In an opinion released yesterday, a federal judge said there was plenty of evidence to support federal intelligence-gathering wiretaps and searches in an investigation of two pro-Israel lobbyists charged with conspiring to procure and distribute classified information.
Judge Thomas Ellis III upheld warrants issued by the secrecy-shrouded Foreign Intelligence Surveillance Court and said the evidence obtained can be introduced against the former employees of the American Israel Public Affairs Committee, Steven Rosen and Keith Weissman.
The special court "had ample probable cause to believe that the targets were agents of a foreign power quite apart from their First Amendment lobbying activities," Judge Ellis wrote in an August 14 opinion unsealed yesterday.
He said that while the pair's advocacy was constitutionally protected, they were entitled to no safe harbor for their alleged violations of a 1917 law that limits disclosure of the nation's secrets, the Espionage Act.
Judge Ellis did not identify the "foreign power" the defendants were allegedly serving, but other evidence in the case makes clear that Israel is the country in question.
The judge noted that a 1978 Senate report, written just prior to passage of the surveillance statute, found that some secrecy and foreign contacts by lobbyists were legitimate.
However, he also quoted a section of the report warning that foreign intelligence services could hide "behind the cover of some person or organization in order to influence American political events and deceive Americans into believing that the opinions or influence are of domestic origin and initiative."
Judge Ellis also indicated that defense attorneys have complained about alleged leaks of secret grand jury information to the press and have moved to have the case dismissed on those grounds.
The New York Sun reported yesterday that the judge ordered the Justice Department to investigate a leak to CBS News, which first reported the probe in 2004.
Judge Ellis said he was still considering the leak-related dismissal request but that the law was "not intended to invest a rogue official with the power to undermine a lengthy investigation."