in the United States erect a de facto Official Secrets Act. Deputy Attorney General Paul McNulty, the prosecutor in this case, should decline those particular charges and instead prosecute the two remaining defendants under other felony statutes, including perjury and obstruction of justice, contained in the indictment.

***

In my view, former Assistant Attorney General Viet D. Dinh is most notorious as the colleague of Alberto Gonzales and supervisor of John C. Yoo, who co-authored the Justice Department memos approving the legality of the program of "extraordinary renditions", torture and indefinite detention incommunicado of persons suspected of involvement with or knowledge of terrorist groups. Dinh authored key sections of the USA PATRIOT Act and would give immunity from prosecution to government officials who wiretapped Americans without warrants. See, http://en.wikipedia.org/wiki/Viet_D._Dinh; also, see, http://www.scoop.co.nz/stories/HL0302/S00217.htm

More than anyone else, Mr. Dinh along with Messrs. Gonzales and Yoo are thus the draftsmen of the worst abuses attendant to the Bush Administration's so-called War on Terrorism. For this, I believe that Mr. Dinh and his colleagues should be put on trial for crimes against humanity. Those who have read my contributions here at DU and at DailyKos know that I have never been shy about calling for the aggressive prosecution of U.S. officials who, in my judgment, have broken the law or subverted constitutional processes behind the shield of high office and state power.

It is thus with enormous surprise that I find myself agreeing with Mr. Dinh on one point that cuts across expected ideological boundaries. This morning's Washington Post reports that Viet D. Dinh is opposed to the use of sections of the Espionage Act to prosecute Steven J. Rosen and Keith Weissman, a pair of AIPAC lobbyists accused of conveying classified information from convicted Pentagon spy Larry Franklin to Israeli Intelligence agents. See, "Former Official Backs Lobbyists in Leak Case" by Walter Pincus
February 14, 2006; A04; http://www.washingtonpost.com/wp-dyn/content/article/2006/02/13/AR2006021301905_pf.html; also, see, Indictment of Franklin, Rosen, and Weissman, http://www.globalsecurity.org/intell/library/reports/2005/franklin_indictment_04aug2005.htm

Dinh, who has returned to his former teaching post at Georgetown Law School, wrote in opposition to the use of the Act: ""Never has a lobbyist, reporter, or any other non-government employee been charged . . . for receiving oral information the government alleges to be national defense material as part of that person's normal First Amendment protected activities," the defense memo states.

In the 90 years since the act was originally drafted, according to the Dinh memorandum, "there have been no reported prosecutions of persons outside government for repeating information that they obtained verbally, and were thus unable to know conclusively whether or to what extent that information could be repeated." In other words, Dinh is saying, the verbal leak is just too much a part of the way Washington does business to outlaw.

Take the Larry Franklin OSP-AIPAC Spy Scandal, for instance. Franklin, a former Iran Desk Officer at the Pentagon, pleaded guilty late last year to charges that he had provided classified documents in an espionage and disinformation program run by Israeli intelligence and the neocon cabal in Washington. Franklin, himself, was convicted of and faces 12 years in prison for violation of TITLE 18 > PART I > CHAPTER 93 > Sec. 1924. - Unauthorized Removal and Retention of Classified Documents or Material. The FBI busted him in May 2004 of stashing hundreds of secret Pentagon documents in his West Virginia home, and was discussing classified information with two lobbyist's from the Israel American Public Affairs Committee (AIPAC). But, there's a side of this story that has been barely touched by the major media. Larry Franklin was at the center of the Mossad-OSP pipeline in both the Niger yellowcake forgery and a similar operation to plant evidence of Iranian WMD in Pentagon files.

Franklin's indictment states that the Iran Desk Officer inside OSP changed a report on Iranian nuclear program using "suggestions" supplied by a Israeli intelligence officer, identified as "FO3". That officer was Naor Gilon, the Mossad Chief of Station at the Israeli Embassy. Rosen and Weissman are also accused of trying to help Franklin get "to the elbow of the President" as a means of influencing U.S. policy against Iran. Gilon fled the country shortly after news leaked that Franklin was cooperating with an FBI investigation of Israeli spying. One really needs to read the indictment in the Larry Franklin case. Particularly, see pp. 23-24, para. 6. http://www.physics911.net/franklinpdf2.pdf ; also,see, OSP-AIPAC SPY CASE REVEALS ISRAELI PLOT TO PLANT IRAN WMD DATA by leveymg, http://www.dailykos.com/story/2005/6/15/12176/9231.

***

In conclusion, I agree with Dihn, but only this far. If the Espionage Act has never before been used to prosecute persons for receiving classified information, this is not time for the government to start.

Of course, it remains perfectly proper to use the Espionage Act to prosecute high government officials for betraying the public trust by maliciously releasing secrets to destroy their perceived political enemies. Among other high officials facing potential multiple felony charges, Vice President Dick Cheney has been accused of "authorizing" his aide, I. Lewis Scooter Libby, to release classified information contained in a CIA National Intelligence Estimate (NIE) to Judy Miller and other reporters in a campaign to discredit Ambassador Joseph Wilson. That campaign by White House officials led, of course, to the illegal "outing" of the identity of Valerie Plame as an undercover CIA officer. See, "U.S. v. CHENEY: The Plamegate Indictment" by leveymg, http://www.dailykos.com/story/2006/2/10/105540/799

We look forward to the aggressive application of the Espionage Act, as well as federal conspiracy, perjury, and obstruction of justice charges against Mr. Cheney and other ranking members of the BushCo cabal. But, no thank you to the Official Secrets Act.

[xchrom]

1. so as long as it's oral -- aipac can continue to receive

classified information?

it seems to me to be a law primed to use as you choose to use it.

[leveymg]

3. The official can be prosecuted but not the receiver of

verbal information, as the Espionage Act has been used up until now.

Prosecute both, but under different statutes.

[jrw14125]

2. It's Viet Dihn, not Mihn

[leveymg]

4. Thanks.

No, he is most definitely not Viet Mihn.

[Wordie]

5. Regardless of the precedent, wouldn't it be a good thing for transmission

of classified information to be restricted? ...in this way or some other?

Why should agents of foreign governments have access to classified material through informal channels? If there is a need to know, shouldn't they be informed in a formal way? It appears that the way things have been handled up to this point isn't so great. It seems to me that if there is a problem with the "normal" way that business is done in Washington, this is as good a time to start as any.

[leveymg]

6. Do we really want to send people to jail for publishing state "secrets"?

I know very well that the AIPAC case wasn't whistleblowing - it was espionage. But, the problem is the Bush Administration wants to silence what's left of the newsmedia by using this case as a way of getting an OSA without having to convince Congress to pass it.

You are aware that the Justice Dept is moving to investigate and prosecute whoever leaked the NSA spying story to Risen? This is intended as a direct threat to the NYT - as bad as it's become, we still need what's left of the newspapers.

[Wordie]

7. I draw a distinction between domestic whistleblowing and giving classified

info to foreign governments. I don't know if the current law makes that distinction, but if not, it should. If the law in question needs to be updated to reflect that, fine with me.

[leveymg]

9. I agree about that distinction. But, how do you punish

passing secrets to foreign powers without effectively outlawing domestic whistleblowing?

[Wordie]

11. I see no reason why the distinction could not be made in the law. eom

[dusmcj]

8. suggest an alternate statute

to use to prosecute them for taking the information they received and handing it over to a foreign power. Or are you suggesting that they should not be prosecuted for that ?

[leveymg]

10. Prosecute the AIPAC guys for perjury - that's already in the indictment.

I would urge McNulty to charge them under the federal conspiracy statute, as well. Believe me, I want to see Rosen and Weissman get lots of jail time for their part in this.

[dusmcj]

13. I think I understand your point

They've already been busted for handing information off to the Israelis. Now they're being prosecuted for receiving the information from someone who shouldn't have given it to them. (Do I have it right now ?) Very interesting.

It would seem to me that any parties involved in an inappropriate exchange of information which is deemed classified have drawn suspicion on themselves, sender as well as receiver. It also seems to me that such receivers could be prosecuted for soliciting and conspiracy as opposed to receiving, which could avoid the OSA quandary you mention. Since you seem to be well-versed on the topic, it would be interesting if you would detail the concerns with establishing an OSA (presumably referring to the British example) if you have the time.

[leveymg]

14. Please see the thread at DKos for discussion of these issues.

Sorry, I didn't see your post until now.

http://www.dailykos.com/story/2006/2/14/12390/3206

[dusmcj]

15. an OSA and precedent based on it would chill would-be Ellsbergs ?

Interesting. All based on the statement that the recipients of classified information (as opposed to the sources) have never been prosecuted under the Espionage Act. Good point if this is your meaning, hope it gets explored further. Since chilling potential Ellsbergs would be doubleplusgood per this administration... And here they have a pretext for instantiating it. A "win-win" solution for our corporate government.

[Wilms]

12. K&R n/t