Witness for the Defense

Following my retirement last year from a 34-year Federal career, all of which was spent immersed in the arcane world of government secrecy, to include responsibility for the government-wide oversight of the classification of national security information, the last thing I thought I would find myself doing was opposing the Federal government’s efforts in an Espionage Act case; especially one involving two men I never met and who worked for an organization that had some views with which I did not necessarily agree. Yet, after being asked by the defense to review the Government’s evidence in what had become known as “the AIPAC case,” that is exactly where I found myself, soon followed by veiled threats from the prosecution that if I testified for the defense, I too could face potential prosecution and up to a year in jail. Fortunately, a subsequent order from the presiding judge negated that possibility.

The Government’s premise in this case was that non-Government officials who do not possess security clearances, such as lobbyists, reporters, and think-tank specialists, can be criminally culpable for further disseminating information shared with them by Government officials, even if they solely received the information by word-of-mouth and were not necessarily informed in the first place that it was supposedly classified . Never before had the Justice Department brought such a criminal case and to me, the actions of Keith Weissman and Steven Rosen clearly should never have served as the basis for the Government’s attempt to initially establish such a far-reaching precedent.

Supporters of the Government’s case have stated that organizations such as AIPAC should not be able to determine what is classified and what is not. I agree – that is the role of the government. However, I became involved in this case because it was clear to me that the government had failed to adequately determine exactly what was and was not properly classified information. All too often, in dealing with the public or the two co-equals branches of government, Executive branch officials simply assert classification. Equally disturbing, the judiciary and the Congress often reflexively defer to such claims. Fortunately, in the AIPAC case, Judge T. S. Ellis 3^rd refused to allow the Government to make such an assertion. After reviewing the evidence in detail, I became convinced that the Government would not be able to demonstrate that the specific information the defendants were accused of disclosing was indeed classified in accordance with the process set forth by the President or that, in other instances, it would be easy for the defense to demonstrate that the information was already widely known and thus part of the vast morass of official information subject to the frequent abuse of over-classification. To be effective, the national security tool of classification must be used with precision and in accordance with the standards and limitations set forth by the President.

The Government’s decision to dismiss the charges in this case emphasizes the importance of the recent decision of the 9th Circuit Court of Appeals Panel in the case Mohamed v. Jeppesen Dataplan, Inc. Once again, in rejecting an overly broad State Secrets claim, a co-equal branch of government rejected a simple assertion by the Executive that disclosure of information would harm the national security. Both Congress and the courts can play a real role in combating abuses in government secrecy and must replace ready deference to assertions by the Executive with robust scrutiny of claims to secrecy based on national security considerations.

Finally, the public would have been much better served if the Government had used the resources committed to prosecuting the AIPAC case and instead devoted them to training those Government officials who duties require that they interact with non-government entities such as the media, think-tanks, lobbyists as well as foreign representatives in order to educate them in how, in the performance of their official duties, it can often be possible to disclose information obtained through intelligence sources and methods without compromising the actual sources and methods. When assigned to the Pentagon, I attempted to institute such a program and was ridiculed by some for “wanting to facilitate leaks.” Such narrow thinking fails to recognize that classified intelligence is collected, in large part, to inform policymakers and you cannot expect officials to erase such information from their minds when dealing with non-cleared individuals, especially when it is not the information itself that is classified but rather the means by which it was obtained. Instead, a little training can go a long way to giving officials such as State Department and other administration representatives the knowledge necessary for them to fulfill their duties to disseminate and gather, from both official and non-official sources, the information necessary for informed policy decisions without inadvertently compromising sensitive intelligence sources and methods.