By Jerry Markon
Washington Post Staff Writer
Saturday, November 3, 2007
A federal judge yesterday issued a rare ruling that ordered Secretary of State Condoleezza Rice and more than 10 other prominent current and former government officials to testify on behalf of two pro-Israel lobbyists accused of violating the Espionage Act at their upcoming criminal trial.
The opinion by U.S. District Judge T.S. Ellis III in Alexandria directed that subpoenas be issued to officials who include Rice, national security adviser Stephen J. Hadley, former high-level Department of Defense officials Paul D. Wolfowitz and Douglas J. Feith, and Richard L. Armitage, the former deputy secretary of state.
Their testimony has been sought by attorneys for Steven J. Rosen and Keith Weissman, former employees of the American Israel Public Affairs Committee, or AIPAC, who are accused of conspiring to obtain classified information and pass it to members of the media and the Israeli government.
Attorneys for Rosen and Weissman say Rice and the other officials could help clear them because they provided the former lobbyists with sensitive information similar to what they were charged for, according to Ellis's ruling and lawyers familiar with the case. Prosecutors have been trying to quash the subpoenas during secret hearings and in classified legal briefs, but Ellis wrote that the testimony could help "exculpate the defendants by negating the criminal states of mind the government must prove.''
Legal experts said it would be highly unusual for such a parade of senior officials to testify at a criminal trial. Although former president Ronald Reagan and former attorney general Edwin I. Meese III testified at a trial arising from the Iran-contra affair in the 1980s, judges usually decline to grant such subpoenas on the grounds that high-level officials are too busy or that the information can be obtained from other sources.
"It's certainly been a long time, if ever, since a district court ordered the government to produce witnesses who currently occupy such sensitive national security positions to testify at trial in a matter of this sensitivity,'' said David Laufman, a Washington lawyer who previously handled national security cases in the U.S. attorney's office in Alexandria.
Legal experts said Ellis's ruling leaves the government with difficult choices and sets up a potential clash between the executive and judicial branches. Prosecutors might try to appeal, but it is unclear whether an appellate court would take the case, because the ruling came before the lobbyists' trial, scheduled for Jan. 14.
Prosecutors also might invoke some sort of privilege and refuse to allow the officials to testify on the grounds that it could reveal sensitive information about national security and U.S. foreign policy. That would likely lead to sanctions from the judge, which could include dismissals of the indictment.
The State Department referred questions to the Justice Department, which declined to comment. Tony Fratto, a White House spokesman, said the administration is "aware of the order." He declined to comment further.
Attorneys for the two former lobbyists said they welcomed the ruling.
"For over two years, we have been explaining that our clients' conduct was lawful and completely consistent with how the U.S. government dealt with AIPAC and other foreign policy groups," the two lawyers, Abbe D. Lowell and John Nassikas, said in a joint statement. "We are gratified that the judge has agreed that the defense has the right to prove these points by calling the Secretary of State and all of these other government officials as our witnesses."
The lobbyists are the first non-government civilians charged under the 1917 espionage statute with verbally receiving and transmitting national defense information.
Rosen and Weissman were indicted in 2005 on charges of conspiring to violate the Espionage Act by receiving national defense information and transmitting it to journalists and employees of the Israeli Embassy who were not entitled to receive it. The topics ranged from the activities of al-Qaeda to information about possible attacks on U.S. forces in Iraq, according to court documents.
Rosen, of Silver Spring, was AIPAC's director of foreign policy issues and was instrumental in making the committee a formidable political force. Weissman, of Bethesda, was a senior analyst. AIPAC fired them in 2005.
Among those ordered to testify are William Burns, the U.S. ambassador to Russia; Elliot Abrams, deputy national security adviser; and Kenneth Pollack, former director of Persian Gulf affairs for the National Security Council.
Staff writer Peter Baker and researcher Julie Tate contributed to this report.