On August 4, 2005, Keith Weissman and Steven J. Rosen, two employees of AIPAC, were indicted for receiving classified information and then passing it along to reporters and to the officials of a foreign government, namely, the state of Israel. Up until a few weeks ago, their trial was set to commence this coming Monday, June 4. It has now been delayed, for the umpteenth time, to an unspecified date this fall.
The Sixth Amendment to our Constitution states that in “all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” But Weissman and Rosen have been dangling in legal limbo for nearly two years, and an end to their ordeal is not yet in sight. Much, if not almost all, of the delay can be laid at the feet of the prosecutors, who repeatedly have been caught unprepared by decisions of the court.
In the most recent instance, T.S. Ellis III, one of the most thoughtful and scholarly judges sitting on the federal bench, rejected the prosecution’s proposal for handling classified evidence during the trial, which would have required all participants in the courtroom (save the public) to talk about it using a complex code. Among other criticisms leveled by Ellis was that this “would make it virtually impossible for defendants to conduct effective cross-examination of witnesses.”
Ellis also noted that while the government was arguing that the national-defense information at issue was too sensitive to reveal, under the prosecution’s proposed scheme, “the government’s asserted overriding interest [in preserving secrecy] is not treated as such by the government itself,” given that the national-defense information at issue would have been disclosed both to jurors lacking security clearances and to other witnesses.
The prosecutors, having had their proposal—preposterously flawed on its face—tossed out for its “fatal” defects, were thus forced to go back to agencies of the U.S. government to figure out some other way of handling the secret information that lies at the core of the case.
Much of this material is apparently now to be declassified, which will consume yet more time, and which further calls into question the prosecutors’ previous insistence that disclosure of the information would be damaging to national security.
Meanwhile, both of the defendants are out of work and must live under humiliating restrictions, like the requirement that they get permission from the judge if they want to leave the environs of Washington, D.C. AIPAC itself, threatened by prosecutors wielding the now discredited and partially withdrawn Thompson memorandum, fired both men and has declined to pay their legal bills. One of the defendants has children in college to support, the other is in ill health. Two years of their lives have already effectively been taken from them.
I am on record strongly favoring the prosecution of leakers of classified information, and in certain circumstances specified by unambiguous black-letter law, I also favor the prosecution of recipients of such leaks. But the facts in this instance suggest something else entirely, namely that it is not leakers and/or their accomplices but the prosecutors themselves who are running amok.
Even as the Department of Justice ignores a number of leaks that have severely compromised our national security, it has been using a novel interpretation of a notoriously vague statute to hound two men for behavior that, at worst, was imprudent, and at best is something that is pervasive in the corridors of Washington.
Although ostensibly presumed innocent until proven guilty, Weissman and Rosen have already been punished in multiple ways and been made to serve hard time for a crime that has not yet gone to trial.