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DOJ moves to reverse AIPAC espionage case guilty plea and jail time

June 10, 2009
Jun 8, 2009, 00:21
By Grant F. Smith
Online Journal Guest Writer

On May 1, government prosecutors dropped their espionage prosecution of former American Israel Public Affairs Committee (AIPAC) employees Steve Rosen and Keith Weissman.

Many expected a criminal trial to yield unprecedented accountability — AIPAC’s opaque internal operations and unquenchable thirst for classified government information would finally be laid bare. Others saw the unprecedented application of the 1917 Espionage Act against non-government employees as a threat to freedom of speech.

Presiding Judge T.S. Ellis’ pretrial rulings made it nearly impossible for government prosecutors to prevail — requiring them to reveal sensitive government information in court. Curiously, Ellis even wanted prosecutors to prove the defendants’ states of mind and ethereal intentions to harm the US rather than strict statutory culpability under the 1917 Espionage Act. Normally, Americans could now be either thrilled, outraged, or just blissfully unaware that the case has finally ended.

Except that it hasn’t ended.

Those concerned with rule of law were provided mixed relief but subtle hints of future maneuvers. In their formal motion (PDF) that Judge T.S. Ellis drop the case government prosecutors fired a Parthian shot by highlighting the “requirement of meeting an unexpectedly higher evidentiary threshold in order to prevail at trial.”

The New York Times recorded Joseph Persichini Jr. — the top official at the F.B.I.’s Washington office — was “disappointed” while FBI agents were “infuriated.” But the Times also hinted at politicization, reporting the decision chain extended from career attorneys all the way up to Attorney General Eric Holder — who approved dropping the case. Dana J. Boente, Obama’s new acting U.S. attorney for the Eastern District of Virginia was omnipresent at negotiations. Boente’s formal statement seemed to exude remorse “the inevitable disclosure of classified information that would occur at any trial in this matter, we have asked the court to dismiss the indictment.”

The AIPAC investigation did yield Colonel Lawrence Franklin’s guilty plea for leaking classified information to Rosen and Weissman. Franklin was sentenced to a $10,000 fine, 151 months of prison, and three years of supervised release. Surely with Franklin ensconced in jail, few would be again tempted to influence US policies through high stakes classified information gambits. Justice would have been done, to some degree. But is all the scripted remorse and regret just a ruse?

On May 19, a powerful coalition of 125 Rabbis signed a letter to Attorney General Eric Holder requesting a probe into whether “anti-Semitism and/or anti-Israel sentiments” played any role in the original investigation of AIPAC. Michelle Boorstein of the Washington Post published an article titled “Was Case Against AIPAC Lobbyists Anti-Semitic?“ It sternly noted that the case “wasn’t a total loss for the government” because it did win Franklin’s guilty plea. That plea is the only remaining evidence that wrongdoing occurred — but for the Israel lobby, history reveals even this is totally unacceptable.

Last year, shortly before George W. Bush left office, intense lobbying finally won the posthumous pardon of Charles Winters. Winters was convicted of violating U.S. arms embargos for his role in the illicit shipment of aircraft to Jewish fighters in Palestine in 1948.

A Protestant from Boston, Winters didn’t have the lifelong ideological drive of co-conspirators Hank Greenspun and Al Schwimmer. Neither ever served any jail time. Greenspun, a newspaper man in Nevada, won a presidential pardon when John F. Kennedy entered office. Schwimmer simply emigrated to Israel. Both subsequently went on to play major roles in the Israeli arms smuggling segment of the Iran-Contra affair in the 1980s. But the fact that only Winters ever did time for crime (18 months in jail and a $5,000 fine) was a lingering stain that couldn’t be erased. This has relevance for the plight of Lawrence Franklin.

AIPAC and other arms of the Israel lobby can’t now openly lobby President Barak Obama for a Franklin pardon so soon after his administration graciously dropped the case. But AIPAC also can’t wait four to eight years for a pardon or even function effectively while Lawrence Franklin languishes in prison for what many supporters consider heroic behavior.

The Bureau of Prisons — which assigned Franklin inmate number 70425-083 — indicates he is still not yet in custody, Fortunately for Franklin he may never set foot into his assigned minimum security prison in Cumberland, Maryland. Attorney General Eric Holder holds the key to his future.

The Department of Justice has recently admitted errors and asked a federal court to free two Alaskans and review their convictions in connection with the Senator Ted Stevens corruption probe.

Former Deputy Attorney General Eric Holder’s earlier and seemingly inexplicable recommendation that President Bill Clinton pardon tax fugitive Marc Rich once looked both tawdry and even career threatening before he became attorney general in the Obama administration Given recent moves to free other Bush era convictions, the incident looks highly relevant and so is the process to secretly erase Franklin’s guilty plea and sentence in court.

On May 14, US attorneys quietly filed a sealed motion (PDF) “as to Lawrence Anthony Franklin” in the Eastern District of Virginia. Judge Ellis then granted a hearing for June 12 at 9AM. On June 2, they filed a sealed memorandum about Franklin. Though sealed motions are of course secret, it is likely that under the watchful eye of Eric Holder the DOJ’s political appointees are arranging yet another special favor for the Israel lobby in order to steer around the Obama pardon dilemma.

As is now customary, any potential future downsides and details of such a sealed deal are not allowed to be publicly debated. Just as quiet clemency for Schwimmer and Greenspun paved the way for weapons smuggling to Iran, this quiet effort will undoubtedly yield some future crisis.

If Eric Holder springs Franklin he will have issued a facto license to AIPAC — the likes of which haven’t been seen since former Attorney General Nicolas Katzenbach quashed the DOJ’s massive drive to register the entire lobby as Israeli foreign agents. AIPAC can then not only traffic in as much classified US national defense information as it can carry, but execute larger and more audacious covert activities at US taxpayer expense under the immunizing banner of Israel.

In the broadest sense the AIPAC espionage scandal hasn’t ended — it may be only just beginning.

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