No Comment — May 5, 2009, 1:01 pm

Justice Dismisses the AIPAC Case–and That’s a Good Thing

The Jewish Telegraphic Agency reports:

Prosecutors asked a judge to drop charges against two ex-AIPAC staffers accused of passing along classified information. In a statement Friday, the acting U.S. attorney in the Eastern District of Virginia said restrictions on the government’s case imposed by Judge T.S. Ellis III made conviction unlikely.

“Given the diminished likelihood the government will prevail at trial under the additional intent requirements imposed by the court and the inevitable disclosure of classified information that would occur at any trial in this matter, we have asked the court to dismiss the indictment,” Dana Boente said.

This case recently gained public attention once more due to the disclosures concerning Representative Jane Harman. An FBI wiretap apparently disclosed a conversation in which Harman was promised the support of AIPAC in her efforts to secure the chair of the House Intelligence Committee as part of a quid pro quo in which she would intervene with the Justice Department to secure dismissal of the criminal case. She concluded by saying “This conversation doesn’t exist.” Harman aggressively denied these reports and denied ever intervening in any way with the Justice Department to secure dismissal of the AIPAC case. Talkingpointsmemo’s Zachary Roth has speculated that these disclosures were leaked by persons close to Porter Goss who were eager to damage Harman’s reputation.

An FBI probe into Harman’s involvement was squelched by then-Attorney General Alberto Gonzales, who reportedly told then-CIA Director Porter Goss “we need Jane” to address the storm he anticipated would follow disclosure of the Bush Administration’s warrantless—and felonious—surveillance program.

But the dismissal of the AIPAC case is good news, whatever one thinks about AIPAC and the two former AIPAC officials involved, because this case was a carefully cloaked assault on the First Amendment.

Beginning in 2004, the Bush Administration viewed press disclosures of its darkest secrets (its secret program to torture prisoners and its systematic breach of the restrictions of FISA, for instance) as a grave threat to its political viability. As I noted in “The Plot Against the First Amendment,” the Gonzales Justice Department looked longingly upon Britain’s Official Secrets Act (“OSA”), which has long given the British government far more effective powers in silencing the press when classified materials surface. Gonzales began a search to create, through legal precedent, something much closer to the OSA in the United States. The Gonzales Justice Department sought to establish standards under which journalists could be prosecuted for receiving and using classified materials. As the then-U.S. Attorney for the Eastern District Paul J. McNulty stated in a submission to the court:

The government respectfully submits that an ‘ordinary person exercising ordinary common sense’ [...] would know that foreign officials, journalists and other persons with no current affiliation with the United States government would not be entitled to receive information related to our national defense.

That would reverse the major difference between the United States and Britain on this point.

Fortunately, in this case, the District Court saw through the immediate case to its broader objective and handed down a series of rulings which would have made prosecution of the case impossible. Although the Justice Department claims this decision resulted from a normal review of the case, I can’t for a second imagine the Bush Justice Department deciding to dismiss the case. Equally, I couldn’t imagine the Obama Justice Department ever bringing it. Again, no matter what you think about AIPAC and the machinations of its two ex-employees, the outcome is to be welcomed.

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