Oped Submitted to Fred Hiatt, Editor - Washington Post on 3/11/2009 at 1:58 PM.  Rejected on 3/12/2009 at 6:06PM

The AIPAC Trial Should Proceed

Dismissing charges against Steven J. Rosen and Keith Weissman would harm the public interest.  In 2005 the two staffers of the American Israel Public Affairs Committee (or AIPAC) were indicted along with Colonel Lawrence Franklin for alleged violations of the 1917 Espionage Act.  Franklin has since received a fine and prison sentence.  Important questions surrounding Rosen and Weissman's alleged involvement in obtaining and distributing classified information are unresolved.  The Washington Post editorial board and many others have called for dismissal of the charges as threats to freedom of the press and against government secrecy.  This is misguided.  Dismissing the trial would actually contribute to government secrecy while delaying critical questions about lobbying and freedom of speech.  The Department of Justice would be seen as granting a special backroom deal.  That perception is warranted since AIPAC partly owes its existence to government secrets.

In 1962 Attorney General Robert F. Kennedy approved an order[1] requiring the American Zionist Council (AZC)—a lobbying organization comprised of elite Zionist groups—to register as foreign agents.  The 1938 Foreign Agents Registration Act was intended to shield the Congress and American people from foreign funded propaganda and stealth political initiatives.  The Senate Foreign Relations Committee conducted a wide ranging investigation into international lobbyists seeking taxpayer financed arms, aid, and reparations from foreign states.  Senate hearings documented illicit financial flows into US grassroots organization building.[2]  The AZC fought the FARA order[3] but in March of 1965 filed abbreviated financial statements with the Department of Justice.[4]  The AZC also requested that the names of individuals and organizations receiving funding (totaling over $5 million) be kept secret.[5]  The DOJ agreed and classified until 2008 the most sensitive portion of a filing that normally would have been open to public inspection. [6] 

Whether the AZC overstepped the limits of the Foreign Agents Registration Act in boosting and coordinating advocacy in the United States was never aired in court.  The AZC quietly shut down and migrated Capitol Hill lobbying into the nascent AIPAC.  AIPAC's power and reputation grew, propelled by other government secrets that continue to limit its public accountability.

In 1983 Israeli Prime Minister Yitzhak Shamir and AIPAC lobbied the Reagan administration for a free trade area to reduce tariffs in both countries. On Jan. 31, 1984 the U.S. Trade Representative commissioned the U.S. International Trade Commission (ITC) to conduct an investigation to advise the president about the probable economic effect and industry impact.

U.S. industry groups were alerted via the Federal Register about the proposed trade agreement and urged to provide written comments and appear at public hearings. The ITC compiled reams of "business confidential" information from highly concerned U.S. corporations and industry associations into a classified 300 page report that it transmitted to the USTR for use in negotiating the deal on May 30, 1984.  Only fifteen numbered and carefully circulated copies were ever printed, but on Aug. 3, 1984, the Washington Post[7] broke the news that the FBI was investigating how AIPAC obtained a copy. The ITC later confirmed that secrets[8] were also held by the Israeli government.

Israel and AIPAC subsequently leveraged the highly sensitive inside information[9] [10] into an agreement that has produced ongoing disputes over intellectual property rights.  It is the only bilateral agreement producing multi billion dollar deficits every year over the last decade. There is no lingering doubt about the sensitivity of the classified report– an attempt to declassify it under the Freedom of Information Act was denied on "national security" grounds, among other reasons by the ITC and USTR.  Ironically, Americans assessing the trade deal cannot view a classified government document obtained by AIPAC a quarter century ago.[11]

Shutting down the US v Rosen and Weissman trial before it even begins would again short circuit AIPAC accountability.  Far from rolling back government secrets, it would create more at a time public confidence is already in tatters.  Did the AIPAC lobbyists cross a red line in their advocacy activities?  Is the Espionage Act obsolete?  Was there an improper effort to leverage classified information into US military action against Iran?  Does the US government over classify information?  Are the media and public manipulated by lobbyists selectively trafficking secrets?  These are important questions that only a long overdue public trial can answer. 

Grant F. Smith is Director of IRmep, a nonprofit that studies U.S. policy formulation toward the Middle East.