The AIPAC Prosecution Suffers A Crippling Blow

images5.thumbnail.jpegMost of you know about the AIPAC criminal case that has been simmering below the main media radar since it was filed in May, 2005. In a nutshell, the indictment alleges that Lawrence Franklin, a DOD/Pentagon official working in Defense Secretary Rumsfeld’s office (with everyone’s favorite public servants Doug Feith and Paul Wolfowitz), passed top-secret information relating to Iran and Iraq to Steve Rosen, AIPAC’s then-policy director, and Keith Weissman, a senior Iran analyst with AIPAC. Franklin pled guilty and was sentenced in January, 2006.

In the three, count em three, years since Franklin’s plea, the government has pressed on with the prosecution of Franklin’s co-defendants Rosen and Weissman. That may be nearing an end though with a critical decision issued by the trial judge in the case, Judge Thomas Ellis of the Eastern District of Virginia (EDVA) on February 17. The opinion is not only important for the AIPAC case, but for many, if not all, of the secrecy cases that are currently in play in Federal courts across the country.

A little background is in order. The defendants, Rosen and Weissman, sought to introduce the expert testimony of Bill Leonard, a retired United States government official with substantial experience and expertise in the field of information classification, as part of their defense at trial. Leonard, who retired last year, was formerly the director of the government’s Information Security Office responsible for oversight of the entire U.S. classification system.

Leonard, from all appearances, was willing to testify, however, fearing prosecution himself, he insisted on a subpoena and then personally moved to quash the subpoena on the ground that his testimony might be barred by 18 USC 207, which restricts the activities of former executive branch officers and employees. The government, not wanting to be crucified by their own former guy, through the Department of Justice joined in Leonard’s motion to quash. Defendants Rosen and Weissman’s attorneys, obviously, opposed the motion to quash and argued that section 207 did not preclude Leonard’s testimony, and asserted that the court should enter an order directing Leonard to give said testimony at trial. Effectively, Leonard was seeking cover from the court so he could not get jerked around by the government for being wiling to testify. Very smart move by a very smart man, especially since the Bush/Cheney DOJ prosecutors were threatening that he might be liable for up to a year in jail if he testified.

Judge Ellis roundly slapped down the government and gave Leonard the court’s blessing and order to testify as requested by the defense. But the more interesting, by far, portion of Ellis’s opinion is contained in the discussion portion. From the February 17 memorandum opinion:

It is apparent from the indictment’s allegations, the elements of the charged offenses, and the parties forecasted trial testimony that a major battleground at trial will be the parties’ dispute over whether the information defendants are alleged to have obtained and disclosed in each of the various episodes qualifies as NDI (National Defense Information)….. This dispute will be expressed at trial largely through the testimony of competing experts. And it is clear from the parties’ forecasts of their experts’ trial testimony that this NDI dispute will be a major focus of the trial.

In such a prosecution, evidence that information is classified does not, by itself, establish that the information is NDI; evidence that information is classified is, at most, evidence that the government intended that the designated information be closely held. Yet, evidence that information is classified is not conclusive on this point; it is open to a defendant to show that the government in fact fails in the attempt to hold information closely because, for example, the information was leaked or was otherwise in the public domain. Further, the government’s classification decision is inadmissible hearsay on the second prong of the NDI definition, namely whether unauthorized disclosure might potentially damage the United States or aid and enemy of the United States.

Now the interesting thing here is that the court is accepting that classified information, whether or not it ought to be classified, and whether or not it will necessarily harm the United States if made public, is not the exclusive domain of the Executive, but may be intruded upon by the court. That is pretty important to a lot of cases currently being litigated (and routinely discussed on this blog) including, but not limited to, al-Haramain and the consolidated wiretapping cases in front of Judge Vaughn Walker in NDCA and Binyam Mohamed v Jeppesen DataPlan. Without specifying to what degree, the court even intimates that some part of the decision may ultimately be made by the jury.

You know, from a logic perspective this is not all that earth shattering, but from a legal perspective,it is pretty eye opening and sure does poke an eye in the spirit of the Bush/Ceney, and now Obama, theory that the "executive is everything on classification". It is a shame the memorandum opinion isn’t usable as precedent particularly, but it is bound to make the rounds of knowledge among judges and litigants. In fact, it wouldn’t be surprising if a copy anonymously got delivered to Vaughn Walker’s and Mary Scroeder’s chambers. Here is what Steve Aftergood had to say:

More than almost any other litigation in memory, the AIPAC case has placed the secrecy system itself on trial. In Freedom of Information Act lawsuits and other legal disputes, courts routinely defer to executive branch officials on matters of classification. If an agency head says that certain information is classified, courts will almost never overturn such a determination, no matter how dubious or illogical it may appear to a third party.

But in this case, it is a jury that will decide whether or not the information in question “might potentially damage the United States or aid an enemy of the United States.” Far from granting automatic deference on this question, Judge Ellis wrote that “the government’s classification decision is inadmissible hearsay”!

Yep.

The other interesting portion of Judge Ellis’ discussion involved the superlative credentials of Bill Leonard. Ellis clearly understands that Leonard is basically the whole ball of wax in the case for Defendants Rosen and Weissman and their desired acquittal, and he so indicates. But, in so doing, Ellis makes sure to clearly prick the government by delineating some of Leonard’s dead on criticisms of the government’s classification abuses:

It remains to review briefly defendants’ forecast of Leonard’s trial testimony. Understandably characterizing Leonard’s experience and expertise as "unsurpassed", defendants, by counsel, advise that Leonard has examined the alleged NDI and classified and unclassified documents in this case and is prepared to offer testimony, inter alia, in general, as follows:

1. A description of the classification practices and procedures of the government, including the (in his opinion) pervasive practice of over-classification of information, namely the practice of classifying information that is neither closely held, nor damaging to the national security if disclosed;

2. A description of the "back channel practice", i.e. the practice of high-level officials disclosing classified information to unauthorized persons (e.g. journalists and lobbyists) for the purpose of advancing national security interests;

3. His opinions as to whether the alleged NDI in this case qualifies as such, namely whether the information allege to be NDI was (i) closely held by the government and (ii) would be potentially damaging to the United States or helpful to an enemy of the United States if disclosed to an unauthorized person; and

4. Whether, in the circumstances of this case, the defendants reasonably could have believed that their conduct was lawful.

Given Leonard’s work experience and professional qualifications, it is not surprising that defendants consider him their "most important and irreplaceable" witness. (Emphasis added)

Ouch. Bill Leonard thinks that what went on in the Bush/Cheney Administration in terms of over-classification and secrecy is a bunch of bull, and he is going to take them to the woodshed on it. And he isn’t real crazy about their selectively leaking of classified information to help themselves and punish others either. Most significantly, he is ready, willing and able to take the stand and say so under oath. Booyah!

As Judge Ellis noted, the case has already been reduced to effectively a battle of experts on multiple elements that will determine whether or not there is reasonable doubt. That is never good for the prosecution in a technical criminal case – jurors eyes and attention just glaze over and that is that, and all it takes for reasonable doubt. Here, however, there is then the additional factor that when the foundation is laid for Leonard’s testimony, by going over his curriculum vitae, well it’s over. It will be a battle of midgets v. a giant; the Michael Jordan of classification experts. And the best part, when the government tries to paint him as just a defense schlub, the defense attorneys will just go back over Leonard’s goverment credentials again and then whip out the fact that Leonard actually fought appearing and testifying, and had to be forced in by subpoena and court order to do so. Then he unloads with his criticism and testimony against the government’s acts in this case, and their practices in general. Again, here is Steve Aftergood’s similar take on the meaning of Judge Ellis’ decision on February 17:

In other words, the prosecution probably just lost this case.

That is exactly right. Game. Set. Match.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

136 replies
  1. emptywheel says:

    I’ve got mixed feelings about this.

    There was enough smoke there to lead me to believe there is at least some fire there–and that AIPAC is using back channels to direct US policy.

    At the same time, in light of the Judy Miller/Bob Woodward A1 cutout approach, I don’t see how you prosecute that (especially prosecute American citisens) as spying.

    Also since this is the statute that the government envisions to use against journalists, this will make it a lot harder to prosecute journalist’ sources. In fact, IIRC, the James Risen source case is in EDVA, so this will directly impact that case. As it will impact a lot of leak cases, since CIA cases are usually take in EDVA.

    • WilliamOckham says:

      No mixed feelings here. This is exactly the right outcome. The question is not whether or not you approve of what Rosen and Weissman were doing (I don’t), but whether or not you can call what they did spying. It wasn’t and Bill Leonard knows that. The only problem I have is that Franklin went down for this instead of his machinations with Ghorbanifar. et. al.

      • emptywheel says:

        I look on it differently: I suspect that Rosen and Weissman WERE spying, but Franklin’s dealings were just one way to get to that. An improper prosecutorial approach, definitely. But how do you get at the (potential) spying that did take place in the background here?

          • emptywheel says:

            Damnit.

            I never get to have any fun.

            Ah well. I guess we’ll start with the over-classification and potentially a legal precedent for challenging classification in court. Why be greedy.

          • Leen says:

            Who determines that those particular classified documents that Rosen/Weissman allegedly handed over to Israeli officials (who will not be or have refused to testify) were OVER CLASSIFIED? I get the gist of how the Bush administration classified..over classified…declassified at will. But how does anyone know that these particular documents were OVER CLASSIFIED?

            I am with Klynn will the issue of whether Aipac will be required to register under the Foreign Agents Registration Act? Open their books and funders?

            http://www.usdoj.gov/criminal/fara/

            Senator Fulbright was one of the last Senators to challenge Aipac
            http://www.antiwar.com/orig/gs…..leid=11727
            Where Did AIPAC Come From?
            by Grant F. Smith

            The following is an excerpt from Foreign Agents: The American Israel Public Affairs Committee From the 1963 Fulbright Hearings to the 2005 Espionage Scandal.

            AIPAC was founded by Isaiah L. “Si” Kenen, springing from the American Zionist Committee for Public Affairs. Kenen registered twice with the U.S. Department of Justice under the Foreign Agent Registration Act (FARA) as a foreign agent for Israel.[i] On April 21, 1947 he registered as an agent of the American Section of the Jewish Agency for Israel.[ii] Si Kenen also registered at FARA as an agent for the “Israel Information Services” on October 12, 1948 through May 13, 1951.[iii] Kenen changed the committee’s name from the American Zionist Committee for Public Affairs to the American Israel Public Affairs Committee in 1959, to better reflect that it, according to him, “raised its funds from both Zionists and non-Zionists.”[iv] Kenen’s emphasis on a low-key, uncontroversial, and even non-descriptive organization name continued after his departure when AIPAC spawned a network of obliquely named political action committees (PACs) across the United States designed to sway the results of key elections. From a historical perspective, all of the lessons Kenen learned running the American Zionist Council with funds and guidance from the Israeli government are part of AIPAC’s “institutional DNA.” It is impossible to understand AIPAC without understanding its precursor, the American Zionist Council.

              • plunger says:

                Then why are you here commenting?

                Never mind. That question answers itself.

                “nothing to see here – move along.”

                • plunger says:

                  DEPORT AIPAC – A NEST OF SPIES WITH TAX EXEMPT STATUS:

                  Dual agendas
                  The Israeli government and AIPAC have denied that they engaged in any criminal operations involving classified Pentagon documents about Iran. Sharansky said, “There are absolutely no attempts to involve any member of the Jewish community and any general American citizens to spy for Israel against the United States.” He observed that the investigation of the Pentagon’s Office of Policy staff most likely stemmed from an inter-agency rivalry within the US government.

                  For his part, Ledeen told Newsweek that the espionage allegations against Franklin, his close friend, were “nonsensical:’ Ledeen and other neoconservatives see the investigations as instigated by the State Department and the CIA to undermine the credibility of neoconservatives and to obstruct their Middle East restructuring agenda, particularly regime change in Iran.

                  Given the depth of congressional bipartisan support for Israel and close ties with right-wing Israeli lobbying groups like AIPAC, it’s unlikely that the investigations will provide the much-needed public scrutiny of the dual and complementary agendas that unite US and Israeli hardliners. Feith’s policymaking fiefdom inside and outside of government continues to drive US policy in the Middle East with no evidence that these radical policies are increasing the national security and welfare of either the United States or Israel.

                  http://www.thirdworldtraveler……_Next.html

                • macaquerman says:

                  Leen, I was trying to indicate that knowing AIPAC’s efforts and effects was sufficient to determine how best to regard it. One needn’t always scrutinize the contents of a bed pan in my experience.

                  • Leen says:

                    Sorry but somehow I do not see how the contents of a bed pan (or the contents of hotdogs) influences U.S. foreign policy in the middle east.

                    Aipac needs to register under the Foreign Agents Registration Act.
                    http://www.usdoj.gov/criminal/fara/
                    “”The tension between the Eisenhower administration and Israeli supporters was so acute that there were rumors (unfounded as it turned out) that the administration would investigate the American Zionist Council. Therefore, an independent lobbying group was formed within the auspices of the American Zionist Committee.” [viii]

                    http://www.antiwar.com/orig/gs…..leid=11727
                    AIPAC’s original internal codename in the American Zionist Committee was “the Kenen Committee.” Its results have been unparalleled in the history of foreign lobbying. An AIPAC obituary declared that the State Department strenuously opposed Kenen’s earliest lobbying efforts. The indefatigable Kenen worked members of Congress and obtained initial approval of $15 million in aid to Israel, despite robust State Department opposition. This early success set AIPAC’s strategy of seeking aid to Israel not on the basis of merit, presidential administration prerogative as the maker of foreign policy, or broad State Department initiatives, but through fake grassroots efforts financed by foreign funds from Israel to “prime the American pump.” The Israel lobbying campaign for favorable public relations and media coverage included strategically directed gifts and grants to U.S. colleges and universities for new Israel-centric “Middle East Studies” departments and unfettered lobbying with tax-exempt funds recycled from overseas into the U.S. political system. Activity reports from this intensive campaign are documented in the first chapter.”
                    ————————————————————-
                    In 1962, Senator Fulbright became concerned about the activities of unregistered foreign agents working to influence public opinion and policy in the United States. His interest was piqued by a pair of articles authored by journalist Walter Pincus and Douglass Cater. Their reporting detailed U.S. -backed Dominican Republic dictator Rafael Trujillo’s attempts to use U.S. media for public relations. They also uncovered the Guatemalan regime’s covert purchase of friendly coverage in the American Mercury, a magazine founded by H.L. Mencken in 1924.[x]

                    Fulbright offered Walter Pincus a temporary research assignment investigating the scope and breadth of the U.S. activities of unregistered foreign agents. Pincus worked as staff director of the two-member investigatory subcommittee, bringing on staff counsel Charles P. Sifton (now a senior federal judge in Brooklyn).[xi] Pincus duly documented Trujillo’s efforts to influence Kennedy administration sugar policies and other Latin American foreign agency issues through a series of overseas fact-finding trips. However, the Fulbright hearings were not at all limited to Latin America. They investigated ten lobbying groups suggested by Pincus that paralleled his news reports including China, West Germany, and Ghana.[xii] The investigators also subpoenaed documents, developed evidence, and called witnesses from important and highly active Zionist organizations in the United States that were established and given seed money by Israeli-government-related entities. Fulbright focused on the central funding role of the Jewish Agency in Jerusalem and New York, Israeli government propaganda and ownership of the Jewish Telegraphic Agency, and funding for publications including the Near East Report and Israel Digest. The investigation also studied the conduits and internal financial operations of the American Zionist Council, Si Kenen, and AIPAC.

                    Fulbright held these 1963 Senate Foreign Relations Committee

                    • macaquerman says:

                      I apologize for arrogantly assuming that I could make clear to you how I regard AIPAC. The vanity of my strivings has instead become manifest.

                    • Leen says:

                      I am a lay person trying to understand why our government treats one lobbying group differently than other lobbying groups. If a Polish, French, Japanese lobbying group’s officials had passed on classified intelligence to officials from that country would this investigation and trial be out in the spotlight?

                      If the use of that classified intelligence by officials from another country influenced in any way our leaders decisions as to invading or not invading another country, or how we respond in any way….the spotlight should be on this issue. The truth should be known

        • WilliamOckham says:

          Let me clarify. I agree that they were spying in the plain meaning of the term. I don’t think that what they did meets the definition of espionage under the law. If what they were doing was illegal, then we can round up almost every lobbying firm on K street, not to mention 60-75% of the Bush administration’s political appointees. Ok, if we would really do that, I might be persuaded, but otherwise this is just an improper use of prosecutorial discretion.

          • emptywheel says:

            Well, I think there might be underlying spying according to the law stuff–probably from Naor Gilon–that they were trying to get to.

            But that said, THIS activity does not count.

          • Leen says:

            So everyone on K street ask for and passes on classified intelligence about Iran onto Israeli officials? This everybody does it just does not fly with this lay person

    • brendanx says:

      …that AIPAC is using back channels to direct US policy.

      Could you clarify this? It sounds more like a description of influence than espionage.

      • macaquerman says:

        When the purpose is to use the influence to further the interests of another government, rather than the interests of the government being influenced, and in a stealthy manner, would that be espionage? Or simply subversion? Or both?

      • emptywheel says:

        It is influence.

        But if we were to catch them stealing information, say by hacking our computers, paying Franklin, or blackmailing key figures, then it would be spying.

        Plus, the key is that AIPAC operates in a legal grey area; unlike most equivalent group, there’s space for US citizens to give up our secrets. But that’s why I said the real object here was Naor Gilon, who is not a citizen.

        • cinnamonape says:

          Isn’t “influence”, when it results in the unnecessary risk of death to US military personnel or damage to military hardware or installations….sabotage…if that is done for the benefit of a foreign state or organization? It’s probably sabotage if a domestic organization did this, as well…but let’s skip on that.

          If Israel subverted normal channels in obtaining classified information and in influencing US military actions that could kill US personnel then they are, in fact, not behaving like an Ally, but an enemy.

          • macaquerman says:

            It’s probably pretty unusual for two countries’ security interests to be identical for any length of tme, and there’s pobably a whole lot of gradation between ally and enemy.

      • Leen says:

        If a Polish lobbying group had passed on classified intelligence (that would be used to push a war with Iran) to Polish officials would it be so complex? Would the MSM completely ignore the investigation and trial? Hell no

        • macaquerman says:

          Perhaps you remember that officials in the DoD were giving sensitive information to a guy named Chalibi and that Chalibi was transmitting that information to Iran.
          Do you remember any big investigations or highly publisized trials coming out of that?

          There was a large effort, both before and throughout the duration of WWII, by England both to collect secret intelligence and to influence US policy into the direction of preserving their control over their colonies.

          • Leen says:

            Chalabi should be nailed. Just because England has done this and Israel has been doing it for 50 some years should we just roll over and accept it? Hell no.

            Macaquerman not sure but it sure seems like you are saying what Rosen and Weissman did which many consider spying is acceptable in your book

            Aipac should be required to register under the Foreign Agents Registration Act
            http://www.usdoj.gov/criminal/fara/

            • macaquerman says:

              For the third time, Leen. I guess that comparing AIPAC to indigestible sausage was a bit arcane. Comparing them to the contents of a bed pan, I was sure was clear.
              I FUCKIN HATE THEM. I hope that they are treated as very bad people. I don;t excuse their anything.
              PLEASE tell me if this is understood.

              • Leen says:

                I don’t hate them…just do not like their methods and hope they are forced to register under the Foreign Agents Registration Act. Not sure then why you brought up what England had done and what Chalabi has gotten away with.

                sure sounded as if you were making excuses by bringing up others who have gotten away with undermining U.S. national Security

                • macaquerman says:

                  I brought up what other countries have done because of your question about what would happen if other countries had agens acting inappropriately. U beleive that you last mentioned Poland.
                  I was trying to tell you that this kind of thing has indeed happened before and is oftened handled very, very quietly.

                  I do hate them and can see no reason why you wouldn’t have understood.
                  I spent a year once cleaning bed pans. I would guess tht you never had that pleasure.

                  • Leen says:

                    Get it. Sure think that the American public should be fully aware of this investigation and trial. should not be handled quietly

  2. JimWhite says:

    In fact, it wouldn’t be surprising if a copy anonymously got delivered to Vaughn Walker’s and Mary Scroeder’s chambers.

    Heh. bmaz must have one of those fancy fax machines that blocks its phone number from appearing…

  3. phred says:

    Thanks for the cheery post bmaz — a great start to the day!

    EW, I agree with your discomfort about the influence of AIPAC, but given the insidious abuses of classification, I am happy to see the AIPAC guys skate, if it means that we can begin the process of restoring our system of classification to its proper role of protecting genuine secrets rather than manipulating the public (both via leaks to make some things public and hiding embarrassing information to keep other things from public view).

    • bmaz says:

      Yeah, I am kind of with Marcy on that; I think the prospects here cut both ways. I am relatively neutral on the case itself in that, while i like the inordinate secrecy and over-classification getting hammered to hell like it should, AIPAC has some rather pernicious characteristics that are far too involved in American policy and government. In short, my enthusiasm here is for Bill Leonard and his takedown of Bush/Cheney (and, apparently, Obama to some extent at least) over-classification/secrecy and concealment of government malfeasance thereby. The latter I am very enthusiastic about.

  4. NCDem says:

    Far from granting automatic deference on this question, Judge Ellis wrote that “the government’s classification decision is inadmissible hearsay”!

    In other words the emperor has no clothes.

    The thought of Dick Cheney standing up in front of the US and Judge Ellis without clothes is disgusting. He would look much better dressed in orange.

  5. maeme says:

    Let’s hope Leonard makes it to the courtroom. Way too many have not, and suddenly been in an accident of some sort or even run off the road while driving. I am not usually this cynical, but there is that possibility that lingers with the B&C Crime Family.

  6. klynn says:

    …namely whether unauthorized disclosure might potentially damage the United States or aid and enemy of the United States.

    I would have added:

    “or an ally with concerning self-national interests which could pose a threat to the protection of the United States.”

    IANAL but bmaz, doesn’t this wording require the AIPAC folks to prove they do not aid an enemy of the United States or that this “process” of receiving “information” (classified or not) does not pose a threat?

    I see the possibility of this also pushing their classification as a lobby group and have to prove they are a domestic lobby and not a foreign agent.

    Under American law, registering as a foreign agent would require Aipac to provide significantly more detailed information about its aims and activities to the government – thereby robbing the group of a key weapon: the ability to operate behind the scenes.

    I think AIPAC is going to have to answer and prove this in court. Even though everyone is screaming this will be an acquittal with this ruling, I think maybe not and/or at the very least, a change in AIPAC’s lobby status to foreign agent.

    Again, IANAL. But this could play out to be a win-win by Judge Ellis.

    • klynn says:

      Furthermore, with Ellis’ wording won’t Rosen and Weissman be required by the court to prove they are not foreign agents themselves and will not AIPAC need to prove they do not employ foreign agents?

    • bmaz says:

      IANAL but bmaz, doesn’t this wording require the AIPAC folks to prove they do not aid an enemy of the United States or that this “process” of receiving “information” (classified or not) does not pose a threat?

      Um, let me be very clear – NO

      In a criminal prosecution, the defendant has the presumption of innocence on every element of the crime. It is the government’s burden of proof, not the defendant’s.

      • klynn says:

        Well, that’s a bit of info our government would never let out.

        It would be great if we did let it out — what we know about them as agents…Too bad the “turning the classification process on it’s head” by Leonard would not benefit the government’s burden of proof.

  7. klynn says:

    A little OT but of related interest:

    I thought this was interesting when i read it back in November of 2008.

    Declassified US Department of Justice (DOJ) files about AIPAC founder Isaiah L. Kenen are now online at http://www.IRmep.org/ila/Kenen
    Six decades ago Americans working as registered Israeli foreign agents launched New York, Washington and Los Angeles “Israel Office of Information (IOI)” branches. Newly declassified records document IOI actions that forever changed foreign government lobbying on Capitol Hill. The 1938 Foreign Agents Registration Act (FARA) was strictly enforced at that time to shield the US Congress and American citizens from the effects of foreign propaganda and stealth lobbying. FARA required biannual disclosure of all propaganda activities on behalf of foreign principals to the DOJ. Beleaguered by reporting requirements and citations for deficient declarations, IOI director Isaiah L. Kenen coordinated shifting Israel lobbying away from FARA oversight…

  8. plunger says:

    They were absolutely spying. It’s called espionage, and treason.

    http://www.newsfollowup.com/index_b.htm

    The odds that blackmail is involved in letting them go free are approximately 100%.

    http://oxdown.firedoglake.com/diary/3820

    No different than Pollard. No different than the 200 “Israeli Art Students.” No different than Aeriel Joseph Weinmann, the US submariner whom you’ve not likely even heard of, thanks to the media blackout of his arrest.

    Israel is the only country in the world that can infiltrate the US with spies, without consequence.

  9. Peterr says:

    From the description of the forecasted testimony:

    2. A description of the “back channel practice”, i.e. the practice of high-level officials disclosing classified information to unauthorized persons (e.g. journalists and lobbyists) for the purpose of advancing national security interests;

    Sounds to me as if Leonard’s attorneys will be taking a page out of Fitz’s work at the Libby trial. They may not be able to call Russert to the stand, but they can introduce his sworn testimony in that case quite easily. “Here’s the standard procedure, as described under oath by the head of the NBC News DC bureau at the time in question here, the late Tim Russert . . .”

  10. rkilowatt says:

    “…and (ii) would be potentially damaging to the United States or helpful to an enemy of the United States…”

    And why wasn’t this highlighted? It’s the coup-de-loophole for tyranny.

  11. rkilowatt says:

    Back to basics:
    In a coup d’etat, if it succeeds, any investigation is controlled by the new government.

    Likewise with acts by government officials that otherwise might be criminal, such as espionage. Acts of espionage can be controlled; merely shift the status of person from “lobbyist” to government cover official.

    C’mon, an old technique to free a criminal is to “throw” the trial…in a million ways from deliberate judicial error to deliberate manipulation of data and persons…even a person’s loved ones.

    The criminal escaped? I’m shocked! I tell you I’m shocked!

  12. Twain says:

    If you are giving classified info to anyone, in my book that’s treason and I don’t care who’s doing or the legal stuff – it’s treason and should be treated as such.

  13. klynn says:

    Ellis’ wording of points 3 & 4 keep me coming back and rereading.

    4. Whether, in the circumstances of this case, the defendants reasonably could have believed that their conduct was lawful.

    EW,

    You are so good at dissecting language. Do you see something here that we may be missing in terms of the judge’s intent?

    I am puzzled why I keep coming back to the wording of those two points.

    Probably nothing there.

  14. bmaz says:

    I don’t think those numbered items are written by the judge, but instead are excerpted from an affidavit, offer of proof or some other modality supplied by the defense. In fairness, the judge lends them a lot of emphasis and significance by citing them as he did; but as far as I can tell, he at best adopted them for the purpose they are delineated, he did not author them.

    • klynn says:

      So there is no import or emphasis to note on behalf of the judge on those points?

      This comment by Juan Cole regarding Franklin keeps coming to mind when I read the fourth point.

      Franklin did succeed in giving a confidential draft presidential directive on Iran to AIPAC officials, who then passed it to someone at the Israeli Embassy, perhaps Gilon. It is telling that the official took hard copy from AIPAC, presumably because he trusted them implicitly, whereas Gilon had rejected it from Franklin.

      (my bold)

      Won’t the government be able to use this point to make the point they are “more than” lobbyist or in the words the judge emphasized…”in the circumstances of this case, the defendants reasonably could have believed that their conduct was lawful. More accurately stated, unlawful?

      Cole then has this quote:

      Israeli government officials and people like Dennis Ross at the AIPAC-funded “Washington Institute for Near East Policy” keep saying that this case makes no sense, since if Israel wanted to know something about US policy toward Iran, they could just make a call. This line of defense doesn’t really help, though, since it suggests that there are no US government secrets to which Israel would be denied access on a simple request. That is an impossible proposition, and if it were true then it really would be the case that AIPAC runs the US government.

      The points 3 & 4 are just bugging me and I cannot nail down why…

      Thanks for the clarification at 38.

      • bmaz says:

        I didn’t say there was no significance, I said he did not write them from all appearances. But, as I belive that the points come verbatim from the defense, thinking that they are there to exhibit criminality is a bit of a stretch.

  15. klynn says:

    bmaz (and possibly EW),

    But in this case, it is a jury that will decide whether or not the information in question “might potentially damage the United States or aid an enemy of the United States.” Far from granting automatic deference on this question, Judge Ellis wrote that “the government’s classification decision is inadmissible hearsay

    ”!

    So, if this is the case, is it possible the jury will hear or see information that relates to the outing of Plame?

    • LabDancer says:

      The opinion from the judge is narrow on this point: the government’s choice of classification is only inadmissible hearsay on the “second prong of the test” [see page 6, lines 9 through 12].

      Moreover, while it’s true that the outcome of the government’s exercise of discretion in classifying information is irrelevant to the issue of whether such information is PROPERLY so classified, a defendant’s knowledge of how the government has classified such information bears some relevance as to the defendant’s intentions in handling that information.

      • klynn says:

        Moreover, while it’s true that the outcome of the government’s exercise of discretion in classifying information is irrelevant to the issue of whether such information is PROPERLY so classified, a defendant’s knowledge of how the government has classified such information bears some relevance as to the defendant’s intentions in handling that information.

        (my bold)

        That’s an interesting insight in terms of intent.

        • LabDancer says:

          Not sure in what sense you mean “interesting”. It’s certainly what the memorandum of opinion aims at — & it’s completely consistent with the theory of conspiracy as a criminal ‘act’.

          Bear in mind that conspiracy is regarded as an ‘inchoate’ crime, as distinct from, say, actually holding up a bank [I mean, like in the olden days, when banks had money; meh: I should probably plan on dumping this as an analogy.] The distinction can get muddied by the fact that the government overwhelmingly tends to throw a conspiracy count in with other ’substantive’ counts, the idea being that the commission of one or more ’substantive’ acts to further the ends of the conspiracy serves to help prove the existence of the alleged conspiracy, & who all conspired to those ends. It’s not strictly necessary in law, but rather simply sound practical management of a conspiracy charge, to proceed on to try to prove a conspiracy count by proving that one or more of the defendants did inherently, free-standing illegal things that at the same time appear to advance on the goals of the plan.

          But again: the fact that so often the government proceeds to try to prove its case by those means does not mean such means are necessary to prove in support of the conspiracy count. Thus, the government could proceed to try to prove the count by showing that once the defendants arrived at their agreement on their goals, they then proceeded to take a number of steps none of which were inherently illegal on a free-standing basis, yet nonetheless are consistent with & moreover might be relied on by the jury to prove the existence of an agreement to break the law. Think of Tim McVeigh off to buy fertilizer.

          • klynn says:

            There was no nuance with the word “interesting”. No hidden meaning or snark intended. Your explanation was simply interesting to me as I try to bring all this information together.

            Thanks for your response.

  16. LabDancer says:

    Secret Steve Aftergood’s post makes the point, but it’s worth emphasizing: the government [at the material time under the Bush-Cheney administration] acted out of unmistakably cynical motives in attempting to “disable” Leonard from being called as a witness by the defendants. It must be this view of the government’s behavior in relation to the prospect of the jury hearing from Leonard that’s behind Secret Steve’s forecast for the outcome of the trial.

    I say that because the issue of whether or not the classified information in question qualifies as DNI technically only disposes of one of the two charges these defendants are facing. Even if the jury decides against the government on the issue of whether the classified information qualifies as DNI, it remains for the jury to assess evidence relevant to the intention of the two defendants in their dealings with Franklin in relation to the other count [the one the court refers to as Count I] of conspiracy.

    To be clear, the issue of intention remains paramount in the context of a conspiracy charge such as this, even over the issue as to whether particular pieces of classified information should properly be determined as technically DNI in light of their being “leaked” to the defendant lobbyists by a US government employee. That is: if the defendants effectively agreed with Franklin to communicate DNI, it’s not a complete answer in defense, but simply a factor in considering the strength of the government’s case, that all they actually ended up communicating turns out to have been apparent but technically not actual DNI.

    On the one hand, technically it doesn’t assist the government’s case on the conspiracy count that Franklin entered a guilty plea on the conspiracy count — but if the jury to find that out [and somehow they always seem to], even in the face of a specific direction from the judge that they must disregard that guilty plea in deliberations on the guilt or innocence of these two defendants, there is always a concern about the psychological effects.

    Aftergood appears to be assessing that the government’s post [alleged] offence behavior is sufficiently egregious to overcome the extent to which such effects might work against these defendants [though he may also be basing his prediction in some part on more knowledge of the particular players in this case than is publicly apparent].

    Thus Aftergood is predicting [”probably”] what in my experience is the wierdest single outcome of a conspiracy charge: that, notwithstanding a person cannot conspire with herself or himself, it is possible to determine on the evidence that Franklin conspired with one or both of Rosen & Weissman, but nonetheless the evidence is insufficient to determine that either Rosen or Weissman conspired with Franklin.

    This superficially paradoxical outcome is a function of the quite distinct way in which juries are directed by judges to assess evidence in counts alleging conspiracies. Understanding that superficial paradox is key to accepting to how it’s possible for Franklin to have been acting not just rationally but legally correctly in entering a guilty plea to a count which requires at least one co-conspirator where nonetheless not one of his alleged co-conspirators is found guilty.

    • plunger says:

      Huh?

      Gimme a break. A conspiracy of one is not a conspiracy. Franklin pled guilty to Count One – Conspiracy – because he was guilty of having been involved in one. What’s next,? They’re going to go back and free Franklin because he could not have been guilty of conspiracy? Is Franklin even actually in prison right now?

      Welcome to opposite world, where the Karl Rove is above the law – a king among mere mortals.

      • LabDancer says:

        Give yourself a break. There are lots of ways in which conspiracy can be provable as such against only one person.

          • LabDancer says:

            Hoo boy, did you ever rocket away from the point at hand. This sort of tactic seems endemic – a feature not a bug, as they say in toobztown.

            Tell you what I’m prepared to do: you deal with the point I made, and I’ll commit to politely prevailing on Fearless Leader to dedicate an open thread some day to your point here – one in which you’re free to wallow in unlimited bandwidth.

            • plunger says:

              I felt as though the point you made was about lawyers tactics and strategies, and how to get clients off the hook. That’s fine. You made your point.

              My point is about our country, and what it takes to regain control in the aftermath of the obvious coup that has occurred, the obvious espionage that has and is occurring, and is destroying everything about our way of life.

              I understand that the law provides for advocacy.

              It used to provide for hanging as the punishment for treason.

              Is Larry Franklin in prison?

              Will he ever be?

              • plunger says:

                May I politely ascertain whether anyone on this thread knows whether or not Mr. Franklin has ever served any of his 12 year sentence? Anyone got anything on that? Isn’t that an even bigger story than the AIPAC angle if he isn’t in prison?

    • bmaz says:

      Agreed. I don’t know Steve and therefore can’t guess as to his basis. As for mine, all I know is, well, what I know; and that is that if the defense gets Leonard in front of a jury, and he does what even the judge seems to believe he will do, that is gonna make it real tough for the jury to separate and convict on the suddenly naked conspiracy count. And, as you note, this is really only one aspect of the case. They have other defenses on elements too. And Leonard will make a nasty record against the government if he gets on the stand. I may be loopy, but if this ruling stands, I have an inkling that the government will punt the case. I’ll say this, I would not want to be the lead prosecutor trying this turd as it is now constituted. Would take a lot of alcohol at night.

  17. plunger says:

    Franklin will “remain free while the government continues with the wider case” and his “prison time could be sharply reduced in return for his help in prosecuting” former AIPAC members Steven J. Rosen and Keith Weissman, [who] are scheduled to go on trial in April [2006].” [3]

    “Franklin admitted that he met periodically with Rosen and Weissman between 2002 and 2004 and discussed classified information, including information about potential attacks on U.S. troops in Iraq. Rosen and Weissman would later share what they learned with reporters and Israeli officials.” [4]

    http://www.sourcewatch.org/ind…..y_Franklin

    He did indeed plead guilty to the three conspiracy counts on October 5, explaining that he had shared his frustrations over U.S. Iran policy with the other two defendants regularly in 2002 and later passed documents he knew were classified to them in the hope they could get them to employees of the National Security Council who might be able to help force a harder line. He also asked Rosen for help getting him a job at the NSC; Rosen told him, “I’ll see what I can do,” claimed Franklin.[12]

    He also passed other classified information along to an Israeli official concerning weapons testing and military activities in Iraq and other Middle Eastern countries. In return, he said, the Israeli official told him far more. Franklin stated that he knew some of the documents he passed along could be used to the detriment of U.S. national security interests.

    On January 20, 2006, Judge T.S. Ellis, III sentenced Franklin to 12 years and 7 months in prison sentence and a $10,000 fine for passing classified information to a pro-Israel lobby group and an Israeli diplomat.

    In August, he denied Weissman and Rosen’s motion to dismiss their indictment on the grounds that the government could still prosecute and punish those who retransmitted classified information regardless of whether they had a security clearance or not,[13] an interpretation of the Espionage Act that could have wide-reaching implications if it were allowed to become legal precedent.

    http://en.wikipedia.org/wiki/Keith_Weissman

    Has Franklin served any time in prison?

  18. Leen says:

    Thanks Bmaz
    There has been some discussion about this investigation and I believe 5 time delayed trial in the blogosphere but there has been almost a complete blackout in the MSM. I believe we think we know how the I lobby shuts down any information about this investigation and trial in our MSM but that does not make the black out acceptable.

    On Judge Ellis’s statment
    “4. Whether, in the circumstances of this case, the defendants reasonably could have believed that their conduct was lawful.”

    Seems like I have read somewhere that the F.B.I has Rosen on tape saying “sure glad that the U.S. has no official secrets act”
    http://www.fas.org/sgp/jud/aipac/index.html

  19. Leen says:

    Will we ever know what roles David Satterfield, Kenneth Pollack, Martin Indyk had in this espionage case?
    http://www.nogw.com/download/2…..ctment.pdf

    Understanding the content of “hotdogs”,certainly not important to me unless their content makes thousands of people ill. If the foreign policy of the nation I am a citizen of is pressured by a foreign nation in a disproportionate and harmful way…SHINE THE LIGHT

    Understanding how Aipac (any registered or unregistered foreign lobbying group) works would appear to be more critical
    http://www.wrmea.com/archives/…..09016.html
    Jewish leaders seem particularly worried that the FBI has learned so much about how the AIPAC juggernaut works: “There is a strange sense that when the two [Rosen and Weissman] are indicted, a lot of crap is going to come out, and it could have precocious implications for the institution,” said a Jewish communal leader with strong ties to AIPAC, as quoted in the newspaper Forward.

    Steve Rosen was a dominant figure in AIPAC, which used to limit its lobbying to Congress. Under Rosen, however, AIPAC achieved real success in penetrating the White House and the Department of State as well. Perhaps its very success led President Bush to launch the FBI’s careful investigation of AIPAC.

    The American citizenry is basically in the dark in regard to this investigation.
    “The right to
    free speech and
    the value of an
    informed citizenry
    is not absolute
    and must yield to
    the government’s
    legitimate efforts
    to ensure the
    environment of
    physical security
    which a functioning
    democracy requires.”
    –Judge T.S. Ellis III

    Shine the light on lobbyist and how they operate especially one as powerful as Aipac

    Steven Rosen “A lobby is like a night flower: it thrives in the dark and dies in the sun.”

    “The New Yorker, July 4, 2005
    [Read this article at The New Yorker’s website]

    Several years ago, I had dinner at Galileo, a Washington restaurant, with Steven Rosen, who was then the director of foreign-policy issues at the American Israel Public Affairs Committee. The group, which is better known by its acronym, aipac, lobbies for Israel’s financial and physical security. Like many lobbyists, Rosen cultivated reporters, hoping to influence their writing while keeping his name out of print. He is a voluble man, and liked to demonstrate his erudition and dispense aphorisms. One that he often repeated could serve as the credo of K Street, the Rodeo Drive of Washington’s influence industry: “A lobby is like a night flower: it thrives in the dark and dies in the sun.”

    Lobbyists tend to believe that legislators are susceptible to persuasion in ways that executive-branch bureaucrats are not, and before Rosen came to aipac, in 1982 (he had been at the rand Corporation, the defense-oriented think tank), the group focussed mainly on Congress. But Rosen arrived brandishing a new idea: that the organization could influence the outcome of policy disputes within the executive branch-in particular, the Pentagon, the State Department, and the National Security Council.”

  20. Jkat says:

    ah luvz it .. “the gub’mints’ claims is heresay” ..

    dammmmmm .. that is a true kick to the balls halls of gub’mint ..

  21. plunger says:

    Make no mistake, Franklin’s actions were in furtherance of Israel’s goal to nuke Iran.

    Ledeen’s ideas are repeated daily by such figures as Richard Cheney, Donald Rumsfeld and Paul Wolfowitz. His views virtually define the stark departure from American foreign policy philosophy that existed before the tragedy of Sept. 11, 2001. He basically believes that violence in the service of the spread of democracy is America’s manifest destiny. Consequently, he has become the philosophical legitimator of the American occupation of Iraq.

    Now Michael Ledeen is calling for regime change beyond Iraq. In an address entitled “Time to Focus on Iran — The Mother of Modern Terrorism,” for the policy forum of the Jewish Institute for National Security Affairs (JINSA) on April 30, he declared, “the time for diplomacy is at an end; it is time for a free Iran, free Syria and free Lebanon.”

    With a group of other conservatives, Ledeen recently set up the Center for Democracy in Iran (CDI), an action group focusing on producing regime change in Iran.

    Quotes from Ledeen’s works reveal a peculiar set of beliefs about American attitudes toward violence. “Change — above all violent change — is the essence of human history,” he proclaims in his book, “Machiavelli on Modern Leadership: Why Machiavelli’s Iron Rules Are as Timely and Important Today as Five Centuries Ago.” In an influential essay in the National Review Online he asserts, “Creative destruction is our middle name. We do it automatically … it is time once again to export the democratic revolution.”

    Iraq, Iran and Syria are the first and foremost nations where this should happen, according to Ledeen. The process by which this should be achieved is a violent one, termed “total war,” a concept pioneered by the 19th century Prussian general, Karl von Clausewitz in his classic book “On War.”

    Ledeen’s take on this idea is wedded to ideology. In summarizing his book “The War Against the Terror Masters” on the American Enterprise Institute Web site, he writes: “We wage total war because we fight in the name of an idea, and ideas either triumph or fail … totally.” In his reckoning, force is the only reliable strategy to enforce our ideology on our enemies. In the same summary he claims, drawing inspiration from Machiavelli: “We can lead by the force of high moral example … [but] fear is much more reliable, and lasts longer. Once we show that we are capable of dealing out terrible punishment to our enemies, our power will be far greater.”

    http://www.alternet.org/story/15860/

  22. plunger says:

    A fellow at the conservative American Enterprise Institute, Ledeen holds a Ph.D. in History and Philosophy from the University of Wisconsin. In 1983, on the recommendation of Richard Perle, Ledeen was hired at the Department of Defense as a consultant on terrorism. While being investigated as a security risk by his supervisor, Noel Koch, it was learned from the CIA station that Ledeen had been carried in Agency files as an agent of influence of a foreign government: Israel.

    After having his access to classified materials blocked he ceased working there. He next appeared at the National Security Council as a consultant working with NSC head Robert McFarlane. Ledeen was involved in the transfer of arms to Iran during the Iran-Contra affair — an adventure that he documented in the book “Perilous Statecraft: An Insider’s Account of the Iran-Contra Affair.” A prominent member of the Jewish Institute for National Security Affairs (JINSA) board of governors and the Center for Security Policy (CSP), he advocates “total war” inline with the “Grand Strategy for the Middle East” which advocates “Iraq as the tactical pivot, Saudi Arabia as the strategic pivot and Egypt as the prize.” Ledeen is presently a serving member on the China Commission and, with the support of DOD Undersecretary for Policy Douglas Feith, he has since 2001 been employed as a consultant for the Office of Special Plans OSP). He is involved in the handling of classified materials and has high-level security clearances. He was also involved in election rigging of the 2000 election.

    http://www.nogw.com/warforisrael.html

  23. Mary says:

    I have a lot of mixed feelings on an assortment of elements in the case. For example, I have continued to be very bothered by Ellis’ earlier ruling, that receiving (as opposed to giving to others) national defense information is an Espionage Act offense, bc I think his “way broad” ruling there opened far too many doors that should stay shut.

    I also kind of think that what was going on did at a certain point become spying. When a mid-level govt minion comes to the lobbyists with info that is represented (by actions if not verbally, but I think even verbally IIRC) as being classified and their response is to set up secret meetings or transfers of the info to a representative of a foreign gov, that pretty much hits into spying for me. What I don’t understand is why they aren’t in the South Carolina brig instead of a courtroom, bc far more so than Padilla or al-Marri, they would fit the “spies and saboteurs” billing of the generic illegal enemy combatant.

    Back to the opinion, though, I have a very mixed feeling on whether what the Judge says in this case about classification is a) correct or b) very relevant to very much.

    I think what he is doing here is trying to ameliorate his earlier decision, but I don’t think he’s doing it in a great way. Plus, I think under his own dicta and/or advisory opining about 18 US Sec 793 (which isn’t really the issue before him, but he snakes it in as providing “context”) he would almost be making Leonard irrelevant as a witness.

    Looking at what is going on, the issue before him is basically whether or not Leonard participated so much in the Government’s case that the defense is barred from calling Leonard as a witness (and whether or not it is ripe to make that decision yet) and I think he gets that right and makes sense in those discussions. He says a little one hour generic confab with prosecutors doesn’t disqualify Leonard from acting as a defense witness.

    But …

    But then he goes off into a whole lot of “context” using dicta to talk amongst himself about why the defense will want to call Leonard.

    Judge Ellis makes the point that no one is being charged with disseminating “classified” information. That’s why I think his input on classification is not necessarily worth that much. He isn’t saying that the Exec’s determination of classification can be overcome by the jury or the Judge, he’s saying that the case in front of him is under a statute that doesn’t refer to classification.

    Rather, the statutory issue involves “national defense information.” 18 USC 793 does not even reference “classification” as a guideline, much less establish any presumptions that classification of a certain type or kind is conclusive (or even evidentiary) of information being “national defense information.”

    So to say that the determination of what is “national defense information” is a separate determination from the determination of what is “classified” is not, IMO, all that startling or bold or even perhaps, in the end, helpful in other areas. This is not, IMO, at all the same as saying that the President doesn’t get to decide what is classified (if actions were being taken against Exec branch employees, for example, under other statutes or provisions or in connection with a State Secrets claims). Instead, Ellis pretty much saying that the Prosecutors have to make a showing that information meets the standards for being “national defense information” on their own, separate and apart from classification decisions that were made by the Exec.

    Ellis says the standards for information to be “national defense information” are a) “whether that information, at the time the defendants allegedly received or disclosed it, was closely held by the United States;” and b) whether its disclosure would be potentially damaging to the United States or useful to an enemy of the United States.” He then specifically agrees that, when it comes to “classified” information, the Exec holds the cards, “the executive branch has the authority to classify and hold closely information the unauthorized disclosure of which is deemed by the government to have the potential to damage the national security.”

    That boxes the Prosecutors – because they are still bound by classification, and yet what they have to prove is the second element of the info being “NDI” without disclosing classified info and yet also without the existence of classification of the info making their case. So I agree with bmaz and Aftergood that this is going to almost crater the prosecution, but I think it does it in a way that is a gift to AIPAc without helping anyone else out much (well, I take that back – it will help some journalists if they ever get pushed to this point, but I am hoping that will never come to pass).

    But to get back to Leonard, Ellis’ ruling kind of makes him irrelevant. Yes, he’s an expert on gov classification – but Ellis has ruled classification has nothing to do with the charges under the statute. So he becomes a necessary expert … how? Ellis has made the evidentiary punchlist one that needs people who can testify as to whether or not members of Gov were actually “holding closely” the SPECIFIC information that is the subject of the disclosure vs whether or not people in gov in general are or are not required to hold classified information closely. And then there will need to be expert testimony on whether or not the SPECIFIC information that is the subject of the disclosure was potentially damaging to the United States or helpful to an enemy of the US.

    Where is Leonard an expert on either issue if his expertise is instead gov classification procedures, etc. and he has no knowledge of the specifics of how this particular informaiton was being handled and no knowledge as to the actual US defense impact of disclosures?

    The court seems to be saying that on the first prong, whether or not information was classified could go to showing that gov intended for the information to be closely held (which is where I guess Leonard might come in, testifying that classification was so misused and overused that there can be no implication of intent to closely hold, just because of classification – but that is a very dangerous and only marginally helpful claim to make, and in the end, the determinative evidence will be whether or not Gov ACTUALLY closely held the info, whether or not other classified info was or was not always closely held)

    On the second prong, damage to the US or assistance to enemies, you are looking at evidence that would not only not come from Leonard, but that is going to be hard to get in at all, without waiver of classification issues on some fronts, which will then shoot the Prosecution in the foot. But I have to say I don’t necessarily buy Ellis’ argument (without something more) that the existence of classification only goes to the first prong of the test and is not evidentiary on the second prong bc it is “hearsay”

    What he seems to be saying is that if the classification status is offered to prove “the truth of the matter asserted” and the matter is an effort to closely hold, it is not hearsay for that purpose and is evidentiary. But if the classification status is offered to prove “the truth of the matter asserted” and matter asserted is the potential damage to the United States or usefulness to enemies of the United States, it is wholly hearsay for that purpose and not evidentiary.

    I don’t think I buy that – I buy that it is not conclusive, but not that one of the many hearsay exceptions don’t apply (like public records) or that it is not at least circumstantial evidence, esp with the standard being one of “potential” damage or usefulness.

    In any event, I think the case is likely to die, and I think that Ellis’ dicta is not necessarily appealable at this point anyway, but I don’t think his approach on treating classificaton as hearsay goes beyond the context of an “NDI” charge or even that it is necessarily correct in an NDI charge. I do buy the fact questions get to be decided by the jury, though.

    fwiw

    • bmaz says:

      That boxes the Prosecutors – because they are still bound by classification, and yet what they have to prove is the second element of the info being “NDI” without disclosing classified info and yet also without the existence of classification of the info making their case. So I agree with bmaz and Aftergood that this is going to almost crater the prosecution, but I think it does it in a way that is a gift to AIPAc without helping anyone else out much (well, I take that back – it will help some journalists if they ever get pushed to this point, but I am hoping that will never come to pass).

      Yeah, it is an odd duck of an opinion. Quite frankly, it is kind of a circular clusterfuck of logic from a legal standpoint. That said, I like the symbolism it emanates for judges in other cases such as i mentioned. It is worthless as precedent, but, you know, Vaughn Walker and Mary Schroeder can’t help but notice the opinions of Leonard that stick out like a sore thumb and that another judge lo on the other side of the continent thinks Leonard’s opinions stand up tall. I used to know Mary Schroeder a little, I have been to lectures with her, and her husband was one of my professors. She is a news hound, she is going to notice this. May not carry the day, but it cannot hurt the concept of transparency that is need in the Mohamed case she is sitting on. Walker too is my bet. So, cluster or not, I’ll take it for that.

    • LabDancer says:

      I really think that, in the course of your ‘thinking out loud’ through the possibilities, you arrived at the correct take on the opinion, & moreover why it’s correct, yet [somehow] missed that you’d done so.

      Of course, Leonard NOT being actually involved with the classification of the information in question is what RENDERS him an ‘expert’ witness: if Leonard in fact DID have personal involvement with the classification of this particular information, then he would be disqualified AS AN EXPERT by that personal involvement.

      Indeed, it’s possible the government might have sought to excuse it’s clear effort to disqualify him by the pre-hearing interview by simply saying something like: well, we knew, like everyone knows, that Leonard was the guy at the top of the classification totem pole at ISOO, so we just went to interview him IN CASE it turned out he had personal involvement & so would be disqualified [which possibility they then throw away by proposing the laughably disingenuous position that merely by their effort to determine whether he was otherwise ineligible as an expert, he becomes ineligible].

      You got it right when you wrote this:

      “The court seems to be saying that on the first prong, whether or not information was classified could go to showing that gov intended for the information to be closely held (which is where I guess Leonard might come in, testifying that classification was so misused and overused that there can be no implication of intent to closely hold, just because of classification – but that is a very dangerous and only marginally helpful claim to make, and in the end, the determinative evidence will be whether or not Gov ACTUALLY closely held the info, whether or not other classified info was or was not always closely held)”

      But beyond that point, the purpose of the ruling is so narrowly focussed on the issue at hand — Leonard’s availability as a witness for the defence — that IMO it’s really hard to justify suggesting it somehow seriously limits or conditions the nature of the evidence that the government might use on the second prong of the test, and THEREFORE is [somehow] wrong.

      I’m able to go this far in your direction: The fact is that there are circumstances where the government is simply not going to be able to present a case that satisfes the second prong, owing to the having to produce evidence which itself reveals information which is properly classified as secret [whether because it’s also DNI or not], & therefore is going to have to withdraw the prosecution. I realize that might well offend the views of some as to ‘pure justice’, but it’s a necessary consequence of maintaining the rule of law in a presumptively open society — that to some extent the freedoms the constitution stands to protect trumps some risks to national security.

      Moreover, I expect that might be put too generally in relation to this particular case, as it seems to me we know enough about the nature of the classified information here to recognize that in fact it is widely known at least in the scientific community [& certainly it appears likely the judge is in a position to see that].

      Anyway, as far as I can see, you got it right then threw it away.

  24. Mary says:

    37 – Part of what the defendants have claimed is that the info given to them by Franklin wasn’t much different from other info freely and openly discussed with them by people like Armitage and Rice (which is why they had subpoenas out for them – I’m not sure what happened with that)

    So if an element of info being NDI is that it is closely held, and yet every Bushie you share a drink with starts yammering on about the same info – you might reasonably think it was not “closely held” and maybe even, if the yammer-er is the National Security Advisor, for example, that no one is particularly concerned with the info being damaging to the US.

    • plunger says:

      Everything you described right here was, and is, illegal. It’s Treason.

      Ever heard the phrase: “Loose Lips Sink Ships?”

      The prior generations who fought and died to preserve our freedoms would be appalled by such an attitude.

      Yammering on over cocktails with FOREGIN AGENTS about defense department missions, troop movements and policy GETS PEOPLE KILLED.

      IT’S ILLEGAL.

    • klynn says:

      Mary,

      Thanks for your response. I guess that brings me back to an earlier question/comment.

      You wrote:

      37 – Part of what the defendants have claimed is that the info given to them by Franklin wasn’t much different from other info freely and openly discussed with them by people like Armitage and Rice (which is why they had subpoenas out for them – I’m not sure what happened with that)

      I wrote at #39:

      This comment by Juan Cole regarding Franklin keeps coming to mind when I read the fourth point.

      Franklin did succeed in giving a confidential draft presidential directive on Iran to AIPAC officials, who then passed it to someone at the Israeli Embassy, perhaps Gilon. It is telling that the official took hard copy from AIPAC, presumably because he trusted them implicitly, whereas Gilon had rejected it from Franklin.

      If everyone (names you noted)) was yammering and the info was not much different, including Franklin’s info, then why did Gilon accept the info from Rosen and Weissman but not from Franklin? Does that fact not prove Franklin’s guilty plea while also fingering the awareness that the information passed on was classified and that they knew what they were handing over? The intent?

      Forgive me for all my questions. I must be driving bmaz crazy. But there are parts of this that are not totally shaking out in a clear sense for me.

    • Leen says:

      “Larry Franklin pleaded guilty to unauthorized disclosure of classified information in January 2006, was sentenced to 151 months in prison, and paid a $10,000 fine. He is now doing time in a federal prison. Rosen and Weissman, whose legal fees are being paid by AIPAC, are free on bail.”

      http://www.antiwar.com/orig/gi…..leid=13906

      I thought Aipac was not paying Rosen and Weissmans legal fees?

  25. Leen says:

    Mary “Instead, Ellis pretty much saying that the Prosecutors have to make a showing that information meets the standards for being “national defense information” on their own, separate and apart from classification decisions that were made by the Exec.”

    So does the prosecution bring someone in to trump Leonard’s testimony on classification.

    Does that mean the government would have to expose the specific documents that Rosen and Weissman allegedly passed to reporters and Israeli foreign officials? And that they are unable to do so because of the classification of that intelligence.

    Would an official secrets act have changed all this?

  26. Mary says:

    47 – I’ll take devil’s advocate on that one. In addition to the fact that you are talking about a plea, where there may have been many other undisclosed elements and possibly then uncharged offenses that the Prosecutors may have had vis a vis Franklin, I don’t think it’s that hard to find that his intent in his contacts with the AIPAC-ers could very well have been different than their intent, if they knew they were also getting the same info he was handing out surrpetitiously in cocktail party settings and openly from high gov officials, while he only knew about his own private efforts to leak.

    And then there’s the issue of “who” Franklin conspired with.

    One of my law school memories is a very cloak and dagger and very political case in Lexington invovling one broke nefarious guy and a few other very monied personages – on conspiracy counts (I think involving stealing copies of Grand Jury transcripts – I know that was one of the things going on in the case and I’m pretty sure – but not positive, I am remembering correctly about it being the thing tht applied to this matter) after a trial by jury even, the jury convicted the nefarious guy of conspiracy, but couldn’t decide which of the defendants who might have wanted the info he conspired with and so everyone else walked.

    It was weird, and topped off by the one of the defendants getting on a box in Triangle Park and giving an impromptu ode to Freedom of Speech and what a great country this is.

    • LabDancer says:

      I mentioned in an earlier response [to plunger, so you may have skipped it] that there are various ways in which the [superficial] conundrum you describe might arise properly under the law. Here’s a couple of examples:

      [1] Jury nullification, targeting the perception of mistreatment by the government of one or more, but not all, the defendants facing a conspiracy charge.

      Jury nullification is itself a pretty lively issue [I recall Balkinization had a couple of posts on this some months back], but regardless how one feels about it, at this point, & for an awful long time, it has remained either legitimate or at the very least tolerated.

      [2] Distinct from jury nullification, the government’s failure to satisfy the final test for conviction — i.e. proof beyond a reasonable doubt against a particular accused that she or he agreed to the illegal plan.

      Without suggesting this sort of evidence was necessarily available in the AIPAC case, I propose to use it to illustrate this point. Let’s assume that Franklin had NOT entered a guilty plea & that all 3 defendants are before this jury. Let’s assume further that the only government employee who is a defendant in this case, Franklin, also is the only one of them to have given to the government, or given to a witness called by the government, a statement that operates as a damning confession.

      The judge directing the jury as to what the law requires of them & as to what the law allows them to do with the evidence would be bound to direct the members of the jury that they must each & together consider that confession as part of the evidence before them on the questions of:

      [a] whether the government has proven that a conspiracy existed,

      [b] the nature of that conspiracy [eg. to pass on classified DNI on WMD to the general benefit of the state of Israel], &

      [c] who all was part of that conspiracy [i.e. it’s membership if you will].

      However, whether or not at the same time, certainly at some point, the same judge would also have to direct the same jury that the evidence of a guilty intention contained within that confession can only be used by the jury in determining the guilt or innocence of Franklin, & can not be used in any way by the jury in determining the guilt or innocence of the other two who did NOT make that statement of confession, or endorse it in any way.

      Therefore the jury would [or should] understand that they are REQUIRED to assess the credibility & content of that statement of alleged confession in determining the jury’s answer to the first 3 issues necessary to be considered, all of which might include the other two defendants, & they MAY proceed to find that statement credible & its content sufficiently reliable to use to base the jury’s finding of all facts necessary to be found to justify convicting Franklin, yet turn around on the last issue & determine that the evidence to be properly considered against the two others who did NOT make that credible statement of confession is nonetheless insufficient to found a finding of guilty against those two others.

      That’s why I refer to this outcome as SUPERFICIALLY wierd, when in fact it is simply a product of quite proper & just development of the law. And again, I’ve deliberately taken out the factor of a guilty plea, which might infect the process with the idea of a difference of opinion among lawyers & clients as to the strength of the government’s case & the particular defendant’s potential answers.

      [I should point that, strictly speaking, this sort of result is not restricted to conspiracy cases. It can arise in a wide variety of joint enterprise crimes.]

  27. managedchaos says:

    “He gave me far more information than I gave him,” – Larry Franklin

    It might not be relevant to this case, but I think a lot of people overlook the fact that the AIPAC spies and probably Naor Gilon were giving Franklin and the OSP false intelligence in an effort to influence US policy to Israel’s benefit. I believe some of this false intelligence was used to go to war with Iraq as well as building a case against Iran. This is corroborated by people such as Karen Kwiatkowski in The New Pentagon Papers (http://dir.salon.com/story/opinion/feature/2004/03/10/osp_moveon/index.html) where she says:

    I witnessed neoconservative agenda bearers within OSP usurp measured and carefully considered assessments, and through suppression and distortion of intelligence analysis promulgate what were in fact falsehoods to both Congress and the executive office of the president.

    • Leen says:

      Exactly when false intelligence and manipulation of classified or unclassified documents are used to promote an unnecessary war and to start another with Iran. Understanding where that push is coming from seems extremely relevant

      • klynn says:

        Rosen is pretty cocky in this instance. He must have some “inside information” on his own status to be taking such a position. Amazing.

      • macaquerman says:

        I should have read further. If Jeffrey Goldberg is backing up this shit, then I suggest you read the reaction from Attackerman over here, Yglesias and a bunch of others. This shit will be trumpeted and overwhelmed.
        Unless I’m getting too happy again, already.

  28. Mary says:

    83 – LOL

    Any other life directions you want to hand out? Why in the world do I need to know where Franklin is right this minute and prove it to anyone? I think it may be time for meds. If you had bothered to read what I wrote, I started off by saying that I thought the AIPAC guys WERE spies.

    The US does not have an official secrets act like Britain, so classification is not something that in and of itself will give rise to charges and that is what Ellis is saying – if Bush classified Sesame Street, people who watched it could not be found guilty of a criminal act bc they watched classified info.

    By contrast, we do have an Espionage Act, so yes indeed, as you should have been able to follow, some kinds of loose lips are actionable. Not loose lips that leak the location of Conjunction Junction, but loose lips that leak info that meets the two prongs necessary for the info to be NDI.

    Ommmmms, and on Franklin, all I know is that after holding off on sentencing him for a long time, supposedly bc of cooperation issues, he was sentenced the end of 2006. Usually, after actual sentencing, he would go to jail – but maybe he hasn’t, esp if he is helping with the case against the AIPAC-ers. Why is it so important to you that you want to channel Zell Miller and fight a duel over it?

  29. Leen says:

    http://www.antiwar.com/orig/gs…..leid=14297
    February 23, 2009
    Should AIPAC Decide What’s Classified?
    by Grant F. Smith

    “In 1962 AIPAC’s predecessor organization – the American Zionist Council (AZC) – ran into trouble when Attorney General Robert F. Kennedy ordered it to register as Israel’s foreign agent under the 1938 Foreign Agents Registration Act (FARA). The Department of Justice (DOJ) discovered the AZC had secretly received the equivalent of $35 million in Israeli funds to build a domestic lobby and conduct public relations in the United States for arms, aid, and preferential diplomatic treatment. In a massive but secret battle with the DOJ, the AZC managed to win two important concessions. The AZC was allowed to file a partial activity declaration covering only three months rather than the many years during which it was most actively lobbying for Israel. The DOJ also accepted – at the AZC’s insistence – that its declaration of the names of recipients receiving payments from Israel be kept secret rather than be open for public inspection as all FARA declarations normally are.

    This allowed the AZC to quietly shut down operations and reorganize lobbying activities within AIPAC. The typed statement of Israeli-financed payments to major U.S. scholars, New York Times media personalities, and an assortment of other recipients was only declassified in 2008. In effect, the government classification won by the AZC preserved AIPAC’s reputation, thereby ensuring the Israel lobby’s uninterrupted rise even after the FARA order. Although this may now seem only an esoteric historical point, the classification paved the way for even greater AIPAC and Israeli transgressions.

    In 1983, Israeli Prime Minister Yitzhak Shamir and AIPAC lobbied the Reagan administration for preferential Israeli access to the U.S. market. On Jan. 31, 1984, U.S. Trade Representative (USTR) William E. Brock commissioned the U.S. International Trade Commission (ITC) to “conduct an investigation … and to advise the president … as to the probable economic effect of providing duty-free treatment for imports from Israel on industries in the United States.” But rather than move the two states closer to true free trade, the trade negotiations mangled the rights of American businesses.

    U.S. industry groups were alerted via the Federal Register about the proposed trade agreement and urged to provide written comments and/or appear at public hearings. The ITC compiled reams of “business confidential” information about market share and trade secrets from highly concerned U.S. corporations and industry associations into a classified 300+ page report that it transmitted to the USTR for use in negotiating the deal on May 30, 1984. Only 15 numbered and carefully circulated copies were ever printed, but on Aug. 3, 1984, the Washington Post broke the news that the FBI was investigating how AIPAC obtained a copy. The ITC later confirmed the secret report was also held by the Israeli government. “

  30. Mary says:

    84

    So does the prosecution bring someone in to trump Leonard’s testimony on classification.

    Does that mean the government would have to expose the specific documents that Rosen and Weissman allegedly passed to reporters and Israeli foreign officials? And that they are unable to do so because of the classification of that intelligence.

    Would an official secrets act have changed all this?

    To answer the last one first – on official secrets I’ll give a resounding “maybe.” Since apparently so much of the info given by Franklin was passed on verbally and without there being marked documents, and since there have been kinda credible allegations that a slew of other people in the Bush administration were telling these guys the same thing, more openly and with the seeming position and authority to disseminate, you might still have some proof issues; but in that case classification would be the operative reference instead of “national defense information” Which does also mean that things with very little national defense impact, like torture programs and maybe Sesame Street program would also trigger prosecution.

    On Leonard – the Prosecution would definitely need to bring someone in. It wouldn’t be so much to trump Leonard on his knowledge of classification in general, though, or even his knowlege of multiple misuses and abuses of classification and/or his knowledge of leaking being so rampant that mere classification did not necessarily indicate an intent to “hold closely” What they would really need to do is bring in witnesses who were familiar with the actual info and who were familiar with how the actual info at issue was being treated – if Leonard did have that kind of info, then his motion wouldn’t have been quashed, he would have been deemed to be not eligible to be a defense witness bc he’d be a fact witness instead.

    On the info itself, if it is still classified, then it has to be handled under CIPA
    http://intelligence.senate.gov…..edures.htm
    in order to be used at trial, and that makes it harder for prosecutors since they will have to be pretty careful. If it is not still classified, then it kind of undercuts the argument that the info was so potentially damaging. The arguments can still be made, but the impact is that just because something was classified, even if both parties knew it was “classified” doesn’t win the day – and if info is so potentially damaging that it deserves treatment as NDI, it’s hard to make the argument that you can disclose it in open court. That has always been an issue for this kind of case and why, to be honest and it gets into a lot of what are called “sword and shield” issues in the law.

    fwiw

    • Leen says:

      Mary “If it is not still classified, then it kind of undercuts the argument that the info was so potentially damaging.”

      The Libby defense sure tried to throw whether Plame’s identity was classified or not sure seemed to be dancing with the devil.

      The last eight years of the Bush/Cheney classify/declassify shuffle sure had my lay persons head spinning.

      It does seem that it should not come down to whether the intelligence was classified or not but how the classified intelligence was used. But how can you anyone know how it was used if you can not pull in the Israeli officials that these documents were handed off to

  31. Mary says:

    94 – You don’t have to convince me that these guys knew what they were doing was wrong, bc I do think they were spying, but look at is before the court (and right now, that’s no real evidence bc no trial has been had yet)

    If you read page 4 of Ellis’ opinion, you will not see a reference to that confidential draft, as a complete document, being handed over and if you look further at the parties, you will note the absence of any reference to Gilon as a defendant. Naor Gilon returned to Israel in 2005 and I haven’t followed the case closely enough to know what access or not was given to him, but I’m betting on Israel not making him available for testimony or questioning.

    So while the things you mention are definitely things that would sway a decision, they still have to be put into evidence as being true.

    • klynn says:

      From this, he’s back.

      Thanks again for your help. Honestly, as Leen said, all of info and interrelationships on this, the Franklin case and the possible link of this to other intel issues of the last eight years does make the lay person’s mind spin. (And it is possible just one of those intel issues could blow this case wide open.)

      I still have the four points that Ellis pulled to emphasize, nagging at me and I still have not found the reason why, despite the great commentary here and the many answers to my questions. I’ll sleep on it.

      Thanks again.

    • Leen says:

      How many of the prosecutions top guns have dropped out?

      McNulty (I believe), Di Gregory and now James Trump is the top dog. How often does this happen? Having two top Prosecutors drop out? Sure would seem to weaken their momentum

  32. Mary says:

    96 – It is an odd duck. It really seems set up to make sure this goes away for the AIPAC guys (which isn’t what I would want) and it does set a precedent on the people merely receiving info (even involuntarily) that I don’t like. OTOH, Leonard should get to testify (the actual holding for this opinion) and the statutory distinction between NDI and Classified info is probably technically correct as well, although I’m not sold on the hearsay determination and I don’t even think the issue was before the court on this motion – so it’s this weird conglomeration – like a five year old’s kinda scarey interpretation of Jambalaya.

    But the rhetoric on a jury, not the Exec, getting to decide if the info really was NDI under the statute – that I like. Like juries getting to make some determinations under some other statutes I could think of I think it is definitely some collateral assistance

  33. klynn says:

    I have been away from this case for so long… I cannot remember…Do we have an idea of what information the jury will get to look at to make a determination as to NDI classification?

  34. macaquerman says:

    If a conspiracy existed and thetwo accepted information that was illegally furnished to them, and if the furnishing of the information was sufficient proof of guilt on the part of the disburser, then without regard to the different obligations of the parties, or even of the possibly innocent intent of the acceptors, it’s not something that a jury is likely to buy.

  35. macaquerman says:

    Shit. I take your point, but let’s see if they stop him from assuming the post and let’s see how the administration reacts.
    Thanks for the news, I was getting too happy.

  36. Mary says:

    100

    Of course, Leonard NOT being actually involved with the classification of the information in question is what RENDERS him an ‘expert’ witness: if Leonard in fact DID have personal involvement with the classification of this particular information, then he would be disqualified AS AN EXPERT by that personal involvement.

    Sure, but so what? I agreed he’s an expert on classification and that he doesn’t have the kind of involvement with the prosecution that he should be prevented from being used as a defense witness. The point I was making is that after talking about how important Leonard might be (as a classification expert) Ellis then pretty much says classification isn’t an issue.

    So classification in and of itself is off the table as an issue for the charges. So what relevant testimony does Leonard have to offer?

    Well, Ellis says that NDI is the issue and it has two prongs. For the first prong, intent to to closely hold, Ellis is saying that classification isn’t an issue, but it might circumstantially be evidentiary of an intent to closely hold (using something like a state of mind type exception – he doesn’t really specify)- that’s it though. So Leonard’s relevance would be on that issue – can he testify as to whether or not classification is evidentiary of an intent by gov to closely hold – or not.

    It will be fun for the defense to go through all his complaints about misuse and abuse of classification, but if they aren’t relevant to the issue of gov intent to closely hold, I’m not sure how big the field day will be – a fun depo though. I’m also not sure that Leonard, even with his concerns about overclassifying, wouldn’t in the end say that classification is more likely than not to mean that gov does intend to closely hold the info. Maybe not – Cassandra is not my middle name.

    Then for the second prong (whether or not the info potentially could damage the US or assist and enemy), Ellis says that classification is just flat out hearsay. That would normally mean no experts of any kind to testify on classification vis a vis the issue of potential threat.

    So:

    … it’s really hard to justify suggesting it somehow seriously limits or conditions the nature of the evidence that the government might use on the second prong of the test, and THEREFORE is [somehow] wrong.

    I did say that everything on the classification issue was dicta, so I haven’t suggested that it can limit or condition the evidence, I actually think I kinda suggested that it all had no place in the opinion

    But if he means what he says (on classification and both prongs) then he’s saying classification can’t be used as evidentiary on the second prong. I think he may well be wrong on that, not because he is:

    … limit[ing] or condition[ing] the nature of the evidence that the government might use on the second prong of the test, and THEREFORE is [somehow] wrong

    but because I think he hasn’t examined all the hearsay exceptions that might apply to using classification information as evidentiary on the second prong. It’s not that I’m saying that he can’t limit what the prosecutors would put on as evidence of potential damage to the US bc that is “therefore” “somehow” wrong, but rather that he hasn’t made a case that there is no hearsay exceptiont that might apply (esp when the evidence is already coming in, in part, under the other prong) and I’d say that things like who classified, their training and authorizations to classify, etc. might well be evidentiary of the potential damage and also that exceptions like the fact that the underlying documents were regulary kept in the ordinary course as public records, etc. might well give rise to exceptions.

    Those were my points.

    What I think limits the prosecution is that merely showing evidence that what was conveyed was “classified” is, if Ellis follows his dicta, not going to get them anywhere. So they have to go into the entrails of WHY it was potentially damagin and that is going to, IMO, almost necessitate that they make some very tough decisions (which may be taken out of their hands) on how much NEW and OTHER classified info gets put into the discourse to prove up the potential damage issue – since mere “fact of classification” gets them nowhere.

    • LabDancer says:

      You seem to handle this like quicksilver. Might I suggest you’re mixing yourself up by failing to keep separate:

      [a] the process by which the government prosecutors MUST address to prove the two essential components to the substantive count [that of communicating classified DNI],

      from

      [b] the process by which the government prosecutors MIGHT CHOOSE in trying to prove on the inchoate count [that of conspiracy to communicate classified DNI]?

      This opinion says the government cannot seek to prove that a particular piece of information is in fact DNI [the “second prong of the test”] by its “classification” of that information.

      In fairness, this opinion goes further, to suggest that classification is irrelevant to whether information is in fact DNI — which may be what gives off the impression of oddness: the possibility that the government might actually seek to prosecute a case of illegally communicating DNI that, for whatever reason, happens to be unclassified. But that’s only a theoretical possibility from an overly narrow reading, not a ‘real’ possibility, because meanwhile the first prong of the test still requires proof that at the very same material time the very same information was not ‘merely’ DNI, but also classified.

      Yet, turning back to the conspiracy count, it isn’t actually essential that the government prove that any information the government chooses to show that the defendants in fact communicated was in fact either classified OR DNI, leave aside both.

      Instead, ‘all’ that is ESSENTIAL for the government to prove is that a given defendant conspired with another person [presumably one or the other or both of the other defendants; I assume this count is framed in terms of the other two defendants, but even ‘with some other person’ would suffice technically] to communicate classified DNI.

      In that context, offering proof that the defendants in fact did communicate classified information [as distinct from classified DNI] would not be, I am prepared to agree, irrelevant to the issue of the INTENT, of whichever of the defendants did the communication [though there’s some judging to be done as to whether the particular instance of communication might be too ‘remote’ from the conspiracy as framed, which is difficult to do from this distance; for example, there may be a low-level classification of the fact of a fellow office worker having received a speeding ticket, the breach of which would I would posit as far too remote to be relevant to the issue of whether a defendant had a serious intent to communicate classified DNI].

      Put another way: it would be obviously germane, & undeniably powerful, evidence, as to the existence of an agreement between A & B to communicate classified DNI, that A had in fact on some occasion passed on to B a piece of classified DNI proven to be such, & that B had passed on that same information to an agent of a foreign power.

      And it would be still germane, though not as powerful, evidence as to the existence of such an agreement, that A had in fact on some occasion passed on to B a piece of classified information proven to be such, as distinct from classified DNI proven to be such.

      It MIGHT even be germane that A had a proven inclination to pass on to B various pieces of information associated with the government generally, & with this sensitive area particularly, whether or not classified, but nonetheless still someone ’sensitive’ [or at least arguably so]. But none of the latter two types of proffered evidence would be relevant to a count of having actually communicated classified DNI.

      I would not wish to be seen as suggesting that this is at all easy for judges, to say nothing of juries, involved in conspiracy cases where the government chooses to rely on evidence of substantive crimes to support the conspiracy count: all this hearing of evidence relevant to one issue but irrelevant to another carries a huge risk of misunderstanding.

      Nor do I exclude the lawyers involved for the parties as sources of confusion: It’s a tricky business [& those–like me– who have a fatal attraction for it, might also be suffering from some mild form of masochism].

      But appreciate: Secret Steve Aftergood isn’t predicting the inevitable demise of the government’s case; rather, he’s suggesting that demise as a probability. I see bmaz as going beyond that & suggesting the outcome as a virtual lock, against which I’m not prepared to bet [I’d have to be there to dare an informed comment.] but nonetheless still NOT an inevitability. I see the logical extension of where you are trying to go as precisely that inevitability, & I just say I cannot agree.

  37. klynn says:

    What I think limits the prosecution is that merely showing evidence that what was conveyed was “classified” is, if Ellis follows his dicta, not going to get them anywhere. So they have to go into the entrails of WHY it was potentially damagin and that is going to, IMO, almost necessitate that they make some very tough decisions (which may be taken out of their hands) on how much NEW and OTHER classified info gets put into the discourse to prove up the potential damage issue – since mere “fact of classification” gets them nowhere.

    This is interesting. I had read somewhere, and I have been trying to find where I read it, that it is quite possible the classified info relates to Plame?

  38. Leen says:

    Just read through the
    U.S. Vs Rosen And Weissman statement of facts again. How do we know that every time Franklin met with Rosen, Weissman and others to discuss or hand over classified intelligence between the time that the F.B.I. was taping or following them between August 2002 and June 30 2004. How do we know that every time the document mentions that they met to discuss the “nuclear program of a middle eastern country” that that country is Iran?
    http://www.fas.org/sgp/jud/aip….._facts.pdf

  39. robspierre says:

    To me, this seems like good news all around, even if a couple of AIPAC agents skate as a result. It looks like a case where the self-protective instincts of the conspirators who got caught are working against the conspiracy. Given the kind of relationship AIPAC had with the last administration, I’d expect that Bushco is hiding a lot more secrets that could hurt AIPAC than could possibly help it. So anything that breaks down arbitrary executive secrecy exposes AIPAC and is a plus for the country.

  40. MarkH says:

    One of the things which worries me is the idea of having a jury decide what ‘might be detrimental to national security’. How would they know? It’s not like they have access to enough real information to see how the information in question fits in. It’s not like they would know how having that information might inform other people (enemies or not).

    This is a bit of a judge run wild.

    • macaquerman says:

      I think that the jury might get to listen to testimony and argument addressing that point and possibly a few others as well.

      Have you any familiarity with jury trials?
      Love the image of a judge running wildly, robes aflutter.

  41. Leen says:

    Several years ago the few folks who were discussing this investigation now 5 time delayed trial predicted that this trial would be dismissed. It has yet to be dismissed…this is a plus.

    Hoping that the MSM finally starts to shed some light on this investigation and trial

    • macaquerman says:

      The investigation is long over and the trial long delayed.

      Do you see much sizzling media coverage of appeals courts?

      • Leen says:

        No absolutely no MSM coverage. Who says there is not I lobby? Actually there has been very little coverage in the so called progressive blogosphere. But quite a few folks did not think it would make it this far

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