D.C. high court rules against former AIPAC employee

Jessica M. Karmasek May 3, 2012, 11:15am


WASHINGTON (Legal Newsline) - The District of Columbia Court of Appeals last week upheld the firing of a longtime employee by America's pro-Israel lobby.

The District's highest court, in its April 26 ruling, said it found no error in the District of Columbia Superior Court's granting of summary judgment for defendant American Israel Public Affairs Committee, or AIPAC, and Patrick Dorton, the committee's spokesman.

AIPAC describes itself as a 100,000-member group committed to "ensuring Israel's security" and "protecting American interests in the Middle East and around the world."

Plaintiff Steven J. Rosen was AIPAC's director of research, and later director of foreign policy issues, for almost 23 years.

During his time there, Rosen allegedly received classified information.

In March 2008, the New York Times reported that knowledgeable individuals revealed a "surreptitiously recorded conversation" on July 21, 2004, among Rosen, an AIPAC colleague and a Washington Post reporter, Glenn Kessler.

According to the Times, the tape revealed that Rosen, using a "boastful tone," gave Kessler information about the Middle East that Rosen and his colleague "had received from government officials."

The individuals said the tone "may have been used to suggest that (AIPAC's) knowledge reflected (AIPAC's) great influence within the administration" -- a suggestion that made the conversation "potentially embarrassing" to the group.

Rosen testified on deposition that his colleague had told the reporter that he hoped the reporter would not get in trouble after receiving the information, whereupon Rosen had interjected that the United States had no Official Secrets Act that would expose a journalist to prosecution for publishing classified information.

A month later, in August 2004, it was publicly disclosed that the U.S. Department of Justice was investigating Rosen and another AIPAC employee for receiving classified information.

Six months later, in February 2005, AIPAC suspended Rosen.

A few weeks after that, federal prosecutors gave AIPAC's outside counsel, Nathan Lewin, limited security clearance to receive classified information pertaining to the investigation. Lewin was not allowed to disclose the particulars to AIPAC, but he sent a letter to the group recommending termination of Rosen's employment because he had "engaged in activity that AIPAC cannot condone."

Rosen was fired on March 21, 2005.

In April 2005, as reported in the Times, Dorton said Rosen had been fired because his actions differed from "the conduct that AIPAC expects from its employees."

Several months later, in August 2005, a federal grand jury indicted Rosen on charges of espionage. The charges later were dismissed in May 2009, after AIPAC had spent more than $4 million funding Rosen's legal defense.

However, in March 2009 -- four years after Dorton's statement on behalf of AIPAC -- Rosen sued AIPAC, Dorton and 10 members of the group's board of directors for defamation.

In October 2009, in response to a defense motion, the superior court dismissed the suit against all defendants except AIPAC and Dorton, on grounds of immunity.

The court also dismissed, as time barred, all claims for defamation except the claim attributable to the sentence in the March 2008 Times article stating that "AIPAC still held that view of (Rosen's) behavior."

The reference to "that view" implied the 2005 statement regarding Rosen's behavior.

The central issue, the District's high court said, is whether AIPAC's March 2008 statement was defamatory.

In February 2011, after completion of discovery, the superior court granted summary judgment in favor of AIPAC and Dorton on the ground that the statement was not "provably false, and therefore, not defamatory as a matter of law."

Senior Judge John M. Ferren noted that as the statute of limitations has run on the 2005 statement -- in the District, the statute of limitations for defamation is one year -- Rosen seeks compensatory and punitive damages for the 2008 statement only.

"Republication does not create a new cause of action," the judge wrote in the Court of Appeals' 23-page ruling.

The Court said it found no error in the lower court's judgment.

"In arriving at our decision, we have been mindful that AIPAC had the initial burden to present evidence that Rosen had failed to prove an 'essential element' of his claim. We conclude that AIPAC sustained that initial burden, first, by conceding through its officers' depositions that AIPAC lacked written 'standards,' and then by proffering, instead, the existence of various general standards that AIPAC employees are 'assumed' to follow, such as 'obey the law,' follow 'counsel's advice,' 'speak with "total candor,' that by their very generality and diversity convey no particular message.

"AIPAC therefore cited record evidence that Rosen had not been able to show that AIPAC's statement of March 3, 2008 relied on 'stated facts' that were 'provably false.'"

Ferren continued, "The burden then shifted to Rosen to show through the designated categories of discovery (in Rosen's case, his deposition) the 'specific facts' that created a genuine issue of material fact for trial. Rosen did not do so."

Simply put, no genuine issue of material fact remained for trial, the Court said.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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