Defendants Are Dealt a Blow In Aipac Case

February 16, 2007 Edition > Section: National >

BY JOSH GERSTEIN - Staff Reporter of the Sun
February 16, 2007

WASHINGTON — A federal judge in Virginia has dealt two blows to the defense of a pair of pro-Israel lobbyists accused of illegally trafficking in classified information.

In one ruling this week, Judge Thomas Ellis III rejected defense motions to demand testimony from Israeli government officials. In another decision, the judge refused to suppress statements the FBI obtained in 2004 from the two lobbyists, Steven Rosen and Keith Weissman, who were later fired from the American Israel Public Affairs Committee.

Defense lawyers said Israeli officials, who refused to appear as witnesses at the trial, could confirm that Messrs. Rosen and Weissman were not paid or unpaid Israeli agents, explain Israel's relationship with Aipac, and aver that the pair actually advanced American interests through any disclosures of classified information.

Judge Ellis ruled that it was immaterial whether the defendants were Israeli agents, in part because the government has pledged not to make such an argument at trial. The judge said other witnesses could adequately address Aipac's relationship with Israel and the impact of any disclosures.

Judge Ellis also said he doubted he had the power to order the Israeli officials to testify. He observed that a legal assistance treaty between Israel and America has a provision precluding its use by private individuals.

Judge Ellis was dismissive of the defendants' claims that the FBI acted improperly by suggesting it was conducting a security clearance investigation when it was actually pursuing a criminal probe. The judge noted that the defendants are well educated and, according to phone taps, immediately suspected the subterfuge.

"The alleged deception in this case is insufficient to render the statements involuntary. Indeed, a contrary conclusion would be the death knell of all undercover operations, which, to succeed, necessarily require a level and degree of deception and false statements far greater than that presented here," Judge Ellis wrote.

"We hoped the Court would agree with our reasons for seeking the Israeli testimony and are disappointed that it did not," an attorney for Mr. Rosen, Abbe Lowell said in a statement sent by e-mail. "However, we are gratified that the Court reasons included its acknowledgement of the issues we have stated are strong defenses to these charges."

The case, set for trial on June 4, is being watched closely by First Amendment advocates. Part of the indictment is predicated on Messrs. Rosen and Weissman giving classified information to journalists. It is unprecedented for individuals entirely outside the government to be prosecuted for relaying classified information to reporters.

A Defense Department analyst who leaked information to the lobbyists, Lawrence Franklin, has pleaded guilty and is cooperating with prosecutors.