Lobbyists' Trial Could Embarrass U.S. Envoy

The upcoming trial of two pro-Israeli lobbyists accused of sharing classified U.S. government information with Israeli diplomats is causing anxiety within the State Department in the wake of a subpoena to a top U.S. diplomat who now serves as Washington's deputy ambassador to Iraq.

The diplomat, David Satterfield, was one of a number of high level U.S. government officials—including Secretary of State Condoleezza Rice, national security advisor Stephen Hadley and national security advisor for near east affairs Elliot Abrams—who were recently subpoenaed by lawyers representing the accused lobbyists, Steven J. Rosen and Keith Weissman, both of whom worked for the American Israel Public Affairs Committee (AIPAC.) Both have pleaded not guilty to charges of conspiring to communicate national defense information.

The subpoenas underscore the high stakes for the Justice Department in prosecuting the lobbyists under the World War I-era Espionage Act—a rarely used and vaguely-worded law that prohibits the dissemination of classified "national defense information." The case is unusual because the persons charged are not U.S. government officials but private lobbyists who could only have learned whatever classified information they had from others inside the government. Some legal commentators have cited the use of the law in these circumstances as unprecedented and one of the most controversial moves yet in the Bush administration's ongoing campaign to crack down on the flow of classified information.

A White House official last week called the subpoenas to Rice, Hadley and Abrams a "stunt" by defense lawyers that is unlikely to be upheld by the judge when the case goes to trial next month. But the subpoenas to Satterfield, and perhaps some others, are in a different category and could prove deeply embarrassing to the Bush administration.

Two legal sources close to the case confirmed to NEWSWEEK previous media reports that Satterfield is the anonymous official referred to in the indictment as "U.S. government official –2" (USGO-2) who had two meetings with Rosen in early 2002 in which classified information allegedly was discussed.

At the time, Satterfield was serving as deputy assistant secretary of State for near east affairs specializing in Israeli-Palestinian issues. In one of the meetings, on January 18, 2002, Rosen discussed "classified information," with USGO-2, according to the indictment. The indictment does not specify the subjects of discussion, but a source familiar with the meeting—who asked not to be identified because of legal sensitivities— says they included the circumstances surrounding the recent seizure by the Israeli government of the Karine A—a boat loaded with Iranian-made rockets, anti-tank grenades and C-4 explosives that Israeli officials charged was destined for the Palestinian Authority headed by Yasir Arafat. Press reports at the time indicated that the U.S. government had assisted the Israeli government in tracking the arms-laden trip and that there was intelligence indicating that the shipment may have originated in Iran. The shipment touched off an intense debate within the Bush administration about whether to sever relations with Arafat after White House officials became convinced that the Palestinian leader was lying about his knowledge of the shipment.

According to the indictment, it was after that meeting that Rosen, who at the time was AIPAC's director of foreign policy issues, wrote a memo to fellow AIPAC employees that "contained classified information" that had been provided by USGO-2, the man identified to NEWSWEEK as Satterfield. Five days later, on January 23, 2002, the indictment states, Rosen had a conversation with an unidentified foreign national in which he also disclosed classified information provided to him in the same January 18 meeting with USGO-2.

The indictment further states that Rosen had another meeting with USGO-2 on March 12, 2002 and "discussed classified information regarding Al Qaeda." A day later, according to the indictment, Rosen then disclosed the classified information about the terrorist group to a colleague at AIPAC and, the next day, to an unidentified foreign government official, who has been identified in press reports as working at the Israeli Embassy in Washington.

A spokeswoman for the U.S. Embassy in Baghdad said Satterfield would have no comment about his subpoena or any other matter related the case. A State department official close to Satterfield described him as a highly respected and extremely careful diplomat with a long background in Mideast issues. The official, who asked not to be identified, said the references to him in the case had troubled and puzzled many of his colleagues inside the State Department.

But Abbe Lowell, the defense lawyer for Rosen, said the allegations in the indictment underscore a "peculiar contradiction" in the case that "makes no sense." How, he asked, can his client, a private citizen, be charged with disseminating classified information when the government official who allegedly gave it to him in the first place is not charged at all? (A Justice spokeswoman said the department would have no comment because the matter remains an "ongoing investigation.")

The question is likely to emerge center stage later this week when defense lawyers argue that the entire case should be thrown out on the grounds that the government is using the Espionage Act to effectively criminalize free speech activities that are commonplace in Washington. . Like many others—including lobbyists, journalists and policy analysts—Rosen and Weissman had frequent conversations with U.S. government officials about national security issues that may have touched on classified matters. But the burden should be on the government officials to protect the information—not private citizens who receive it, the lawyers argue. "If the prosecutors are successful," Lowell said, "then no journalist, no think tank, no lobbyist is safe."

The case against Rosen and Weissman grew out of the Justice Department's prosecution of Larry Franklin, a former Defense Department analyst who pled guilty last October to passing classified information to an Israeli diplomat as well as Rosen and Weissman. The FBI had learned of Franklin's activities during the course of a long-running intelligence investigation that apparently was focused on the Israeli Embassy in Washington. A spokesman for the Israeli Embassy in Washington told NEWSWEEK last week that the embassy had been assured by the U.S. government that none of its past or current diplomats were under scrutiny for improper conduct.

The prosecution has stirred concerns among press organizations that fear that the use of the Espionage Act could be the springboard to prosecute journalists for doing essentially the same thing that Rosen and Weissman are charged with doing—disseminating classified information they learn from U.S. government officials. For example, press groups say that by applying the same theory the Justice Department could use the Espionage Act to prosecute journalists for publishing stories about the Bush administration's warrantless wiretapping program or the CIA's use of secret prisons abroad to hold terror suspects. One such journalists' group, the Reporters' Committee for Freedom of the Press, has filed a motion to be heard in the Rosen-Weissman case objecting to the use of the law against the lobbyists, saying that the indictments "raise issues that could well affect the very nature of how journalism is practiced." The group's brief added: "While the government certainly has a legitimate interest in keeping national security information out of the wrong hands, an overly aggressive approach that interferes with the flow of information to the public and its ability to hold its government accountable can undermine the democratic principles we all seek to defend.'

But so far, there is little hint that these arguments have made much headway with the judge in the case. During one recent hearing Judge T.S. Ellis, said that any person who might "come into possession" of classified information "must abide by the law." The judge added: "They have no privilege to estimate that they can do more good with it. So that applies to academics, lawyers, journalists, professors, whatever."