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http://www.nytimes.com/2009/05/02/us/politics/02aipac.html
How business is done when AIPAC is involved

WASHINGTON — A case that began four years ago with the tantalizing and
volatile premise that officials of a major pro-Israel lobbying
organization were illegally trafficking in sensitive national security
information collapsed on Friday as prosecutors asked that all charges
be withdrawn.

From the beginning, the case against the lobbyists for the American
Israel Public Affairs Committee was highly unusual. The two, Steven J.
Rosen and Keith Weissman, were charged under the World War I-era
Espionage Act, accused of improperly providing to their colleagues,
journalists and Israeli diplomats sensitive information they had
acquired by speaking with American policy makers.

Some lawyers at the Justice Department had always had significant
reservations about the case, some current and former officials said.
They believed that Mr. Rosen and Mr. Weissman had acted imprudently,
but doubted that either man should be criminally prosecuted.
Nevertheless, F.B.I. agents poured substantial resources into the
case, and the decision to seek a dismissal infuriated many within the
law enforcement agency.

But several current and former officials said the decision to abandon
the case was no surprise. With adverse judicial rulings making the
prosecution increasingly risky, lawyers in the United States
Attorney’s Office in Alexandria, Va., and at Justice Department
headquarters met on several occasions in recent weeks, agonizing over
whether to go forward with the trial, which was scheduled to begin
June 2.

Last week, officials from the F.B.I.’s Washington office who
investigated the case made their final pleas to keep the case alive,
arguing that there was enough evidence to persuade a jury to find the
two men guilty. But prosecutors — including some who had worked on the
case for years — disagreed.

Joseph Persichini Jr., the top official at the F.B.I.’s Washington
office, praised the work of the F.B.I. agents on the case, and said he
was “disappointed” in the decision to drop the charges.

The case had raised delicate political issues about the role played by
American Jewish supporters of Israel and their close, behind-the-
scenes relationships with top government officials. Advocates of civil
liberties and of open government asserted that the defendants were
being singled out for activities that were part of the accepted and
routine way that American policy on Israel and the Middle East had
been formulated for years, with people exchanging information.

The decision to drop the case comes just days before Aipac is
scheduled to begin its annual policy conference in Washington, which
has often served as an advertisement of its influence. Prime Minister
Benjamin Netanyahu of Israel is scheduled to address the event via
satellite.

Lawyers for Mr. Rosen and Mr. Weissman said in a statement that while
they were pleased at the decision, the government had erred in
bringing the case in the first place and had caused great damage to
their clients. Aipac dismissed the men early in 2004 after prosecutors
presented some of their evidence to an Aipac lawyer. The group later
agreed to subsidize their legal costs.

The Justice Department said that the decision to drop the case had
been made solely by career prosecutors in Alexandria, and that senior
officials of the Obama administration had acted only to approve the
recommendation.

Several other officials said, however, that while senior political
appointees at the Justice Department did not direct subordinates to
drop the case, they were heavily involved in the deliberations. These
officials said David S. Kris, the newly appointed chief of the
department’s national security division, and Dana J. Boente, the
interim United States attorney in Alexandria, had conferred regularly
with prosecutors and ultimately decided to accept the recommendation
to abandon the case. Attorney General Eric H. Holder Jr. was informed
and raised no objections.

The case would have been the first prosecution under the espionage law
in which no documents were involved and in which the defendants were
not officials who provided the information, but the private citizens
who received it from them in conversations.

While Mr. Rosen and Mr. Weissman trafficked in facts, ideas and rumor,
they had done so with the full awareness of officials in the United
States and Israel, who found they often helped lubricate the wheels of
decision-making between two close, but sometimes quarrelsome, friends.

The move by the government to end the case came in a motion filed with
the Federal Court in Alexandria.

In pretrial maneuvering, the prosecution suffered several setbacks in
rulings from the trial judge, T. S. Ellis III, that were upheld by a
federal appeals court in Richmond, Va. Judge Ellis rejected several
government efforts to conceal classified information if the case went
to trial. Moreover, he ruled that the government could prevail only if
it met a high standard; he said prosecutors would have to demonstrate
that Mr. Rosen and Mr. Weissman knew that their distribution of the
information would harm United States national security.

The investigation of Mr. Rosen and Mr. Weissman also surfaced recently
in news reports that Representative Jane Harman, a California Democrat
long involved in intelligence matters, was overheard on a government
wiretap discussing the case. As reported by Congressional Quarterly,
which covers Capitol Hill, and The New York Times, Ms. Harman was
overheard agreeing with an Israeli intelligence operative to try to
intercede with Bush administration officials to obtain leniency for
Mr. Rosen and Mr. Weissman in exchange for help in persuading
Democratic leaders to make her chairwoman of the House Intelligence
Committee.

Over government objections, Judge Ellis had also ruled that the
defense could call as witnesses several senior Bush administration
foreign policy officials to demonstrate that what occurred was part of
the continuing process of information trading and did not involve
anything nefarious. The defense lawyers were planning to call as
witnesses former Secretary of State Condoleezza Rice; Stephen J.
Hadley, the former national security adviser; and several others.
Government policy makers indicated they were clearly uncomfortable
with senior officials’ testifying in open court over policy
deliberations.

The government’s motion to dismiss said the government was obliged
take a final review of the case to consider “the likelihood that
classified information will be revealed at trial, any damage to the
national security that might result from a disclosure of classified
information and the likelihood the government would prevail at trial.”