Whether it realizes it or not, American Jewry today stands before a precipice. It can force its way back onto stable ground, or it can fall. The chasm before which American Jewry now finds itself relates to the basic question of whether Jews in America have found a permanent, stable home in America where they are free to be Jewish or whether, in the words of former AIPAC executive director Neal Sher, they will begin to act “as though they are guests in their own country.”
The recent conviction of former Pentagon analyst Larry Franklin on felony charges of mishandling classified U.S. government information and the passing of classified information to two former senior AIPAC lobbyists, Steven Rosen and Keith Weissman, is the proximate cause of the current crisis. Rosen and Weissman are scheduled to be tried for misusing classified government information that Franklin purportedly transferred to them in April.
Franklin, who was sentenced two weeks ago to 12 years and seven months in prison for his actions, is scheduled to begin serving his sentence only after he testifies against Rosen and Weissman. If his testimony is helpful to the prosecution in that case, his sentence will likely be reduced.
The charges, both in the case of Franklin and in the case of Rosen and Weissman, are unprecedented. After initial charges of transferring classified government documents to unauthorized persons were dropped, Franklin was convicted for keeping classified government documents at his home.
To understand the extraordinary nature of the U.S. Justice Department’s decision to prosecute Franklin, it should be recalled that in the summer of 2004, at the time the Franklin case first became public, Sandy Berger, who served as national security adviser to former president Bill Clinton, was charged with removing highly classified documents from the National Archives by hiding those documents in his suit pockets, briefcase and socks. During his investigation, Berger admitted to having destroyed some of those documents, which related to the investigation of the September 11 attacks that was being conducted at that time by the 9/11 Commission.
Berger was charged with the misdemeanor offense of unauthorized removal and retention of classified material. A court found him guilty and slapped a $50,000 fine on his wrist. Former CIA Director John Deutsch was similarly charged with a misdemeanor offense for having taken classified materials home with him after he left the CIA. Deutsch was pardoned for the act by Clinton in the final hours of his presidency.
In Franklin’s case, as in the cases of Weissman and Rosen, Justice Department prosecutors decided to indict the men under clauses of the Espionage Act — a law which has never previously been invoked. As Harvard Law Professor Alan Dershowitz notes, it is not even clear if the statute, so long ignored, actually remains law. In his words, “It is a well-established norm in the U.S. that when a law is not enforced for many years, it ceases to be considered law.”
The decision to prosecute Franklin, Rosen and Weissman under the articles of the Espionage Act, Dershowitz attests, “is the worst case of selective prosecution I have seen in 42 years of legal practice.” He argues: “If every administration official who did what Franklin did – leak classified information to an ally for the purpose of influencing domestic American policy – were prosecuted as he has been, there would be more government officials in prison than at the State Department, the Defense Department or the White House.”
Rosen and Weissman have been indicted for making unauthorized use of classified information. Given that the two men had no security clearances, did not work for the U.S. government and had signed no oath to protect classified government information from unauthorized use, the decision to prosecute them places every journalist, think tank scholar and lobbyist in Washington – all of whom trade daily in classified information as an accepted currency in the U.S. capital – at risk of similar prosecution.