Should AIPAC Decide What's Classified?

On Feb. 17, Judge T.S. Ellis added a new twist in the case of two former American Israel Public Affairs Committee (AIPAC) executives indicted 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 prior incidents.

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.

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?

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