Today Judge T.S. Ellis III offered a rare second opportunity to the Rosen and Weissman defense team.  They again made their case that the indictment of the two former AIPAC lobbyists was "trampling on their 1st Amendment rights".   Although Judge Ellis established an August, 2006 trial date he continues to consider a motion to dismiss charges altogether.

In a similar March 30, 2006 hearing[i], the defense concentrated on portraying the 1917 Espionage Act as fundamentally flawed and unconstitutional.  The indictment charges Rosen and Weissman with violating sections of the Act by having "unlawful possession" of "information relating to the national defense." Written in 1917, and never updated, the Espionage Act does not use the term "classified" when referring to national defense information.  The law's musty antiquity offers the defendants abundant openings for attack.   

The mainstream press has come to the aid of Rosen and Weissman by promulgating the "slippery slope" argument.  The Washington Post has argued more than once that the charges leveled against two foreign lobbyists run amok could soon be turned against investigative reporters. 

"The case has drawn attention from First Amendment lawyers because the judge, the prosecutors and the defense attorneys have all noted that the two lobbyists, in receiving and disseminating classified information, are doing what journalists, academics and experts at think tanks do every day."[ii] (Walter Pincus, Lobbyists' Prosecutors Pointing to Spy Case, Washington Post)

The "everybody does it" defense, of course, is pure nonsense.  Prosecutorial discretion means that the press won't be a DOJ target any time soon.   But cracking down on think tanks and lobbies trafficking classified information is another matter.  Shutting down illicit conduits for classified information might benefit the majority of Americans who live "outside the beltway".  The mainstream US press and certain Middle East think tanks spend a great amount of time scouring the branches of government for recruits willing to release highly sensitive classified information of high interest that ultimately finds its way to Israel.  This commonplace behavior should be ended.  Many think tanks, functioning as stealth lobbies, seek an unfair advantage and influence through access to classified information.  Taking away the motivation to seek and leverage classified information would function as a kind of policy "regulation FD" only in this case, small stakeholders in US policymaking, rather than small investors, won't be so easily outmaneuvered by corrupt "inside traders" like AIPAC. 

The Weissman Rosen defense has also sought to throw out the indictment on a number of other technicalities, including allegations that no documents were passed, only verbal information.  The most novel defense claim, asserted by attorney Abbe Lowell (who is also defending Jack Abramoff[iii]), attacked the premise that facilitating the trafficking of classified national defense information from the Pentagon to Israel via lobbyists, could be anything but beneficial to the United States. In breaking the law, Rosen and Weissman are charged with passing information that "could be used to the injury of the United States or to the advantage of any foreign nation."

"There's a disjunctive, your Honor. The disjunctive says 'injure the United States or assist or benefit the advantage of a foreign country.'  How can anybody apply that in a context in which good foreign policy for the United States, that clearly is intended to help make the United States' foreign policy better, may also have a derivative impact that makes it an advantage to an ally of the United States, whose interest are exactly the same?[iv]" Abbe Lowell (line 17 page 22)

This assertion by the defendants may prove to be the core weakness of their upcoming criminal defense.  If Judge Ellis does allow the case to move forward, outside analysts critical of the Israel Lobby, from Mearsheimer and Walt to IRmep, will have the opportunity to educate the court through amicus briefs that Israeli and US interests are often times diametrically opposed.  There is ample evidence to prove beyond a reasonable doubt that the documented subterfuges of the Israel Lobby as personified by Weissman and Rosen not only endanger America, but have eroded the principles of liberty and justice upon which the US was founded.  The illicit overt and covert activities of an unregistered foreign agent committed to misleading Americans through the myth that Israeli and US interests are "exactly the same" can only be revealed and terminated through a high-profile criminal trial.

Grant F. Smith is the author of the new book, Deadly Dogma: How Neoconservatives Broke the Law to Deceive America, on sale at IRmep and leading bookstores.