On Dec. 23, 2010, the American Israel Public Affairs Committee filed a 53-page motion [.pdf] asking Judge Eric Christian to sanction former employee Steven J. Rosen over the illicit possession and release of sensitive internal AIPAC documents. Rosen’s $20 million defamation suit against his former employer seeks compensation for derogatory public statements AIPAC made to justify firing him after he was indicted under the Espionage Act in 2005 and their joint defense agreement collapsed.
AIPAC is determined to treat the Rosen defamation lawsuit as that of a “disgruntled former employee” while dodging more relevant questions about its own handling of government classified information. Rosen has continually introduced highly sensitive AIPAC documents into court filings while threatening to put more about AIPAC’s most sensitive operations into the public domain. On April 30, 2010, both parties to the suit entered into a comprehensive protective order [.pdf] that permitted plaintiff Rosen and the defendant to “classify” documents and depositions as “confidential” and “attorney’s eyes only.” But as early as May 14, 2010 [.pdf], AIPAC’s legal team began asking Rosen to return a cache of “confidential, privileged, and proprietary documents that belong to AIPAC.” Their protests and threats [.pdf] of additional legal actions have never ceased.
Proprietary documents AIPAC claims Rosen has in his possession include AIPAC’s benefits and personnel policy handbook, AIPAC’s bylaws [.pdf] (already released by Rosen), a memorandum of an AIPAC luncheon with National Security Council member Lisa Johnson, an internal memo about how limits on individual contributors would affect U.S. political campaigns, another internal memo about the individual political activities of AIPAC members, and Keith Weissman’s employee performance review. Johnson worked in the Bush 43 NSC Near East and South Asian Affairs division [.doc] under Bruce Ridell and Zalmay Khalilzad. Former AIPAC employee Keith Weissman was indicted for espionage alongside Rosen in 2005. AIPAC claims, “Most offensive is that Mr. Rosen has stolen the private employment evaluation of another employee and produced it in this litigation with no regard for that employee’s privacy and personal information.”
AIPAC makes a strong case for dismissal of the entire defamation suit while it laments press reports in the Jewish Daily Forward based on Rosen’s disclosures, “Plaintiff knowingly and intentionally directly violated the unambiguous terms of the Court’s Order, the District of Columbia Trade Secrets Act, the Joint Defense Agreement, and the terms that he agreed to when he was employed by AIPAC. Plaintiff did so with the express purpose of releasing portions of details of events, some of which transpired decades ago, which have already been taken completely out of context by the press. By his actions, Plaintiff continuously feeds and manipulates the press with inaccurate and incomplete information that have given rise to a plethora of articles about Plaintiff’s indictment, yet he complains in this lawsuit about a single generic statement made by AIPAC. Plaintiff’s actions undermine his very claims in this matter. ”
AIPAC claims Rosen’s disregard for applicable court procedure validates its own more widely broadcast official statements to the news media that Rosen was fired chiefly because his actions differed from “the conduct that AIPAC expects from its employees.”
While Rosen appears to have violated some narrow provisions of the protective order, he still has room to maneuver out of an immediate dismissal. In both his original defamation suit filing and subsequent introduction of evidence Rosen tried to thread a needle by claiming that it was somehow not unlawful for AIPAC to routinely collect and circulate classified U.S. government documents and that he was unjustly punished for such activities. Rosen could now claim the obvious – that AIPAC has long engaged in illegal activities, such as functioning as an agent of a foreign government – which drove it into the classified information-handling business. Confidentiality agreements cannot limit or supersede established whistleblower protections over disclosing illegal activities. For example, if Rosen introduces the Lisa Johnson NSC memo as proof that AIPAC acted as Israel’s foreign agent for the U.S. invasion of Iraq, it could blow a hole not only in the confidentially agreement, but in AIPAC’s tattered official stance that it was not intimately involved in planning and promoting the invasion. Rosen could make similar whistleblower claims about the still-sealed deposition of AIPAC legislative director Ester Kurz’s involvement in an earlier AIPAC economic espionage affair investigated by the FBI between 1984 and 1987 but quashed [.pdf] by order of the Justice Department.
Rosen also has many options outside his lawsuit. He could become an IRS informant and claim a $5 million share of any retroactive disgorgement of benefits improperly claimed by AIPAC as a tax-exempt charity. Or, with his insider knowledge (and related secret AIPAC documents), he could become an expert witness and indispensable counter-suit asset for information about AIPAC’s illegal campaign contributor and political action committee coordination in a newly filed civil lawsuit over election law violations.
Whichever path he chooses, Rosen is inadvertently performing an invaluable public service by shedding light on the internal machinations of AIPAC. AIPAC – like Rosen himself in 2009 – may yet escape justice on the basis of contrived legal technicalities or unprecedented judicial contortions. But AIPAC clearly can no longer constrain its former associates, the destiny of other civil suits, or growing public calls for overdue accountability.
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