Graymail and Freedom of the Press
by Grant F. Smith
The Associated Press reported a major victory for defendants in the AIPAC espionage trial on April 17th, 2007. "Prosecutors suffered a setback yesterday in their case against two former pro-Israel lobbyists accused of violating the 1917 Espionage Act when a federal judge rejected the government's proposal for conducting much of the trial in secret." The presiding judge, T. S. Ellis III underscored the gravity of the situation. "If the prosecution decline[s] to submit any substitutions [for classified evidence] that you would ever make public, then maybe ... I have to decide whether to dismiss the indictment, if that's the case."
As various elements of the Israel lobby trumpet the ruling as a victory for free speech, it is useful to review not only the involvement of mainstream corporate media in trafficking classified information in the AIPAC espionage case, but also their past record on secret evidence in other high profile criminal cases.
Mainstream media's formal legal foray into the AIPAC case was triggered by a government motion. On February 16, 2007 federal prosecutors filed a "Classified Intelligence Procedures Act" (CIPA) motion with the contents sealed from public view. CIPA is an established process under which courts operate when classified information is expected to be used at trial. In response, defendants Rosen and Weissman filed a sealed motion to strike the CIPA requests and the government's motion to close the trial.
On March 13, 2007 attorney Jay Ward Brown filed a motion to intervene (PDF) and argue against the DOJ prosecutors' proposal to "limit public access to classified portions of the trial proceedings." Brown filed the motion on behalf of elite media clients including the Newspaper Guild, Communications Workers of America, Radio-Television News Directors Association, Reuters America LLC, Society of Professional Journalists, Time, Inc., The Washington Post, Hearst Corp., Reporters Committee for Freedom of the Press, ABC, Inc., American Society of Newspaper Editors, The Associated Press, Dow Jones & Company, Inc., and the Newspaper Association of America, Inc. The collective pressure and threat brought to bear on Judge T.S. Ellis was implicit in the motion: Any attempt to introduce classified evidence or protect sources and methods with closed proceedings would be widely reported on as Soviet era secrecy in a kangaroo court.
Titled an "Emergency Motion for Leave to Intervene", the filing sought to keep the trial completely open, ostensibly in the interest of press coverage. The motion also subtly expresses mainstream media preconceptions about the trial, stating in the filing the case is worth coverage because of the "unusual factual circumstances that gave rise to their (Rosen and Weissman) indictment" and that the case involves an "unprecedented application of the Espionage Act". The court docket (PDF) reveals this is only the latest skirmish in a legal battle that has been raging for well over a year and a half, though the trial is scheduled to begin on June 4, 2007.
On the surface this seems to be a triumph of a free press over government secrecy. However, the involvement of the elite media in the AIPAC espionage trial goes far beyond the motion or what they routinely report. A few of the same corporate news outlets filing the motion were willingly used by Weissman and Rosen to disseminate classified information to further AIPAC's policy objectives. On July 21, 2004, Weissman and Rosen called Washington Post reporter Glenn Kessler to pass information that they said was from "an American intelligence source". That source is now known to be Col. Lawrence Franklin, a DoD employee sentenced to 12 years in prison. The Israel lobbyists were hoping to influence US policy on Iran. In 2003 Rosen relayed classified information to Reuters correspondent Carol Giacomo and Washington Post reporter Michael Dobbs about the contents of confidential drafts of a US presidential directive advocating a more aggressive US posture toward Iran. Dobbs included the classified information in a story two weeks later.
Another AIPAC motion to intervene filer, the Reporters Committee for Freedom of the Press, clarified the mainstream corporate media's collective desire to continue serving as a willing conduit for selectively released classified information, According to Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, "Journalists who cover national security and defense receive classified information all the time, It's virtually routine. If that were the standard for bringing an espionage case, we'd be locking up a lot of people in this town and there would be fewer sources of information."
Notwithstanding the press's apparent willingness to be used to further AIPAC or any other lobbies' policy objectives by selective disclosure of classified information, secrecy in trials raises questions. Does the elite media's own reporting record reveal a consistent industrywide commitment calling for disclosure of secret evidence in all high profile criminal trials? It does not.
The New York Times chided the Iran Contra trial defense of Oliver North in an article titled "North's Lawyers Trying to Derail Prosecutor's Plan" published in 1989. Reporter Michael Wines reported, "The Federal judge in the Iran-contra case today rejected the bulk of Oliver L. North's demand to use 30,000 pages of secret documents as evidence in his defense, accusing Mr. North of making the request in a calculated effort to 'frustrate the prosecution.''' Another AIPAC espionage motion filer, Time Inc., also had a different take on classified evidence in an earlier era. Time reporter George J. Church wrote in a piece called Top-Secret Strategy that the North defense appeals for public access to classified information was despicable "graymail". Church elaborated that, "North's strategy, it seems, is to threaten to disclose embarrassing secrets if the Government will not drop the trial. In the bitter words of Robin Ross, chief aide to Attorney General Thornburgh, 'This great American hero is graymailing the Government. This is the guy who stood up in his Marine Corps uniform and all his medals, and now he is sticking it to the Government with an advantage (knowledge of secrets) he got through service to his country.'"
What about spies for foreign countries like Russia? According to the case docket of FBI spy for Russia Robert Hanssen, the mainstream corporate press did not at any time file urgent briefs, even though the bulk of the evidence trafficked by Hanssen to be used against him in court would have been highly classified.
In the rarified world of elite mainstream corporate media, if a defendant like Oliver North attempts to introduce classified information as evidence, it is "graymail." If defendants Weissman and Rosen attempt to similarly force the revelation of classified information, possibly "outing" sources and methods used to protect the US against Israeli espionage, well that's simply freedom of the press. This double standard is unfortunate.
The stakes in the AIPAC espionage case could not be higher. The AIPAC espionage case, if it comes to trial, could redefine the role of lobbies, the mainstream press and think tanks operating in Washington, DC. It is not yet clear whether average Americans approve of Washington's hidden world of selective third party disclosure and trafficking in classified information. It is also not known whether selectively disclosed and leveraged classified information fed to the "free press" has played a wider, unknown role in promoting misguided war, wasteful military spending, and perpetuating the influence of the Israel lobby. The Washington Post's own Walter Pincus, who has been rather sloppy in bringing facts about the case to his readership, now gloats that the prosecution now has only two weeks to find effective substitutes for reams of classified transcripts. We must ask whether, thanks to the legal intervention of the elite mainstream corporate media, we will ever obtain the answers to dire and burning questions of public interest.