U.S. v. Rosen

599 F.Supp.2d 690

UNITED STATES of America v. Steven J. ROSEN and Keith Weissman.

Case No. 1:05cr225.

United States District Court, E.D. Virginia, Alexandria Division.

February 17, 2009.

COPYRIGHT MATERIAL OMITTED

John N. Nassikas, III, Arent Fox PLLC, Erica Emily Paulson, McDermott Will & Emery, Washington, DC, for Keith Weissman.

MEMORANDUM OPINION

T.S. ELLIS, III, District Judge.

In this Espionage Act¹ prosecution, defendants Steven J. Rosen and Keith Weissman seek to introduce the expert testimony of J. William Leonard, a retired United States government official with substantial experience and expertise in the field of information classification. Defendants subpoenaed Leonard pursuant to Rule 17, Fed.R.Crim.P., and Leonard has now moved to quash the subpoena on the ground that his testimony may be barred by 18 U.S.C. § 207 (2007), which restricts the activities of former executive branch officers and employees. The government also argues that Leonard's testimony is in fact barred by § 207(a)(1) and that an order directing such testimony, as contemplated in § 207(j)(6)(A), is unwarranted. Defendants oppose Leonard's motion to quash, arguing that § 207(a)(1) does not preclude Leonard's testimony and that an order should nonetheless issue directing his expert testimony pursuant to § 207(j)(6)(A). For the reasons that follow, § 207(a)(1) does not apply to Leonard and accordingly his motion to quash must be denied and the subpoena enforced.

I.

Context useful for the resolution of the question presented is provided by brief summaries of (i) the Indictment's² allegations, (ii) a major disputed offense element and (iii) Leonard's qualifications and forecasted expert testimony.

A. The Indictment's Allegations

The Indictment is not a short document; it spans 26 pages and charges five crimes against three defendants as follows:

(i) Count I charges conspiracy to transmit information relating to the national defense ("NDI")³ to those not entitled to receive it, in violation of 18 U.S.C. § 793(g), against defendants Steven Rosen, Keith Weissman and Lawrence Anthony Franklin.

(ii) Counts II, III and IV charge communicating NDI to those not entitled to receive it, in violation of 18 U.S.C. §§ 793(d) and 2, against defendant Franklin and, with respect to Count III, against defendant Rosen, as well.

(iii) Count V charges conspiracy to communicate classified information to an agent of a foreign government, in violation of 50 U.S.C. § 783 and 18 U.S.C. § 371, against defendant Franklin.

Only Count I against Rosen and Weissman and Count III against Rosen remain, as Franklin has pled guilty and, as a result, the remaining counts have been resolved.⁴

The bulk of the Indictment is devoted to a description of the conspiracy alleged in Count I. This conspiracy is alleged to have commenced in or about April 1999 and continued through August 27, 2004. The 57 overt acts alleged in furtherance of the conspiracy describe a number of separate episodes in which Rosen and Weissman, or one of them, received alleged NDI without authorization and disclosed it to persons not authorized to receive it. Also included in the Indictment are brief descriptions of Rosen's and Weissman's backgrounds.

During the period of the conspiracy, Rosen and Weissman were employed by the American Israel Public Affairs Committee (AIPAC) in Washington, D.C. AIPAC is a pro-Israel organization that lobbies the United States executive and legislative branches on issues of interest to Israel, particularly U.S. foreign policy with respect to the Middle East. Rosen was APAC's Director of Foreign Policy Issues and was primarily engaged in lobbying officials of the executive branch with policy-making authority over issues of interest to AIPAC. Rosen did not have a security clearance during the period of the alleged conspiracy and had not held a security clearance since his employment with the RAND Corporation in the late 1970s and early 1980s. Weissman, in turn, was APAC's Senior Middle East Analyst and worked closely with Rosen in lobbying the executive branch of the U.S. government. Weissman has never held a security clearance. Alleged co-conspirator Lawrence Franklin worked on the Iran desk in the Office of the Secretary of the Department of Defense (DOD) and held a top secret security clearance during the alleged conspiracy.

In describing the conspiracy's means and methods, the Indictment states that in furtherance of their lobbying activities, defendants (i) cultivated relationships with government officials with access to sensitive U.S. government information, including NDI, (ii) obtained this information from these officials, and (iii) then transmitted this information to persons not otherwise entitled to receive it, including members of the media, foreign policy analysts, and officials of a foreign government. As noted, the Indictment's overt acts describe a number of specific episodes in which defendants, or one of them, obtained information alleged to be NDI and then disclosed this NDI to a variety of persons including journalists, foreign government officials, other AIPAC employees and think tank members. The alleged NDI for each of these episodes is described in the Indictment in only very general terms, as follows:

Date            NDI Description
1. April 1999      information concerning "terrorist
                   activities in Central
                   Asia"
2. June 1999       information revealing the
                   existence (but not contents)
                   of a "classified FBI report
                   on the Khobar Towers
                   bombing"
3. December 2000   information concerning U.S
                   "strategy options against a
                   Middle Eastern country and
                   the internal United States
                   government deliberations on
                   those options"
4. March 2002      "classified information
                   regarding Al-Qaeda"
5. February 2003   information related to a
                   "classified draft internal
                   United States government
                   policy document concerning
                   a Middle Eastern country"
6. March 2003      Franklin's typed document
                   concerning contents of an
                   appendix to document
                   described in # 5
7. June 2003       "classified information related
                   to potential attacks upon
                   United States forces in Iraq"
8. July 2004       "classified national defense
                   information concerning a
                   foreign government's covert
                   actions in Iraq"
9. July 2004       "United States intelligence
                   related to certain Middle
                   Eastern countries"

Notably, with one exception, all alleged NDI disclosures to defendants were made orally rather than by way of documents.⁵

B. Disputed Offense Element

It is apparent from the Indictment's allegations, the elements of the charged offenses,⁶ and the parties' forecasted trial testimony that a major battleground at trial will be the parties' dispute over whether the information defendants are alleged to have obtained and disclosed in each of the various episodes qualifies as NDI, i.e., whether that information, at the time defendants allegedly received or disclosed it, was closely held by the United States, and whether its disclosure would be potentially damaging to the United States or useful to an enemy of the United States. This dispute will be expressed at trial largely through the testimony of competing experts. And it is clear from the parties' forecasts of their experts' trial testimony⁷ that this NDI dispute will be a major focus of the trial.

NDI, it is worth noting, is not synonymous with "classified"; information that is classified by the executive branch of government may or may not qualify as NDI. Because the sets of NDI and classified information are the result of distinct processes and different decision-makers, they need not be identical sets. The executive branch has the authority to classify and hold closely information the unauthorized disclosure of which is deemed by the government to have the potential to damage the national security.⁸ By contrast, NDI in a § 793 prosecution is that information, which at the time of an alleged unauthorized disclosure, is found by the jury beyond a reasonable doubt (i) to have been closely held by the government and (ii) to be potentially damaging to the United States or useful to an enemy of the United States if disclosed without authorization. In short, the government designates what information is labeled and treated as classified, while a court or jury determines what information qualifies as NDI in a § 793 prosecution. In such a prosecution, evidence that information is classified does not, by itself, establish that the information is NDI; evidence that information is classified is, at most, evidence that the government intended that the designated information be closely held. Yet, evidence that information is classified is not conclusive on this point; it is open to a defendant to show that the government in fact failed in the attempt to hold the information closely because, for example, the information was leaked or was otherwise in the public domain. Further, the government's classification decision is inadmissible hearsay on the second prong of the NDI definition, namely whether unauthorized disclosure might potentially damage the United States or aid an enemy of the United States.

This discussion serves to underscore the important role experts will play in this case; it makes clear that the parties' NDI disputes, which are central to this case, will be resolved by a jury largely on the basis of expert testimony.

C. Leonard's Qualifications and Forecasted Expert Testimony

Leonard is a former civil servant who was employed by the United States...