Tuesday, November 16, 2010

AIPAC Bares All to Quash Lawsuit


On Nov. 8, 2010, the American Israel Public Affairs Committee (AIPAC) filed a massive 260-page motion [.pdf] in the District of Columbia Superior Court. It asks Judge Erik Christian to dismiss former AIPAC employee Steven J. Rosen’s $20 million defamation suit. In October the court dismissed all counts of the March 2009 lawsuit except for Rosen’s claim of harm over AIPAC statements to the press that he did not uphold its standards of conduct. Rosen and AIPAC have – until now – abstained from filing damaging information about the internal workings of AIPAC in court. AIPAC’s willingness to publicly air some extremely sordid and revealing content to get the remaining count thrown out before an alternative dispute resolution hearing begins in December is a sign that AIPAC is now fighting for its life, or – as one former AIPAC attorney put it – “reason for being.” If Rosen proves in court that AIPAC has long handled classified information while lobbying for Israel, the worn public pretense that AIPAC is anything but a stealth extension of the Israeli Ministry of Foreign Affairs – from which it emerged in 1951 – will end forever.

Rosen filed his civil suit after adverse judicial rulings made his (and coworker Keith Weissman’s) prosecution under the Espionage Act unlikely. Col. Lawrence Franklin pled guilty to passing classified national defense information to persons not entitled to receive it while Rosen and Weissman were indicted in 2005 for their role in the espionage affair. Although prosecutors reluctantly dropped [.pdf] their indictment in May 2009 – as AIPAC carefully notes in its filing – Rosen was never acquitted. Outstanding questions in the defamation suit about classified-information trafficking have now placed AIPAC in a bind. If AIPAC financially settles with Rosen, it will signal to the American people and attentive law enforcement officials that it is honoring a previous compensation deal to pay Rosen off after the spy flap subsided. On May 11, 2010, Rosen revealed an e-mail to Washington Post reporter Jeff Stein asserting that AIPAC promised “when this is over we will do right by Steve.” But it’s now far from clear whether AIPAC has the financial wherewithal or donors willing to honor such a – possibly illegal – commitment.

AIPAC’s massive filing is mostly derived from transcribed videotaped depositions taken during a lengthy discovery process. AIPAC’s confrontational lead counsel, Thomas L. McCally, forced Rosen to admit that after AIPAC fired him, he tapped some of its biggest donors for cash. Through conduits, bundlers, and payments carefully structured below the gift tax limits, Daniel Abraham, Haim Saban, Newton Becker, Larry Hochberg, Fred Schwartz, Walter Stern, and other angels ponied up almost $1 million to Rosen between the moment AIPAC fired him and the day he joined the Middle East Forum as a visiting fellow. Rosen’s solicitations may have permanently broken such donor ties to AIPAC. Between 2007 and 2008 AIPAC’s revenue plunged 14 percent from $71 million to $61 million during a period the Chronicle of Philanthropy reported record donations to internationally oriented nonprofits. In 2008, AIPAC had to tap some of its $50 million in reserves to cover a $2.8 million budget shortfall.

AIPAC is firing its best shot now because it needs to get the case thrown out before Rosen can unleash a return salvo of “about 180” internal AIPAC documents showing that it routinely gathered “inside” (Rosen’s preferred euphemism for classified) information from U.S. government officials. Rosen can now immediately file his own sliced and diced depositions and even some of his stash of documents to prove his contention that AIPAC slandered him by claiming he was unique and thereby keep the case moving forward.

Rosen’s sense of persecution over the aborted criminal case is palpable. In one deposition Rosen compares himself to Capt. Alfred Dreyfus bound for Devil’s Island on secret and contrived evidence. In another, he explains to AIPAC’s legal team his motivation for filing a defamation lawsuit.

Rosen: “My primary claim is going to be based on AIPAC putting me in the zone of danger through knowingly false statements, with reckless disregard for the truth; putting me in the zone of danger of being convicted for a crime that I did not commit, which would have caused me to spend decades – potentially decades in prison, an innocent man; and that AIPAC’s reckless disregard for the truth had materially increased the chance of – of a wrongful conviction.”

McCally: “What actions by AIPAC put you in this, quote, ‘zone of danger’ to be convicted for a crime you did not commit?”

Rosen: “The statement that I – my – that my actions were not part of my job, and the statement that my actions were beneath AIPAC’s standards, and statements that stated and implied that AIPAC did not know about what I was doing, and various other false statements that could have led a jury to conclude that my – that I was a rogue operator, that this was not a legitimate lobbying activity.”

AIPAC ‘s filing struggles to exonerate AIPAC’s executive director of any involvement in classified information trafficking in a careful selection from a deposition of Howard Kohr conducted by Rosen’s lawyer, David H. Shapiro.

Shapiro: “You never sought to get classified information?”

Kohr: “That is correct.”

Shapiro: “Okay, did you get classified information?”

Kohr: “Did I get classified …”

Shapiro: “Yes.”

Kohr: “…information here? To my knowledge, no.”

Shapiro: “At no time?”

Kohr: “At no time.”

Shapiro: “During – we’re talking the period… 1987-1991.”

Kohr: “’1987 till today.”

Shapiro: “So at no time have you received information that has been classified as secret, top secret, that sort of classification?”

Thomas L. McCally (AIPAC’s lawyer): “Now that’s a different question, actually. You’re saying designated United States secret or top secret?”

Shapiro: “Yes. Designated – classified by the United States government.”

Kohr: “That is correct.”

Shapiro and Rosen are clearly building a very interesting box of incrimination around Kohr. While it is now established fact that a copy of the 300-page “Probable Economic Effect of Providing Duty-Free Treatment for U.S. Imports from Israel, Investigation No. 332-180” was probably still in AIPAC’s possession in 1987 and circulating among its employees, the report was only classified as “confidential” by the U.S. government. If Rosen intends to reveal Kohr received that particular classified information through such depositions, he will have to coach his legal team on the details of how AIPAC (in conjunction with the Israeli Ministry of Foreign Affairs) obtained such classified U.S. industrial secrets.

The AIPAC filing reveals the organization’s devotion to planting stories at the New York Times and Washington Post has not diminished since the days of its founder, Isaiah L. Kenen. David Shapiro deposed AIPAC’s head outside legal counsel Nathan Lewin in order to emphasize that Rosen and Weissman’s efforts to push a classified-information-laden story to Washington Post reporter Glenn Kessler was simply business as usual.

Shapiro: “Right. Isn’t that why people talk to reporters?

Lewin: “No. I think you talk to reporters because you may have some information that the reporter might be interested because the reporter asks you questions. This was in the context – a conversation in which they were trying to get the reporter to write the story.”

Shapiro: “Isn’t that part of what AIPAC does, is get information out so that there’s a pressure that builds in favor of Israel?”

Lewin: “In favor of Israel. Correct.”

According to another Rosen deposition, the key to the government’s quashed espionage case against him was the story he embellished and pushed to Glenn Kessler. The FBI wiretapped a three-way conversation of Kessler, Rosen, and Weissman that confirmed AIPAC employees knew they were relaying classified information.

Rosen: “So we were warning Kessler that we had been warned that the Iranians were stirring up what could be called an insurgency. I referred to it colorfully as total war against the United States. That they were recruiting oil field workers for sabotage, that they were putting their agents – I’m afraid at this moment I don’t remember all of the details. But there was a list of details about what the Iranians were doing to get ready for active opposition to the U.S. armed forces in Iraq….”

Aside from such snippets of Rosen’s drive to get the U.S. into a war with Iran, the AIPAC civil-suit defense team was particularly interested in why (before he was indicted) Rosen immediately met with a representative of the Israeli embassy – instead of AIPAC’s inside legal counsel – after the FBI brusquely warned him to “get lawyer by 10 a.m.” Rosen was conscious that his own rushed meeting at a restaurant with an Israeli official was eerily similar to Anne Pollard’s (Jonathan Pollard’s former wife) rushed clandestine meeting with Avi Sella two decades earlier. Like the Rosen warning, it allowed Israeli officials to flee the United States to avoid arrest and prosecution. AIPAC’s counsel also appeared to want details about the FBI accusing Rosen of lying to them, as Rosen detailed his doorstep confrontation with the FBI followed by rushed consultations with the Israelis.

Rosen: “They [the FBI] were accusatory toward me. They were accusatory toward the government of Israel. They were accusatory toward AIPAC.”

McCally: “And tell me how they were accusatory.”

Rosen: “They said that they had a recording of [Lawrence] Franklin giving a classified document to an Israeli government official. That was the most serious accusation. It’s true, it wasn’t about me or AIPAC. But it was the most serious accusation. They said they had reason to think I was lying when I told them that I did not receive classified information from Franklin, or that I didn’t know of somebody who received – I don’t remember the word formulation. They said that I better get a lawyer by 10:00 a.m. They said that they didn’t – that if I was willing to cooperate, they were willing to I forgive me for lying to them, but that if I didn’t cooperate, I could be prosecuted for lying to them.”

McCally: “Anything else you recall?”

Rosen: “At this moment, no. But I’m sure there might have been more.”

McCally: “Did you respond to them?”

Rosen: “In the beginning I was responding. But as they became more and more threatening, I said, those are very strong words you’re using, I think I better get an attorney. And then one of the two agents said, well, you don’t need an attorney. He said, I’m not an attorney either, you can just talk to us. And I said – I repeated that I think I better get an attorney, this is out of my league, and I’m very surprised by all of this, and I need – my head was spinning. And I said, I need to – I don’t want to talk to you anymore.”

McCally: “And that ended the conversation?”

Rosen: “They made this threat about getting a lawyer by 10:00 a.m.”

McCally: “What significance did they place on 10:00 a.m.? Did they say they were going to arrest you?”

[Two deposition pages omitted from AIPAC filing.]

McCally: “Mr. Rosen, we’re back on the record. Who did you call?”

Rosen: “I called Phil Friedman.”

McCally: “Was he first?”

Rosen: “I believe – I don’t know. I believe I tried to call Howard Kohr. But I somehow didn’t get through or something. I believe I tried to call Howard Kohr, but I have no recollection of that ever taking place, and I don’t think it did take place. But I think I tried to call Howard Kohr. I called Rafi Barak, the deputy chief, the number two, like deputy ambassador, they call it deputy chief of mission, of the embassy of Israel. And I called Keith Weissman.”

McCally: “All right. Let’s take them one at a time. What did you discuss with Mr. Friedman?”

Rosen: “Well, I must tell you that it was a very agitated conversation on my side, and even, to my recollection, somewhat on his. He was taken very much by surprise, as I was. And while I don’t think he was as emotional as I was, he wasn’t completely collected either. It was early in the morning.”

McCally: “What do you recall of the discussion? What did you say, what did he say?”

Rosen: “Most of what I know about the discussion is what I’ve heard people say the discussion was about later. The only part I remember was that we should convene in the office. I said, ‘You’ve got to get me legal counsel,’ because Phil is not a criminal defense attorney. And he said he would, and that we would take care of this, we would find legal counsel. And that was a critical part that I was focused on.”

McCally: “So you recall in your conversation with Phil saying, we need to convene in the office, and he agreed to find you legal counsel?”

Rosen: “He said we should convene in the office.”

McCally: “When?”

Rosen: “When what?”

McCally: “To convene in the office? Right away?”

Rosen: “I don’t think so. I think it was a little later. I don’t know.”

McCally: “When did he say to meet in the office?”

[Four deposition pages omitted from AIPAC filing.]

Rosen: “… this, this is terrible, something awful is happening here.”

McCally: “You called Rafi Barak, deputy chief mission for the embassy?”

Rosen: “Yes, the number two official of the embassy.”

McCally: “What did you discuss with him?”

Rosen: “I told him I had to see him right away. And he said, I can’t, I’m going to a meeting. I said, no, you’re not. I said, this is extremely serious, I have to see you right away. And he said, okay, okay, I’ll meet you at Bread & Chocolate, which is a place we usually met for breakfast, often on Fridays, which this was.”

McCally: “Well – all right. And then you call I Keith Weissman? Did you –”

Rosen: “I don’t remember exactly when I called him.”

McCally: “Do you have any other recollection of your call with Rafi Barak?”

Rosen: “The hard part was getting him to cancel his meeting. By the way, I left out something about…”

[Six deposition pages omitted from AIPAC filing.]

Rosen: “The hard part was getting him to cancel his meeting. I went to Bread & Chocolate and met Rafi Barak, and talked to him there. And he got very upset too.”

McCally: “What did you all discuss?”

Rosen: “I told him especially the part about this allegation that some Israeli had received a classified document from Larry Franklin. I told him this looked very serious to me, and that I probably made some reference to Pollard, because that’s the first thing that of course comes to mind in such a controversy. And he was more guarded with me. Once I told him that, you know, he was – you know, just wanted to go back to the office and investigate it.”

McCally: “Do you recall anything else of your conversation?”

Rosen: “No.”

McCally: “What happened when you broke up at the restaurant and left?”

Rosen: “Well, according to my recollection I went to the office.”

McCally: “Well, was the FBI – did they follow you to the restaurant?”

Rosen: “Oh. At the restaurant. Yes. When I went to get my car in the parking lot, the FBI agent was there, or one of them.”

McCally: “Male or female?”

Rosen: “I have a recollection of it being female. But I don’t know. Because the ones who came to my house were two males. I may have that wrong.”

McCally: “She was standing at your car?”

Rosen: “Or in the parking lot at the back door. The way that restaurant works, it has a parking lot behind it, and the back door. And I think I came out the back door, and there she was, I think.”

McCally: “Did you speak with her?”

Rosen: “I don’t think so. I think I just looked at her and drove off.”

McCally: “Did you make any gestures, or did she make any gestures towards you?”

Rosen: “I don’t know. I don’t really know.”

McCally: “Do you recall her waving at you?”

Rosen: “Not at this moment, no….”

So there are lies and spies, but what about the sex? Suffice it to say that 27 percent of the filing deals with widespread workplace-inappropriate activities at AIPAC – from tales of prostitution, late-night Craigslist-powered anonymous hookups, and massive flows of digital content not generally handled by reputable charities. It’s funny to speculate whether AIPAC could have made a plausible defense to Justice Department prosecutors in 2005 that its office network was simply too overflowing with pornography to accommodate substantial amounts of classified government information. But AIPAC never had to. The filing also reveals that very generous rehabilitation incentives from the D.C. deputy mayor and property tax benefits given to AIPAC to build its new H Street headquarters have probably not meaningfully lowered neighborhood blight as promised.

As Rosen and AIPAC tussle in court over the organization’s long history of using classified national defense and economic information for the benefit of their foreign principal, Americans must begin to ask some very serious governance questions. Why won’t the mainstream media cover any aspect of the defamation suit? Shouldn’t this matter have been resolved in a bona fide criminal setting in 2009 rather than being surrendered by prosecutors under the watchful eye of Obama political appointees? Why wasn’t AIPAC itself indicted for espionage? And most important of all, why isn’t AIPAC properly registered as a foreign agent of the government with which it breaks bread (and chocolate) on Fridays?

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