By Walter Pincus
Washington Post Staff Writer
Tuesday, April 11, 2006
Federal prosecutors have reached back 60 years to a case involving a convicted Soviet spy as a precedent for indicting two former lobbyists for the American Israel Public Affairs Committee (AIPAC) under the 1917 Espionage Act for receiving and transmitting national defense information.
The spy, Mikhail Gorin, a Soviet citizen, came to the United States in 1936 as an employee of Intourist, the Moscow-run tourist agency, whose salary was paid by the Russian government, according to court documents in the early-1940s case. In the indictment and in the decision of the U.S. Court of Appeals for the 9th Circuit, Gorin was referred to as "the agent of a foreign nation."
After being convicted and losing his appeal in the Supreme Court, Gorin was sent back to the Soviet Union rather than having to serve his six-year sentence in a U.S. jail.
The Gorin case was cited in an unusual Justice Department filing last week in the case of Steven J. Rosen and Keith Weissman, former lobbyists for AIPAC who were indicted last August for receiving classified information in conversations with U.S. government officials and passing it on to journalists and Israeli Embassy officials.
The filing was ordered by U.S. District Judge T.S. Ellis III, who wanted the government to deal with constitutional issues raised by the defense in arguments on March 24 to dismiss the charges.
Ellis said that although the espionage statute had been around for almost 90 years, there were few precedents he could follow and that Rosen and Weissman were the first non-government employees to be indicted for receiving and transmitting national defense information orally.
The case has drawn attention from First Amendment lawyers because the judge, the prosecutors and the defense attorneys have all noted that the two lobbyists, in receiving and disseminating classified information, are doing what journalists, academics and experts at think tanks do every day.
In its filing, the Justice Department said it regretted that it had not noted the Gorin case in its original pleadings but added in a footnote that any attempt by the defendants to portray their own case as a spy case was "meritless." In their response, attorneys for Rosen and Weissman said the Gorin case is "utterly different" from theirs in part because Gorin was a "foreign agent."
In their argument, prosecutors also referred to the case involving Col. Rudolph Abel, a Soviet KGB agent, who lived in New York City under an assumed name and purported to be a commercial photographer. Abel was tried and convicted of spying in 1957, and in 1962 he was exchanged for Francis Gary Powers, the American U-2 pilot who had been shot down over the Soviet Union and was in a Russian jail. The government, in its memo last week, referred to Abel as "a non-government employee convicted of conspiracy to violate the espionage statute."
The government also disputed the defense position that it was unconstitutional to prosecute the lobbyists for receiving oral information because they had no way of knowing what part was classified and what part was not. The government countered that Gorin also received oral information and was convicted.
Gorin received reports from Hafis Salich, a Russian-born emigre who had become a U.S. citizen and worked for U.S. Navy intelligence in San Pedro, Calif., as a civilian investigator. In the course of the relationship, Gorin paid Salich $1,700, which came from Soviet government funds.
Salich, according to court documents, provided Gorin with the contents of over 50 reports that, among other things, detailed the activities of Japanese military and civil officials and the movements of fishing boats suspected of espionage.
The Supreme Court, in its opinion in the Gorin case, said the reports "gave a detailed picture of the counter-espionage work of the Naval Intelligence" and could assist a foreign government in checking on U.S. "efficiency in ferreting out foreign espionage."