Media Tangled in Lobbyist Case

By Howard Kurtz
Washington Post Staff Writer
Saturday, November 12, 2005

On July 21, 2004, two pro-Israel lobbyists called Washington Post reporter Glenn Kessler to pass on information that they said was from "an American intelligence source" -- a source they declined to identify.

The two men assured Kessler that the mystery source was "100 percent credible" and had information about an Iranian plot to kill Americans and Israelis in Iraq.

What none of them knew was that federal investigators were wiretapping the call, or that it would figure in an indictment against the lobbyists, Steven J. Rosen and Keith Weissman, on charges of mishandling classified information -- even though no documents changed hands. In a city where secrets of varying import are whispered every day, the case has sparked a debate about whether prosecutors are attempting to criminalize conversations with journalists.

While the pending trial of the two former staffers for the American Israel Public Affairs Committee (AIPAC) has been overshadowed by the CIA leak investigation, media advocates fear it could have an equally negative impact on the flow of information.

"Journalists who cover national security and defense receive classified information all the time," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. "It's virtually routine. If that were the standard for bringing an espionage case, we'd be locking up a lot of people in this town and there would be fewer sources of information."

Abbe Lowell, Rosen's attorney, called the indictment "devastating" for journalists who try "to make sure they're finding out what's really going on as opposed to what's said from the podium." Lowell added: "I'm absolutely amazed at the lack of media outrage."

The case raises some of the same First Amendment issues as the Valerie Plame leak inquiry, and not just because of the involvement of Kessler, who testified under a waiver of confidentiality that former vice presidential aide I. Lewis "Scooter" Libby had not discussed the CIA operative with him. In both investigations, conversations with reporters are being treated not just as evidence but also as part of the alleged crimes.

Under a long-standing law enforcement practice, journalists have not been prosecuted for receiving classified information, putting them in an awkward position -- and making them potential witnesses -- if criminal charges are brought against their sources. Some press advocates are worried that journalists may even lose their protected status in such matters.

So far, prosecutors have secured one guilty plea. The unnamed source cited in the call to Kessler, Pentagon analyst Lawrence A. Franklin, admitted last month that he passed government secrets to Rosen and Weissman, as well as to an Israeli diplomat in Washington. Franklin said he relayed the information because he was "frustrated" with U.S. policy toward Iran and hoped to influence the administration.

Franklin's attorney, Plato Cacheris, said his client "never got a dime" and "did this for patriotic reasons." A spokesman for Paul J. McNulty, the U.S. attorney in Alexandria and President Bush's nominee to be deputy attorney general, declined to comment.

What makes this conspiracy case particularly unusual -- in addition to the fact that it involves a strong U.S. ally, Israel -- is that Rosen and Weissman are private citizens with no direct access to government secrets. They served as middlemen who passed what they could glean from Franklin to reporters, their bosses, officials and others.

"We are going to challenge the case vigorously, both factually and legally . . . and are confident that Keith Weissman will be vindicated," said John N. Nassikas, Weissman's attorney.

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