The ordeal of Steven Rosen and Keith Weissman drags on without an end in sight. They are the former AIPAC senior staffers who are accused of violating the Espionage Act by committing the high crime of talking about U.S. foreign policy, something that diplomats, public officials, journalists, etc., do each day in Washington. In the more than ninety years that the Espionage Act has been on the books, this is the first prosecution of its kind, the first prosecution that bears not even the faintest association with anything that can be called espionage.
Yet, these two unfortunates have been indicted for – we know not exactly what – speaking to other AIPAC people, Israeli officials and some folks from the media. There is, so far as I know, no award for organizational cowardice, else AIPAC which quickly jettisoned Rosen and Weissman on the instruction of top Bush Administration officials surely would have received this dubious recognition for its betrayal of two people who served it loyally. Admittedly, by the tens of thousands and even more, American Jews cling to the mirage that AIPAC is our salvation, that this organization which recklessly advertises itself as super-powerful is vital to the security of Israel and the Jewish people.
There is an expanding tendency in cases labeled as national security for the prosecution to claim that it cannot disclose much of its evidence to the defense or, if it can make such disclosure, the defense cannot utilize the material in order to mount a defense of those who have been accused. This is one of the toxic legacies of the late and surely unlamented administration and yet it is a posture that is difficult to challenge because, after all, who wants to be accused of jeopardizing this nation’s security. Especially in the Bush years, federal judges have been afflicted by an extra dose of timidity, too often accepting questionable governmental claims regarding security. In the process, the Bill of Rights has been lost in the shuffle.
A major issue in the Rosen-Weissman prosecution is whether documents that are vital to the defense can be placed on the record. According to a decision issued last week by the U.S. Court of Appeals for the Fourth Circuit, a court not known for an overly developed attachment to the rights of accused persons, “Rosen and Weissman gave notice to the district court and the government that they expected to disclose at trial a large volume of classified information.” After conducting an extensive hearing, the trial judge “determined that a substantial volume of the classified information was indeed relevant and admissible.”
Subsequently, the government moved to produce edited summaries of these documents. The trial judge accepted this approach with respect to certain documents but also ruled that “other such redactions would not afford the defendants the same opportunity to defend themselves as would the admission of the unredacted documents containing classified information.” Predictably, the government appealed. The appellate court has now ruled in favor of the defense. It’s not likely that this is where the matter will end; we are in for additional appeals and legal skirmishes.
The two documents primarily in dispute are referred to as the “FBI Report” and the “Israeli Briefing Document.” It’s not possible to ascertain from the unanimous court of appeals opinion what all of this is about. Here is a delightfully Kafkaesque passage from the opinion:
“The defendants contend that the Israeli Briefing Document is relevant because [REDACTED], and the Document is the best evidence of [REDACTED] about the events described in the Document. The district court initially concluded that the Document was not relevant, but later reconsidered and revised that ruling. It is far from certain that the Document is relevant to show that the defendants [REDACTED]. The Document is a [REDACTED], a matter that could be proven by other means, including the [REDACTED].”
A prosecutor told me many years ago that the government never loses a case, even when the charges are dropped or the accused is acquitted, because defendants suffer severe hardship just by being indicted. For Rosen and Weissman, there has been the loss of their jobs and income, great financial pressure, shame and harm to them and their families, the loss of associations, severe and extended emotional stress and more. The government has had its pound of flesh and then some. It’s time to stop a prosecution that has become a persecution.
Unfortunately, it costs the prosecutors nothing to prosecute, while the defense costs are astronomical. Too frequently, prosecutors are schooled or operate in an environment that with too few exceptions encourages cruelty in service to the ideal of justice. Prosecutors run little or no risk when they exaggerate wrongdoing or twist evidence or pile on or do not disclose exculpatory evidence or even when they engage in lies. They see their mission and mandate as requiring the zenith of adversariness as they pursue the bad guys who deserve to be punished.
While considerable attention is paid to questions of legal ethics, admittedly with marginal beneficial results, too little attention is given to important questions of prosecutorial ethics, to how they can serve the end of justice when they are determined to prosecute at all costs. Prosecutorial abuse is rampant at the state and local levels, the Robert Morgenthaus of the world notwithstanding. It’s now evident that there has been a spread of abuse at the federal level and also that too few federal judges possess the backbone to challenge prosecutorial abuse.
It has been clear in the AIPAC prosecution from the beginning that while Rosen and Weissman may have acted foolishly – too prone to the AIPAC disease of boastfulness – they aren’t criminals. I am certain that what they did pales in comparison with what U.S. security and intelligence officials do daily in Israel.