Constitutional Questions Show in AIPAC Case

Associated Press
Date: 03-24-06

By MATTHEW BARAKAT, Associated Press Writer

Fri Mar 24, 6:25 PM ET

ALEXANDRIA, Va. - A federal judge on Friday questioned the constitutionality of a law under which two former lobbyists with a pro- Israel group have been charged with receiving and disclosing national defense information.

U.S. District Judge T.S. Ellis III said the law, enacted by Congress during World War I, may be unconstitutionally broad and vague, especially given its potential impact on First Amendment rights.

Ellis questioned prosecutors about the law during a pretrial hearing for Steven Rosen and Keith Weissman, two former lobbyists with the American Israel Public Affairs Committee, who each face felony trials next month.

Defense lawyers argued that the charges against their clients should be dismissed because of the law's defects. In particular, they say the law's prohibition on receiving and disclosing "national defense information," even information that is unclassified, is far too broad and vague.

The law's defects are exacerbated because they infringe on the former lobbyists' constitutional rights to lobby the government and because prosecutors are seeking to criminalize conduct that is part and parcel of Washington politics ? namely, leaks of classified information.

Rosen's lawyer, Abbe Lowell, said it is fundamentally unfair that "one day the government stops the music and says you've now crossed the line," when for decades such conduct has been considered acceptable.

The indictment against Rosen, of Silver Spring, Md., and Weissman, of Bethesda, Md., alleges that they conspired to obtain classified government reports on issues relevant to American policy, including the al-Qaida terror network; the bombing of the Khobar Towers dormitory in Saudi Arabia, which killed 19 U.S. Air Force personnel; and U.S. policy in Iran.

The pair are accused of sharing the information with reporters and with foreign diplomats.

A former Defense Department official, Lawrence A. Franklin, pleaded guilty to providing Rosen and Weissman classified defense information and was sentenced to more than 12 years in prison. Franklin has said he was concerned that the United States was insufficiently concerned about the threat posed by Iran and hoped that leaking information might eventually provoke the National Security Council to take a different course of action.

Ellis said he considers the defense request for dismissal "a very important motion" and said he thinks it must be reviewed with strict scrutiny because the law could infringe on First Amendment rights. Prosecutors allege that the illegal disclosures occurred in oral discussions.

Prosecutor Kevin DiGregory argued that the law regulates conduct, not speech, and therefore does not merit the same level of scrutiny. He also said that "the national security interests of the United States" require that the law be upheld.

Ellis ordered both sides to file additional written briefs on the issue by March 31, and he will rule some time after that.

The law has rarely been used, and has never before been applied to lobbyists. Ellis said the case has moved into "new, uncharted waters."

The charges against Rosen and Weissman have rattled not only U.S.-Israel relations but also the lobbying community, which fears the potential fallout of criminalizing such conduct.


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