A Defense Against Government Secrecy and Overclassification

This week, with much fanfare, President Obama announced a new presidential initiative aimed at reducing unnecessary government secrecy. For some, this initiative was almost too late. Ask Keith Weissman and Steve Rosen, two Middle East policy experts who were investigated and charged with espionage for disclosing what the indictment frighteningly labeled "classified national defense information," but which turned out to be Middle East policy information that had already appeared in this and other newspapers. In their case, overclassification meant five years of investigative hell, loss of their jobs and exclusion from their occupational world. It also came close to meaning prison.

For five years, the two men, at the time employees of the American Israel Public Affairs Committee, known as AIPAC, went about their daily business, unaware that the FBI was taping their every conversation. These two U.S. citizens were monitored doing exactly what their job demanded of them: discussing Middle East policy with U.S. government officials, and using what they learned to promote a pro-Israel American foreign policy. Their sincere belief was that a close alliance with Israel was in the United States' best interests. Well known in the foreign policy establishment of our nation's capital, they were sought out because of their extensive knowledge of Middle East matters pertaining to Israel, Iran, Iraq, Turkey, the Palestinians and beyond. As much as they wanted to talk to government officials, these same government officials wanted to talk to them.

No bribes, no lies, no theft, no documents, just policy talk. If Rosen and Weissman were guilty of espionage, then so are most of the journalists, lobbyists and foreign policy experts in Washington D.C. and beyond. In 2005, Rosen and Weissman were indicted under the 1917 Espionage Act, an almost-never used relic of World War I. The crime charged was repeating to others -- AIPAC colleagues, journalists, and Israeli officials -- what was shared with them by high-level officials in the State Department, Defense Department and the National Security Council. (Interestingly, with but one exception, none of the various government officials who allegedly acted illegally in sharing this "classified national defense information" with Rosen and Weissman was arrested or charged. Indeed, in one case, the disclosing official was promoted numerous times to the highest levels of government during the time Rosen and Weissman's case was pending).

The prosecutors said that the information was classified and its disclosure "might" damage national security. Not "will," not "probably will," not "likely will," but "might." The government then brought the espionage charges while successfully pressuring AIPAC to fire Rosen and Weissman and cut off the funding of their multi-million dollar defense, an act which the trial judge later labeled "unquestionably obnoxious" and "fraught with the risk of constitutional harm."

As it turned out, none of the information had the potential to damage national security. Most of what the two had discussed had already been published in the newspapers for all to see. The trial judge authorized us to introduce some almost 50 newspaper articles at trial to prove this point, including articles from the Washington Post, the New York Times, and the Wall Street Journal. But the prosecutors did not care. They took the position that because the newspapers had published information that had not been formally declassified, it was a crime under the Espionage Act "willfully" to repeat the information even after publication.

We, the defense attorneys, were stunned. As we argued, that meant that not only could the government indict journalists responsible for award-winning work on domestic wiretapping and surveillance, international renditions, torture policy and practice, it also meant that the government could indict anyone who discussed such issues after the disclosures appeared in the newspapers.

The prosecutors pressed this position even when they learned that the defendants' experts, which included former U.S. ambassadors to Israel, Samuel Lewis and Ned Walker, and high-level State Department officials as well as former officials of the National Security Council, Mort Halperin and Mark Parris, were prepared to testify that the classified information was innocuous. Max Frankel, the former Executive Editor of the New York Times, was prepared to testify that these types of leaks are common place, and are done purposely by government officials to promote the administration's agenda. Then Secretary of State Condaleeza Rice and National Security Advisor Stephen Hadley were successfully subpoenaed by the defense to testify that they themselves regularly shared information with AIPAC on sensitive Middle East issues.

One defense expert, Bill Leonard, the recently retired "Classification Czar" of the United States whose job as a government official had been to prevent leaks, reviewed the information at issue and pronounced himself "chagrined at what my government has done" in the prosecution of this case. The prosecutors -- who had tried to persuade this expert to testify on their behalf when he was a government official -- responded by threatening him with criminal prosecution if he were to testify as an expert for the defense.

Moreover, much of the information turned out not even to be classified. For example, another defense expert, Carl Ford, formerly the highest intelligence official in the State Department, looked at the information which he himself had supposedly classified and said, no, that the information had never been classified at all. The unclassified document had been stamped Secret only because at one point it had been stapled as an exhibit to a genuinely classified document, but not because it contained any classified information standing on its own.

Weissman and Rosen were going to go to jail because of a staple.

Invoking "national security," the government fought efforts by counsel to get information crucial to the defense. The government also sought to have the defendants -- American citizens who faced trial in federal court, not Guantanamo Bay -- tried in secret.

All of this was because the information that our clients discussed happened to match information in documents -- documents never seen by Rosen and Weissman -- which the government unearthed from its archives bearing a classification stamp. For years, no one investigating or prosecuting the case questioned whether that stamp was justified.

Fortunately, on the eve of trial, a new administration came into office, and new leadership came to the Justice Department, including Attorney General Eric Holder, just named by President Obama to the new task force that will re-examine the government's penchant for secrecy.

We wrote to Attorney General Holder, saying our clients were innocent, and arguing that their discussion of this information was protected by the Constitution. We pointed out that the learned trial judge, T. S. Ellis, III, had reviewed the information at issue and found that Rosen and Weissman's discussions were at the "core of the First Amendment's guarantees." And we pointed out that this was a prosecution premised on overclassification.

Two weeks ago the Justice Department dropped the case, after dozens of FBI counterintelligence agents and teams of prosecutors had investigated and then prosecuted the case for a total of ten years. It is almost unprecedented for the Justice Department to drop an espionage prosecution.

It was rampant overclassification that turned the lives of Rosen and Weissman into nightmares. We hope their story will serve as a guide to those examining the future of classification in this country.