U.S. v. Rosen
| Decision Date | 02 November 2007 |
| Docket Number | No. 1:05cr225.,1:05cr225. |
| Citation | 520 F.Supp.2d 802 |
| Parties | UNITED STATES of America v. Steven J. ROSEN and Keith Weissman. |
| Court | U.S. District Court — Eastern District of Virginia |
John N. Nassikas, III, Arent Fox PLLC, Erica Emily Paulson, McDermott Will & Emery, Washington, DC, for Keith Weissman.
In the pretrial stage of this Espionage Act1 prosecution, defendants have requested the issuance of witness subpoenas for twenty current and former government officials. The government has objected to sixteen of these subpoenas arguing, inter alia, that the proffered testimony of these persons is irrelevant, immaterial, or at best, cumulative. At issue, therefore, is whether the sixteen disputed subpoenas should issue. For the reasons set forth in this memorandum opinion and related classified order, the government's objection is sustained in part and overruled in part.
A brief summary of the offenses charged in the Superseding Indictment (the "Indictment") provides necessary context for the resolution of this issue. Defendants Steven J. Rosen and Keith Weissman have been charged with conspiracy to communicate information relating to the national defense ("NDI") to persons not authorized to receive it, in violation of 18 U.S.C. § 793(g) and (e).2 Rosen has also been charged with aiding and abetting Lawrence Franklin in his unauthorized communication of NDI to persons not authorized to receive it, in violation of 18 U.S.C. §§ 793(d) and 2.3
Throughout the course of the alleged conspiracy, defendants were employed by the American Israel Public Affairs Committee (AIPAC), in Washington, D.C. AIPAC is a pro-Israel organization that lobbies Congress and various Executive Branch agencies on issues relating to Israel and U.S. foreign policy in the Middle East. The Indictment alleges that, in order to further AIPAC's policy goals, Rosen and Weissman engaged in a conspiracy between April 1999 and August 27, 2004, to obtain NDI and communicate it to persons not authorized to receive it. In general, the Indictment alleges that the defendants cultivated relationships with various sources within the United States government and elsewhere to gather NDI, which they then communicated to co-workers, journalists, and foreign government officials, none of whom were authorized to receive such information.
More specifically, the Indictment describes fifty-seven overt acts in furtherance of the alleged conspiracy, including telephone calls and in-person meetings, during which information the government alleges to be NDI was obtained by defendants, who were not authorized to receive it, and who then disclosed the NDI to persons who were also not authorized to receive it. These overt acts are briefly summarized here.
Overt Acts 1-5 allege that in April 1999, Rosen told a foreign official ("FO-1") that he had "picked up an extremely sensitive piece of [U.S.] intelligence," which he described as "codeword protected intelligence," about terrorist activities in Central Asia. Indictment, at 8, ¶ 1. Rosen disclosed this intelligence to the official and the two discussed it during two separate meetings in April and May 1999. In June 1999, Weissman allegedly told FO-1 that he had learned from three different sources, including U.S. government officials, that a "secret FBI, classified FBI report" concerning the Khobar Towers bombing had been prepared. Id,. at 8, ¶ 3. Weissman later told FO-1 that he had interested a member of the media in the classified report on the bombing. Then, in December 2000, Rosen and Weissman met with a U.S. government official (USGO-1), who had access to a classified U.S. government paper discussing strategy options against a Middle Eastern country and internal government deliberations on those options. After that meeting, Rosen allegedly disclosed information concerning this classified strategy to a member of the American media.
In Overt Acts 6-14, the government alleges that in January 2002, Rosen met with a second U.S. official (USGO-2). Following this meeting, Rosen circulated a memorandum containing classified information discussed in this meeting to fellow AIPAC employees. Rosen also allegedly disclosed the classified information obtained during this meeting to a foreign national. About two months later, in March 2002, Rosen met with USGO-2 and the two discussed classified information concerning Al-Qaeda. Within days following that meeting, Rosen allegedly disclosed this information to a fellow AIPAC employee and to a second foreign official ("FO-2").
Overt Acts 15-34 allege that in February 2003, Rosen and Weissman met with Franklin and a Department of Defense official. Rosen stated that he was excited to meet with a "Pentagon guy" who was a "real insider." Id., at 10, ¶ 16. At this meeting, Franklin disclosed alleged NDI relating to a classified, draft of an internal U.S. government policy document concerning a Middle Eastern country. Between February and June of 2003, defendants continued to meet with Franklin on this issue.4 Defendants also allegedly disclosed the existence of this document and the internal deliberation surrounding it to FO-1, FO-2, a senior fellow at a Washington think tank, and two members of the media.
Overt Acts 35-37 allege that in June 2003, Franklin told Rosen and Weissman that he had "highly classified" information concerning potential attacks upon United States forces in Iraq. Franklin asked Rosen and Weissman not to use this information. In response to this meeting, Rosen and Weissman discussed that the information Franklin had given them was "quite a story," and decided to keep the relationship with Franklin "wide open insofar as possible." Id. at 14, ¶ 36. In furtherance of this goal, the Indictment alleges that Weissman took Franklin to a major league baseball game.
Overt Acts 38-40 allege that in October 2003, Franklin discussed the aforementioned internal policy document with another foreign official ("FO-3"). In May 2004, Franklin allegedly gave reporters Top Secret/SCI5 information. The Indictment also alleges that in June 2004, Franklin unlawfully retained classified documents at his home in West Virginia.
Overt Acts 41-48 allege that on July 9 and 21, 2004, Franklin, by then cooperating with the government, met with Weissman and disclosed to him information concerning several Middle Eastern countries. Weissman relayed this information to Rosen, who in turn disclosed the information to FO-3, a member of the media, and other AIPAC employees.6
To date, there have been extensive pretrial proceedings in this case, including the government's provision of substantial discovery to defendants in the form of documents and recordings, the bulk of which are classified.7 As a result of these proceedings, defendants have requested the issuance of subpoenas to twenty current and former high-ranking government officials. From the Department of State, defendants seek subpoenas for:
(i) Condoleezza Rice, Secretary of State (then-National Security Advisor)
(ii) Richard Armitage, former Deputy Secretary of State
(iii) William Burns, U.S. Ambassador to Russia
(iv) Marc Grossman, former Undersecretary of State for Political Affairs
(v) Lawrence Silverman, Deputy Chief of Mission of the U.S. Embassy to the Slovak Republic
(vi) Matthew Bryza, Deputy Assistant Secretary of State
(vii) Marc Sievers, Political Officer, U.S. Embassy to Israel
(viii) David Satterfield, Senior Advisor to the Secretary of State and Coordinator for Iraq (then-Deputy Assistant Secretary of State, Bureau of Near Eastern Affairs)
(ix) Dennis Ross, former U.S. Ambassador
(x) Edward Walker, former U.S. Ambassador to the UAE, Egypt, and Israel, and former Assistant Secretary of State
(xi) Mark Parris, former U.S. Ambassador to Turkey
From the National Security Council, defendants request subpoenas for:
(i) Stephen Hadley, National Security Advisor (then-Deputy National Security Advisor)
(ii) Elliott Abrams, Deputy Assistant to the President and Deputy National Security Advisor for Global Democracy Strategy Affairs
(iii) Bruce Reidel, former Special. Assistant to the President and Senior Director for Near East and South Asian Affairs on the National Security Council Staff
(iv) Kenneth Pollack, former Director for Persian Gulf Affairs for the National Security Council
From the Department of Defense, the officials for whom subpoenas are requested are:
(i) Paul Wolfowitz, former Deputy Secretary of Defense
(ii) Douglas Feith, former Undersecretary of Defense
(iii) Michael Makovsky, former employee of the Office of the Secretary of Defense, Office of Near East and South Asia
(iv) Lawrence Franklin, former Department of Defense employee
Finally, defendants seek to subpoena retired U.S. Marine Corps General Anthony Zinni.
The government objects to the issuance of subpoenas to all but four of these officials,8 arguing, inter alia, that the proffered testimony is neither material nor favorable to the defense. Moreover, the government contends that even where some testimony from these persons might be material and favorable, that testimony would nonetheless be cumulative and hence the subpoenas should not issue, especially as the persons involved are current or former high-ranking government officials. Defendants counter that each of the prospective witnesses will offer testimony that is both material and favorable to their defense. They claim the testimony of these persons will negate the government's contention that the information defendants obtained and disclosed was NDI by showing that this information was neither closely held by the U.S. government, nor were the disclosures of this information damaging to the U.S.
Defendants also submit that these current and former officials'...
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