Why Are Feds Threatening a Government-Secrets Expert?

The Justice Department has threatened to file criminal charges against a former top National Archives official if he testifies as a defense witness in a high-profile national-security case.

J. William Leonard, who resigned last January as the U.S. government's chief expert on classified information, after a bitter clash with Vice President Dick Cheney's office, has been cooperating with defense lawyers in a case charging two former officials of the American Israel Public Affairs Committee (AIPAC) with improperly disclosing national-security secrets, according to recently filed court papers.

The threat to file charges against Leonard—for allegedly violating federal ethics laws—was laid out by prosecutors in a public-court filing last spring, but got no public attention. In recent weeks, however, it has become the latest point of contention in a case that has generated enormous controversy in foreign-policy and civil-liberties circles.

The case charges that Steven Rosen, the former chief foreign policy aide at AIPAC, and Keith Weissman, the group's former chief Iran analyst, violated a World War I-era law, called the Espionage Act, when they allegedly passed along national security secrets to officials at the Israeli Embassy and to reporters. They had learned the alleged secrets in meetings with high-level government officials, including then national-security adviser and now secretary of State, Condoleezza Rice. The two men are the first nongovernment officials ever to be prosecuted for disseminating "national defense information" under the law, raising concerns that others—including members of the news media—could ultimately face similar kinds of charges if the government's case is successful.

But the secret information Weissman and Rosen are being accused of passing along might not have been secret at all. Lawyers in the case told NEWSWEEK that, after reviewing a large volume of sealed evidence, Leonard was prepared to testify that the information at issue was either not properly classified or was already available from public sources, including newspaper accounts.

"This is a bizarre twist," said Steve Aftergood, a national security specialist for the Federation of American Scientists, who has followed the case closely.  "If [Leonard] is right, not only are the defendants innocent, there was no crime."

As director of the National Archives' Information Security Oversight Office, Leonard was known as the government's "classification czar" because of his authority to enforce rules on the handling of classified information. He was also a strong critic of government classification practices, contending that far more information was branded "classified" (and therefore barred from public disclosure) than was justified.

But Justice Department prosecutors have aggressively struck back with an unusual maneuver to block Leonard from ever airing his views in court. After defense lawyers signaled their intention to use Leonard as an "expert witness," federal prosecutors filed a motion asserting that if Leonard appeared on the witness stand he could be criminally prosecuted under federal ethics laws.

The reason: Leonard had once briefly met with prosecutors on the AIPAC case when he still served in government. Therefore, the prosecutors now assert, he is covered by a federal ethics laws that bars former officials from appearing in court on behalf of a private party in any matter in which they had participated "personally and substantially" while they were in public office. "These ethics laws provide both criminal and civil penalties for violations," the prosecutors wrote in their motion. "Knowing violations of the law can be punished by not more than one year in jail and fine, and willful violations may be punished by up to five years in prison and fines." (A Justice Department official, who asked not to be identified, talking about an ongoing case, said that prosecutors did not view their motion as a threat, merely a statement of the applicable laws governing Leonard's cooperation with the defense lawyers.)

Defense attorneys and Leonard's lawyer, Mark Zaid, say the Justice Department's position is a stretch at best. Leonard never worked directly on the AIPAC case, they assert, and played no role in the decision to charge Rosen and Weissman with a crime. After the two men were indicted, government prosecutors met with Leonard for less than an hour in March 2006, to ask him if he would serve as a government witness to talk about the importance of protecting classified information. But when Leonard told them about the inconsistent ways in which national security information is classified, the prosecutors lost interest in using him as a witness and never contacted him again.

"It's an outrage" says Baruch Weiss, a defense lawyer representing Weissman, who is seeking to call Leonard as a witness in the case. "When they thought he might say what they wanted him to say, they said, 'Terrific.' When it turns out he's going to say something that is helpful to the defense, they say, "We're going to prosecute you for a crime.' I have never seen anything like this before."

Since then, defense lawyers have sought to subpoena Leonard, who, through his lawyer, Zaid, moved to squash the subpoena. The idea behind this legal back and forth was to force the judge in the case, T. S. Ellis III, to issue a ruling requiring Leonard to testify, thereby protecting him from criminal prosecution if he does. (Leonard had sought an ethics opinion from the Archives and was told he should seek a court ruling on the matter of his testimony.) There is no indication when Ellis might rule—or even when the AIPAC case might come to trial. Although it was scheduled to begin next month, lawyers say the date is certain to be moved back—most likely to next year—because of continued clashes over what national security secrets can be declassified and disclosed to the jury during the trial.

The case is being watched closely because of a decision by judge Ellis last year, in which he ruled that when the case does come to trial, current and former high-level government officials, including, Rice; former undersecretary of Defense Douglas Feith, and former deputy secretary of State Richard Armitage; must testify about their own conversations with the two former AIPAC lobbyists. The defense lawyers have said they want to call them and other high-level current and former Bush administration officials as witnesses. The lawyers want to show that the kind of conversations Bush officials had with the AIPAC lobbyists (about Mideast issues, including the terrorist ties of the Iranian government) were common.

This isn't the first time Leonard has been the center of controversy. Leonard become embroiled in a bitter dispute with Cheney's chief of staff, David Addington, when he sought to conduct a mandatory inspection of the vice president's office to determine if it was complying with an executive order governing the handling of classified information. Addington refused to provide Leonard's aides with access, claiming that the vice president's office was not covered by the executive order because, technically speaking, Cheney was not part of the executive branch. Addington argued that, under the Constitution, the only official function of the vice president was to preside over the Senate so therefore Cheney was really part of the legislative branch. When Leonard challenged Addington's creative argument and sought an official Justice Department legal ruling on the matter, Addington sent an e-mail suggesting that Leonard's office (and his job) be abolished. The dispute, which was made public last year by House Government Reform Committee chairman Rep. Henry Waxman, created an uproar. Ultimately, Leonard told NEWSWEEK, it was a "contributing factor" in his decision to resign after 34 years of government service.

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