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.
The case sheds light on how AIPAC, one of Washington's most influential lobbies, devotes considerable energy to working the press. Spokesman Patrick Dorton would say only that Rosen and Weissman were fired for unauthorized activities that are "beneath the standards AIPAC requires of its employees."
Prosecutors in the AIPAC case asked to interview Kessler, but he declined and has not been subpoenaed. "There did not seem to be any particular information they needed from him that they didn't have already, specifically through the tape recording," said Kevin Baine, an attorney for Kessler and The Post.
Asked about the indictments, Kessler said: "You hate to hear about anything that would discourage people from sharing information that would benefit the public."
The indictment provides an unusually detailed portrait of encounters with journalists because investigators had Franklin under surveillance as early as 2003. Rosen relayed information that year about drafts of a presidential directive on a more aggressive posture toward Iran to Reuters correspondent Carol Giacomo and Post reporter Michael Dobbs, who mentioned it in a story two weeks later.
Franklin also gave information to "60 Minutes" producer Richard Bonin about influential Iraqi activist Ahmed Chalabi that led to this Lesley Stahl report on CBS on May 20, 2004: "U.S. officials at a senior level told us today that they have evidence Chalabi has been passing highly classified U.S. intelligence to Iran."
Within days, FBI agents confronted Franklin and he agreed to cooperate with the investigation and wear a wire. He reestablished contact with Weissman for the first time in a year and said they needed to meet because lives were at stake, said attorneys in the case.
During the sting, Rosen and Weissman told The Post's Kessler about unconfirmed allegations of an Iranian plot to kill Americans and Israelis in Iraq. Kessler made an effort to check out the information but never wrote a story. The allegations have never been verified, although lawyers in the case do not believe they were deliberately fabricated.
The following month, Weissman passed on information from Franklin to Laura Rozen, senior Washington correspondent for the magazine the American Prospect, and spoke of setting up a meeting with Franklin.
On Aug. 27, 2004, just three months after Franklin's earlier leak to her CBS producer, Stahl reported on the "CBS Evening News" that "the FBI believes it has solid evidence that the suspected mole supplied Israel with classified materials that include secret White House policy deliberations on Iran." Her story noted that "two people who work at AIPAC" were at the heart of the case.
Said Lowell: "The irony is that the media had a mole in the Pentagon."
Whether prosecutors will try to compel reporters to testify at trial remains to be seen. The U.S. attorney's office called Giacomo to confirm her involvement but has not asked to interview her, a Reuters spokeswoman said.
Michael Tomasky, executive editor of the American Prospect, called the possibility of a subpoena "potentially chilling" and said the case is not like the Plame investigation, in which prosecutors "had no other way to corroborate information that administration officials gave them other than to go to the journalists." Tomasky said, "It really impinges, potentially, on journalists who do this kind of work to get this kind of information from sources."
Defense lawyers say that the former AIPAC staffers made no attempt to hide their meetings with Franklin -- at one point Weissman took him to a Baltimore Orioles game -- and that their background conversations with journalists were a routine part of their job. They also note that there is no allegation that Franklin, Rosen or Weissman were paid for their efforts.
That is irrelevant, said former federal prosecutor Victoria Toensing, because such indictments "should not turn on whether somebody gets something in return." Asked about the propriety of pursuing conversations with journalists, Toensing said, "That would depend on the level of classified information."