The District of Columbia Court of Appeals issued a ruling this morning upholding the dismissal of a defamation lawsuit filed against the American Israel Public Affairs Committee (AIPAC) by former employee Steven Rosen, who was fired following his arrest on espionage charges in 2005.
The charges were later dismissed, but Rosen sued AIPAC in District of Columbia Superior Court in 2009, claiming that statements AIPAC made to the press about him were defamatory; AIPAC had said that Rosen's behavior didn't comport with standards the lobbying group expected of employees. A trial judge granted AIPAC summary judgment in early 2011, and Rosen appealed.
In today's opinion (PDF), a three-judge appeals panel agreed with Superior Court Judge Erik Christian's finding that AIPAC's statements weren’t based on facts that could be verified objectively, and as a result couldn’t be "provably false," a standard for defamation claims.
Rosen’s attorney, David Shapiro of Washington’s Swick & Shapiro, could not immediately be reached for comment this morning. AIPAC and its lead attorney, Thomas McCally of Carr Maloney, also could not immediately be reached.
According to court filings, Rosen had worked with AIPAC for nearly 23 years, serving before his firing as director of foreign policy issues. In August 2004, a U.S. Department of Justice investigation into whether Rosen and another employee had received classified information was made public, and AIPAC put Rosen on involuntary leave in February 2005. He was fired the following month.
Rosen was indicted by a federal grand jury on espionage charges in August 2005. The indictment was dismissed with prejudice in May 2009.
At issue in Rosen’s lawsuit were statements an AIPAC spokesman gave to the New York Times, first in 2005 and then in 2008. In 2005, an AIPAC spokesman was quoted as saying Rosen was fired because his actions didn’t meet “the standards that AIPAC expects from its employees.” A 2008 article repeated that statement, and added that an AIPAC spokesman had said more recently that the organization “still held that view of [Rosen and another employee’s] behavior.”
The District of Columbia’s statute of limitations for defamation claims is one year, meaning Rosen’s 2009 lawsuit was limited to AIPAC’s 2008 statement. Rosen, in his brief, argued that AIPAC’s claim that Rosen was fired because he didn’t meet AIPAC’s standards was false because the organization “had no such standards.”
Senior Judge John Ferren, writing for the court, noted that Rosen was correct that AIPAC had no written standards for employee behavior at the time he was fired. However, AIPAC argued that there were unwritten standards assuming employees would obey the law, and also follow the advice of AIPAC’s lawyers and communicate with the organization with “total candor.”
Ferren wrote that it wasn’t clear what “standards” AIPAC was referring to in its comments to the New York Times. Case law holds that a defamation claim can’t succeed where there are multiple interpretations, Ferren wrote, because it’s impossible to prove that the remarks in question are false.
In 2008, Ferren wrote that AIPAC not only knew about the charges against Rosen, but also that Rosen hadn’t met immediately with AIPAC’s general counsel after learning about the investigation – as he was asked – and that Rosen hadn’t disclosed to his superiors at AIPAC the full extent of his relationship with a person at the U.S. Department of Defense (the alleged source of the confidential information).
As a result, it wasn’t clear what behavior AIPAC was referring to when it told the New York Times in 2008 that it still believed that Rosen’s behavior “did not comport with standards that AIPAC expects of its employees.”
“In sum, no genuine issue of material fact remained for trial, and, for the reasons elaborated in this opinion, AIPAC is entitled to judgment as a matter of law,” Ferren wrote.
Chief Judge Eric Washington and Associate Judge Anna Blackburne-Rigsby also heard the case.
back in 1917. This is even what they said before 1917, dinrug the days of Theodore Herzl, who was founder of the Zionist movement. He received a letter from an Arab Palestinian, a note that was saying, why are you coming to Palestine, don't come to Palestine. So from the very beginning. And you can understand them. And this is precisely a conflict which was, even back then, so difficult to solve. And this is how we reached war. I mean, what I'm telling you is an historical analysis. It's not saying who was right or who was wrong or this is a colonialist action or not. It doesn't advance us. The fact is that by 1947-48, the only way to go ahead with anything was by violence, unfortunately. Violence was inevitable. And historically, yes, the Arab countries combined, attacked the state of Israel, the young state of Israel, as soon as independence was declared on May 15, 1948.JAY: The rationale for attacking the state of Israel was?SEGEV: To prevent its establishment, to destroy it.JAY: The premise being that—.SEGEV: You don't attack anybody in order to make peace with him, right?JAY: No, but the premise being that there was no rational legitimacy to create the state here. That's the premise they have.SEGEV: My experience as an historian is that whenever you get into legal arguments, it's really unproductive, because I will give you 200 legal arguments why it was legal, the Arabs will give you 200 arguments why it wasn't legal. Legal arguments don't really help us to understand what happened, and for me it's more about understanding what happened and why it happened, rather than trying to find who was right and who was wrong. If you go on the Internet site of the Israeli foreign office, you will find so many good legal arguments that would really convince you. But then if you talk to a Palestinian, even a Palestinian lawyer, he will give you so many. It's not about law, really. It's not important what—it's legal or not legal. But for us I think it's more important to try and understand what happened and why did it happen and what, if anything, we learned from what happened, to create a better future.JAY: The fundamental Palestinian argument about '48 is thousands of Palestinians were expelled—SEGEV: That's right.JAY: —from their own lands.SEGEV: That's right.JAY: So this much is a fact [inaudible]SEGEV: [inaudible] we're talking about. Again, don't approach it from a legal point of view, okay? Approach it from a humanistic point of view. It's a human tragedy.JAY: But why doesn't international law matter?SEGEV: Let's assume that you can prove to me that it was legal. I would still tell you, so what if it was legal? It is something that haunts us to the present day. It's an open wound. It's something we have to deal with. It's something we have a responsibility, at least an historical responsibility for, that tragedy. This is a tragedy that determines everyday news to the present day. This is what it's all about. So let's assume it's legal. So what? The Israeli foreign office will tell you it's not legal, Israeli official historiography will tell you it was legal, and the Palestinians will tell you that it was not legal. So what difference does it make? This is my attitude to international law. We have a human tragedy that is still with us today. It's an open wound. This is the important thing about it. This is why we need to know how did it happen. Now, you will find, I think, very few official Israelis, Israeli officials, or official history, even in textbooks, Israeli textbooks, you will find very few who will tell you, yes, half of them were expelled. We have all kinds of historical lies and historical mythology to justify this tragedy and explain how it happened. No. They were expelled. Hundreds of thousands of people were expelled. So this is not such a long time ago. Some of these people are still alive. There is a second generation and a third generation and a fourth generation of people who suffer from that tragedy. These are not professional refugees, people who gain, who have something to gain—let's say they get UN support or whatever. No. These are people, and you've seen them. You are coming from Beirut. Some people are living in refugee camps, where the alleys between the houses are so narrow that two people can't walk next to each other [inaudible] So the problem is open, and that's the important thing. ..
Posted by: Jim | June 04, 2012 at 03:16 AM