Time to Drop the Prosecution of AIPAC's Steven Rosen and Keith Weissman

Wednesday, March 11, 2009

ATTORNEY GENERAL Eric H. Holder Jr. should put an end to a criminal case that should never have been brought.

The matter involves Steven J. Rosen and Keith Weissman, two former officials for the American Israel Public Affairs Committee, or AIPAC. The two were indicted in 2005 during the Bush administration and charged with conspiracy to disclose national security secrets to unauthorized individuals under the archaic Espionage Act. Those said to have received such information include Israeli officials, other AIPAC personnel and a reporter for The Post.

The government has the right to demand strict confidentiality from government officials and others who swear to protect its secrets. The Justice Department errs egregiously and risks profound damage to the First Amendment, however, when it insists that private citizens -- academics, journalists, think tank analysts, lobbyists and the like -- also are legally bound to keep the nation's secrets. The prosecution in effect criminalizes the exchange of information.

If principle alone is not enough to convince Mr. Holder of the need to drop this case, he should also consider the difficulty his prosecutors face in making the charges stick. Recent rulings have strengthened the hand of the defendants by allowing them to rely on classified documents and to call former Bush officials, including former secretary of state Condoleezza Rice, as witnesses. The trial court has also determined that in order to prevail, the government must prove beyond a reasonable doubt that the defendants passed along information they knew to be closely held by the government, that they did so knowing it could damage national security and that they acted in bad faith. These are exceedingly high hurdles to clear.

A trial has been scheduled for June in the U.S. District Court for the Eastern District of Virginia. Mr. Holder should pull the plug on this prosecution long before then.

Do you have a different view of this issue? Debate a member of the editorial board in the Editorial Judgment discussion group.

© 2009 The Washington Post Company