U.S. v. Rosen

• Decision Date: 09 August 2006
• Docket Number: No. 1:05CR225.,1:05CR225.
• Citation: 445 F.Supp.2d 602
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES OF AMERICA, v. Steven J. ROSEN, Keith Weissman.

445 F.Supp.2d 602

UNITED STATES OF AMERICA, v. Steven J. ROSEN, Keith Weissman.

No. 1:05CR225.

United States District Court, E.D. Virginia.

August 9, 2006.

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Kevin Digregory, William N. Hammerstrom, Jr., United States Attorney's Office, Alexandria, VA, for United States of America.

John N. Nassikas, III, Arent Fox PLLC, Washington, DC, for Steven J. Rosen, Keith Weissman.

MEMORANDUM OPINION

ELLIS, District Judge.

In this Espionage Act prosecution, defendants Steven Rosen and Keith Weissman have been charged in Count I of a superseding indictment with conspiring to transmit information relating to the national defense¹ to those not entitled to receive it, in violation of 18 U.S.C. § 793(g). Defendants, by pretrial motion, attack the constitutionality of § 793 in three ways. First, they argue that the statute, as-applied to them, is unconstitutionally vague in violation of the Due Process Clause of the Fifth Amendment. Second, they argue that the statute, as-applied to them, abridges their First Amendment right to free speech and their First Amendment right to petition the government. Third, defendants assert the First Amendment rights of others by attacking the statute as facially overbroad. In the alternative, defendants urge the Court to avoid these constitutional issues by interpreting the statute as applying only to the transmission of tangible items, i.e., documents, tapes, discs, maps and the like.

In addition, defendant Rosen has been charged in Count III of the superseding indictment with aiding and abetting the transmission of information relating to the national defense to one not entitled to receive it, in violation of 18 U.S.C. § 793(d) and 2. He seeks dismissal of this count on the ground that the facts alleged in the superseding indictment in support of this count are legally insufficient.

I.²

During the period of the conspiracy alleged in Count I, defendants 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, especially U.S foreign policy with respect to the Middle East. Rosen was AIPAC'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. Indeed, Rosen's security clearance had been terminated on or about July 6, 1982. Defendant Weissman was AIPAC'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.³

In general, the superseding indictment alleges that in furtherance of their lobbying activities, defendants (i) cultivated relationships with government officials with access to sensitive U.S. government information, including NDI,⁴ (ii) obtained the information from these officials, and (iii) transmitted the information to persons not otherwise entitled to receive it, including members of the media, foreign policy analysts, and officials of a foreign government.

The government's recitation of the acts constituting the conspiracy begins on April 13, 1999, when Rosen told an unnamed foreign official (OF-1) that he had "picked up an extremely sensitive piece of intelligence" which he described as "codeword protected intelligence." Rosen proceeded to relate this piece of intelligence, which concerned terrorist activities in Central Asia, to the foreign official. Rosen and OF-1 continued this discussion over lunch a few weeks later. The superseding indictment alleges further that Weissman's role in the conspiracy became apparent on June 11, 1999, when Weissman told the same foreign official that he had obtained a "secret FBI, classified FBI report" relating to the Khobar Towers bombing from three different sources, including a member of the United States government. Later that day, Weissman told OF-1 that he had interested a member of the media in the report.

According to the superseding indictment, roughly eighteen months later, on December 12, 2000, Rosen and Weissman met with a United States government official (USGO-1) who had access to classified information relating to U.S. strategy pertaining to a certain Middle East country. Following this meeting, Rosen allegedly had a conversation with a member of the media in which he communicated classified information relating to the U.S. government's deliberations on its strategy towards that particular Middle Eastern country.

The next overt act in furtherance of the alleged conspiracy occurred over one year later, when, on January 18, 2002, Rosen met with another U.S. government official (USGO-2). After this meeting, Rosen prepared a memorandum referencing classifled information provided by USGO-2 and distributed this memorandum to AIPAC staff. A few days later, Rosen relayed some of the information provided by USGO-2 to a foreign national. Rosen met again with USGO-2 on March 12, 2002 and discussed classified information regarding Al-Qaeda. Rosen allegedly disclosed this classified information to a fellow AIPAC employee the next day, and to another foreign embassy official (OF-2) the day after that.

In August 2002, Rosen was introduced to Franklin through a contact at the DOD. The two agreed to meet on August 21, 2002, but the meeting was postponed. Rosen, Weissman, Franklin and another DOD employee finally met nearly six months later, on February 12, 2003. At this meeting, Franklin disclosed to Rosen and Weissman information relating to a classified draft internal United States government policy document concerning a certain Middle Eastern country. He told Rosen and Weissman that he had prepared a separate document based on the draft policy document. The three alleged co-conspirators met again on March 10, 2003 at Union Station in Washington, D.C. The three men conducted the meeting in successive restaurants and ended the meeting in an empty restaurant. Later that week, Rosen met with FO-2 and discussed the same draft internal policy document that Franklin had discussed with Rosen and Weissman. Both Rosen and Weissman had similar conversations with FO-1 later that same day. Rosen also called a senior fellow at a Washington, D.C. think tank and discussed the information concerning the government's internal policy deliberations that had been provided by Franklin.

A week after his meeting with Rosen and Weissman at Union Station, Franklin faxed to Rosen's AIPAC office fax machine a document he had produced which contained information derived from the appendix of the U.S. draft internal policy document Franklin had discussed in his February meeting with Rosen and Weissman. The next day, Rosen discussed this information with a member of the media, prefacing his discussion with the statement, "I'm not supposed to know this." Rosen had a similar discussion with another member of the media on May 30, 2003.

In June 2003, Franklin, Rosen and Weissman arranged another lunch meeting. This meeting took place on June 26, 2003 at a restaurant in Arlington, Virginia. At the outset of the meeting Rosen told Franklin that he understood the difficult "constraints" under which Franklin was meeting, but notwithstanding these constraints, the three men proceeded to discuss the same draft internal policy document, as well as a newspaper article discussing the same classified document. The lunchtime discussion soon broadened to include internal United States policy deliberations, and at some point during the lunch, Franklin allegedly disclosed to Rosen and Weissman classified information relating to potential attacks on United States forces in Iraq. He told Rosen and Weissman that the information was "highly classified" and asked them not to use it. Later that day, Rosen described this information as "quite a story" and referring to Franklin, told Weissman "that this channel is one to keep wide open insofar as possible." Consistent with this advice, Weissman took Franklin to a major league baseball game a few days later.

At some point over the next year, Franklin was approached by law enforcement and he thereafter agreed to cooperate with the Federal Bureau of Investigation (FBI) in its investigation of Rosen and Weissman. On or about July 9, 2004 Weissman and Franklin, now acting as a cooperating witness, agreed to meet. At this meeting Franklin disclosed to Weissman NDI involving United States intelligence related to certain Middle Eastern countries. On July 21, 2004, Franklin again met with Weissman and allegedly disclosed to him classified national defense information concerning a foreign government's covert actions in Iraq. Before disclosing the information, Franklin warned Weissman that the information he was about to receive was highly classified "Agency stuff' and that Weissman could get into trouble by having the information. Following the meeting, Weissman returned to his office and related to Rosen what he had learned from Franklin. During the course of the day, Rosen and Weissman disclosed this information to another foreign official (FO-3) and a journalist, describing the information as "Agency information" and telling the journalist that the source of the information was "an American intelligence source" who was "100 percent credible." Weissman also told a fellow AIPAC employee what he had learned earlier that day from Franklin....