On Feb. 17, Judge T.S. Ellis added a new twist
in the case of two former American Israel Public Affairs Committee (AIPAC)
under the 1917 Espionage Act. In what the Jewish
Telegraphic Agency and Secrecy
News describe as a major blow to the prosecution, Judge Ellis ruled
[.pdf] that J. William Leonard can testify on behalf of the defendants when
they go to trial on April 21, 2009.
Government prosecutors previously argued that since Leonard – a career government
employee with expertise in the classification process – had been briefed about
the case in 2006, he could not legally become a witness for the defense. Rosen
and Weissman defense team lawyers expect that Leonard's testimony will throw
down the gauntlet by saying that the U.S. government "over-classifies" information
of the type AIPAC lobbyists sought and circulated. Leonard has examined the
national defense information (NDI) Rosen and Weissman obtained and is said
even to be prepared to testify that the "back-channel" practice of disclosing
national security information to journalists and lobbyists can actually advance
U.S. national security interests. Leonard is also expected to certify that
the NDI released in the AIPAC case was neither closely held nor particularly
damaging to the U.S. More curious still, Judge Ellis believes (according to
his ruling) that Leonard may even be qualified to opine on whether the defendants
could have been in a "state of mind" in which they believed their conduct was
lawful. The 1917 Espionage Act is silent on such issues.
The defendants rightly consider Leonard to be their "most important and irreplaceable"
witness, and jurors will likely be bowled over by his credentials. Between
1973 and 2002 Leonard was employed by the U.S. Department of Defense as director
of security programs and later deputy assistant secretary of defense for security
and information operations. Leonard was charged with developing and monitoring
the implementation of policies to stop classified information leaks, investigate
leaks, and ensure that NDI was properly classified. Between 2002 and 2008,
Leonard served as director of the Information Security Oversight Office, the
"classification czar" responsible for government-wide classification systems.
He now runs his own private consultancy.
AIPAC could have found no better friend than Leonard to gently advise the
jury to "move along, there's nothing to see here." If that occurs, America
may witness the final stage in AIPAC's long-term drive to essentially declassify
or classify U.S. government secrets at will – a potentially dangerous threat
to the rule of law in America. If this seems a bit over-the-top, consider two
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
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.
Israel subsequently leveraged the highly sensitive inside information from
U.S. companies and associations most affected by the pending agreement against
them. According to the Washington Post, "a spokesman for the American
Israel Public Affairs Committee (AIPAC), the principal pro-Israel lobbying
group in this country, acknowledged that the organization had a copy of the
report but said the lobbying group did nothing illegal." There is no lingering
doubt about the sensitivity of the trade report obtained by AIPAC and Israel
– an attempt to declassify it under the Freedom of Information Act was
denied on "national security" grounds, among other reasons, late in 2008.
The consequences of the alleged AIPAC espionage now on its way to trial could
have been far worse. We now know that Israel solicited American approval to
attack Iran over its civilian nuclear program and sought
both overflight rights and advanced munitions from the United States. Both
requests were denied on the basis of U.S. national security interests. If Rosen
and Weissman's parallel intelligence-collection project had gone undetected
and actually succeeded – the FBI was investigating their movements since at
least 1999 – AIPAC might have been able to leverage the NDI through press,
pressure, and propaganda into permission for Israeli or even U.S. strikes against
Iran. Perhaps with J. William Leonard in tow, AIPAC's abuse of national defense
secrets will succeed the next time around. But the fallout from attacking yet
another country on false pretexts is unfathomable. This is why Americans observing
mainstream pundits and assorted ideologues trumpeting the current course of
the long-delayed AIPAC espionage trial as a victory
for freedom of the press should ponder this: is it really in our best interests
that Israel and its American lobby be empowered to classify or declassify American
secrets at their whim?