Has Justice Returned to the Justice Department?

The Obama administration has decided to drop the charges against Steven Rosen and Keith Weissman, two former AIPAC officials who were to be tried under a rarely used section of the 1917 Espionage Act that makes it a crime for civilians to receive and disseminate secret information.

Recall that the information they were alleged to have received in 2004 was that Iranian forces hostile to the United States and Israel were poised to kill Israelis, operating — apparently clandestinely, and most certainly with the knowledge of U.S. forces —  in Iraq. They were allegedly told by Defense Department official Lawrence Franklin, who was then cooperating with the government and has since pleaded guilty to security leaks, that the Iranian threat was being downplayed by the U.S. government determined to focus all attention on Iraq. Franklin turned to them because of his concern that the U.S. policy was misguided and that Iran was the real threat.

Rosen and Weissman may not have known that the information they received was secret. They well knew that they received the information in a manner that was standard operating procedure in Washington.

Rosen and Weissman attempted to ascertain the truth of the information they received — they checked with their colleagues within AIPAC, the press, security experts in and out of government and then they went to the Israelis to inform them of the threat to Israeli operatives — as well they should.

Why was the case dropped?

The reasons are many.

Apparently the two lawyers representing Rosen and Weissman — separate lawyers, different law firms — prominent Washington attorneys Abbe Lowell and Baruch Weiss, did not simply outperform the government’s lawyers — they exposed the weakness of the government’s case time and again. Lowell and Weiss won victory after victory with regard to the evidence that could be presented, the witnesses who could be called and the burden of proof that the government would have to offer. Notwithstanding multiple appeals, the government was required to prove beyond a reasonable doubt that the two knew that the information they received was secret and that they knowingly acted against the interests of the United States when they alerted the Israelis to the danger. This was virtually an impossible threshold for the government to prove.

The simple fact of a leak by a government official to lobbyists could easily be construed by the recipients of such information to indicate that the leak was authorized and its transmission was in the best interests of the United States.

Certainly, the avowed concern of Franklin, Rosen and Weissman that U.S. policy toward Iraq was overshadowing the more serious issue of the Iranian threat has been vindicated by history. So the focus on Iran was indeed in the interest of the United States, albeit not as perceived by the Bush administration and its supporters at that time.

Nothing has strengthened Iran more than the U.S. invasion of Iraq.

Secondly, the case was going to be a major embarrassment to the government. It would have exposed the way business was done in Washington. Among the witnesses to be called was former Secretary of State Condoleezza Rice, herself a Rosen protégé at the Rand Corporation, who would have had to testify that indeed secret information was routinely shared with lobbyists and foreign policy experts in order to further U.S. interests. It would have been interesting to see how the government would have made its case that the particular information allegedly transmitted to Rosen and Weissman violated the law.

The case was a political nonstarter. The press, lobbyists and other interested parties routinely traffic in such information. Success in Washington is in no small part determined by one’s access to such information, to know what will be in the news in the near future and to be the bearer of secrets. From the press to the think tanks — excepting those who enjoyed seeing AIPAC in political trouble — all uniformly supported Rosen and Weissman and condemned the government for its excessive zeal in employing an arcane provision of the law that is routinely ignored.

So while the case is over, it leaves behind several questions for the Jewish community, most especially for AIPAC.

AIPAC did not immediately dismiss the two men, but initially used the charges against them as a fundraising opportunity. But after legal advice presumably recommended that Rosen and Weissman be sacrificed to prevent an indictment against the organization itself, they were fired. Then AIPAC was reluctant to pay their legal fees in a timely manner. It tried to starve their lawyers into cutting a deal that would make AIPAC’s problem disappear.

The Israeli press criticized AIPAC for violating a cannon of Israeli ethics: Israelis don’t leave a man in the field, Israelis don’t cut and run. Nor should Jews.

AIPAC also made it difficult for others within the Jewish community to employ Rosen and Weissman. Thus, for the nearly four years from indictment to the dropping of charges, their lives were on hold, their financial survival imperiled. They were sidelined at the peak of their careers — sidelined and virtually silenced. Only belatedly did some Jewish officials speak out in their defense.

Furthermore, time has only vindicated Rosen and Weissman’s insight that contrary to the groupthink of 2002, Iran was a greater threat, not only to Israel, but also to the United States, than Iraq. Were AIPAC officials too close to the Bush administration to see that reality or were they too desirous of supporting the case for war to focus attention on Iran, which these two AIPAC officials believed was worthy of consideration? Jewish leaders must walk a fine line between being close to but not too close to any administration.

AIPAC acted unconscionably in dismissing them, but the Jewish community is not blameless either; it was noticeably silent and, in fact, shunned them. Those following the case knew Rosen and Weissman were being prosecuted under a rarely used World War I law. Are we so afraid of seeing anti-Semitism that we dare not even speak its name?

Members of the community were being prosecuted wrongly under an obscure law, and the Jewish community should have responded strongly without fearing losing access to power.

At the AIPAC conference there were expressions of relief that the organization was no longer under a cloud. One high ranking former official said that Lowell — who is owed millions of dollars — was holding out an olive branch. Harman spoke, vowing to clear her name. And some in the audience were still wondering why the organization famed for its fortitude and clout cut and ran for cover rather than backing Rosen, who had been the architect of AIPAC’s focus on the American-Israel strategic alliance.

It will be interesting to see the nature of the settlement that is worked out with Lowell and Weiss for their brilliant work and with Rosen and Weissman who lost more than four years of their lives to charges that should not have been brought in the first place.

Attorney General Eric Holder and White House officials who were likely to have had knowledge of such a significant decision have done the right thing. They have shown that justice can be pursued.

But there is still one more matter for Attorney General Holder to investigate. The same forces within the Justice Department that went after Rosen and Weissman must have leaked the information about the noninvestigation into Rep. Jane Harman (D-Venice) for allegedly having a conversation regarding Rosen and Weissman. Frustrated that these charges were going to be dropped, they did not want to go down without a fight. So, once again, they sought to damage a patriotic American with anonymous accusations that could not be substantiated. Harman was never charged with a crime, never even investigated for a crime, yet her name was bandied about as if she was. While Rosen and Weissman have been vindicated, there are still destructive forces within the department.

Michael Berenbaum is professor of Jewish studies and director of the Sigi Ziering Institute at American Jewish University.