Stewart David Nozette was arrested by the FBI yesterday for attempted espionage. Though Nozette was not formally charged with the Constitutional crime of treason — the only crime specifically described in the Constitution — the crime of espionage is viewed by the public as an act of treason against the United States because selling secrets can be viewed as a form of “levying War” against the country or giving “Aid and Comfort” to an enemy.

Officials said Nozette accepted $11,000 in cash — with the inference more would follow — and used manila envelopes to pack up secrets. He asked for payment and delivered the secrets to, of all places, a U.S. Post Office.

Nozette wanted his payments to be kept below $10,000 to keep the prying eyes of government away, prosecutors said. In the first two transactions, Nozette allegedly sold out his country for the price of a used car.

Nozette thought he had been recruited by the Mossad, Israel’s spy agency. In reality, he had been targeted in an FBI sting because the government had gotten the idea he just might be willing to sell out the United States to a foreign government or entity for a fee. Prosecutors said he had left the United States in January with two computer thumb drives. Inspectors could not find the drives when he returned.

The government of Israel was not involved in wrongdoing, authorities said.

A thumb drive was left at the Post Office in September by Nozette, when he thought he was doing business with the Mossad, prosecutors said.

Prosecutors from the U.S. Attorney’s office led by Acting U.S. Attorney Channing Phillips in the District of Columbia are assisting in the case, which will be heard in U.S. District Court for the District of Columbia. The same court is the venue from which the the civil-forfeiture case against tens of millions of dollars seized from AdSurfDaily Inc. in an international Ponzi scheme probe is being prosecuted.

The Nozette case demonstrates that grave matters of national security come to the attention of prosecutors in Phillips’ office and judges in the district. Sometimes the matters include elements of international intrigue, as the Nozette case again demonstrates.

Judge Rosemary Collyer, the judge in the ASD case, presided over an extremely complex case involving former U.S. Secretary of State Henry Kissinger, once National Security Adviser to President Richard M. Nixon. The case dated back to the early 1970s and involved the complicated issue of “sovereign immunity.”

How complex were the legal issues in the case? Collyer’s own words provide a glimpse:

“This lawsuit challenges covert actions allegedly directed by high-level United States officials in connection with an attempted coup in Chile in 1970 designed to prevent the election of Dr. Salvadore Allende as Chile’s first Socialist President,” Collyer wrote in 2004.

“General René Schneider, then Commander-in-Chief of the Chilean Army, opposed military intervention in the electoral process,” she continued. “As a result, the United States allegedly plotted with Chilean nationals to neutralize him. General Schneider was shot during a failed kidnap[p]ing attempt on October 22, 1970, and died from his wounds a few days later. Two of General Schneider’s children and his Personal Representative, suing on behalf of his estate, seek to hold the United States and Henry A. Kissinger, former Assistant for National Security Affairs to President Richard M. Nixon, responsible for the General’s death.”

In a ruling dismissing the case, Collyer said Kissinger could not be held responsible for the death, even if the assertions against Kissinger and the U.S. government were true.

“The plaintiffs’ claims present a non-justiciable political question on foreign policy
decisions undertaken by the Executive Branch in 1970,” Collyer said. “[T]he Court finds that Dr. Kissinger was properly certified as acting within the scope of his employment vis-a-vis the relevant events. The United States will be substituted for him as the sole defendant. With this substitution, the amended complaint is barred by the doctrine of sovereign immunity.”

Whether or not one agrees with the ruling, one must agree that Collyer was tasked with the responsibility to reduce extremely complex issues of both law and U.S. foreign policy to their essence — and view them in the framework of Constitutionality. No critic interested in fair or logical debate would dismiss her as an intellectual lightweight.

Words Mean Things

The reason for this column is to point out a couple of things: First, that the responsibility of federal prosecutors is to advocate in the interests of the people of the United States. Some of the same people criticizing the ASD prosecutors in excessive fashion — and even extreme fashion — perhaps will be less vocal or not vocal at all in their criticism of Phillips’ office for its role in the prosecution of Nozette.

It is, after all, an espionage prosecution, and the American public does not take kindly to acts that speak of treason, whether it’s the treason spelled out in the Constitution or the treason inferred from the act of selling government secrets for a fee.

And this brings us to the use of extreme language by some supporters of ASD — language directed at both the prosecution and Judge Collyer.

Collyer, a sitting federal judge appointed by a President of the United States and confirmed by the U.S. Senate — and a federal judge who presides over issues of national security and the affairs of state, as the Nixon/Kissinger case demonstrates — was described by an ASD member as “brain dead or taking a payoff” if she ruled against ASD.

No such comment can be viewed as reasonable.

Other examples of extreme language directed at Collyer can be found in this court filing by ASD mainstay Curtis Richmond. The filing uses words such as “treason” and phrases such as “Willfully Violated Her Judicial Oath” thus being “Guilty of Perjury of Oath, a Felony.”

Richmond asserted that Collyer perhaps was guilty of as many as 60 felonies.

No such language can be viewed as reasonable.

Prosecutors haven’t fared much better. Dozens of pro se litigants using a pro se template practically screamed their assertions that prosecutors had “failed” to do this and “failed” to do that on matters pertaining to the production of “EVIDENCE” and “WITNESSES” and “VICTIMS” and that the ASD “action was based solely on the OPINIONS of the U. S. Government agents.”

How reasonable is it to scream in court filings?  The judicial process is designed deliberately to ensure decorum precisely to guarantee that no side gets shouted down and that issues are decided in an atmosphere of dignity.

Moreover, the record of the ASD case plainly shows that the prosecutors have produced evidence, prior even to introducing evidence at the evidentiary hearing last fall. Eight government exhibits of evidence were included in the August 2008 filing of the complaint. It’s all in the public record — and was in the public record long before the pro se litigants shouted that no “EVIDENCE”  had been produced.

With respect to the screamed claim that the government relied exclusively on the “OPINIONS” of its agents, the record also plainly shows that even the ASD side agrees with some of those opinions. Here are just two purported “opinions” that both the ASD side and the government side agree on:

• That ASD advertised that rebates “will” be paid until members received back 125 percent of their “advertising” spend.
• That the government seized the money from Andy Bowdoin and that the money belonged to Andy Bowdoin, not ASD members.

Bowdoin officially has held that position since August 2008, just days after the seizure. It is a theme in his court filings. Recently, though, he told ASD members in a conference call that the seized money belonged to them. The claim put him at odds with his own arguments in court, which the prosecution now claims is evidence of his willingness to lie to members he claims to be serving, while also lying to a federal judge.

With respect to the shouted claim by the pro se litigants that the government “has failed” to produce any “VICTIMS” or “WITNESSES,” the claim is disingenuous to its core. A trial date has not even been scheduled in the case. The evidentiary hearing was exactly that — a hearing, not a trial. The hearing was held at ASD’s request. Collyer granted it in “the interests of justice.” Prosecutors were not required to try their case at the hearing. Nor were they duty-bound to produce their witnesses. It was ASD’s hearing.

Nozette’s arrest yesterday quickly became an international story. The story will play out in some of the same venues the ASD case is playing out. It will be argued by highly skilled, highly trained prosecutors.  A highly skilled, highly trained federal judge appointed by the President of the United States and approved by the U.S. Senate will preside over the proceeding “in the interests of justice” for all parties, including Nozette.

There will no reckless claims of judicial treason or of violating a judicial oath or of operating a “Kangaroo Court” — as has been the claim in the ASD case, against both Judge Collyer and her supervising judge, Royce Lamberth.

The Nozette case is, after all, an espionage case, one in which the public outside the courtroom will discuss the real meaning of the word treason — something some of the ASD supporters should have been doing all along.

The ASD case is, was and always has been about national security. If you doubt it, ask yourself if you really know who your autosurfing neighbor is — and then ask yourself if you can guarantee that all ASD members were pure as the driven snow and not interested at all in using a vehicle provided by Andy Bowdoin for criminal purposes.