by Grant Smith
Author Norman F. Dacey made powerful enemies. He turned the cozy estate-planning industry upside-down after publishing How to Avoid Probate in 1965. The book sold 2 million copies as Dacey barnstormed [.pdf] the country advising Americans how to structure their estates to avoid the costs, delays, and publicity of probate by setting up trusts. Dacey engaged in fierce battles with various bar associations who tried to shut down publication of the book by claiming he was practicing law without a license. The tenacious Dacey returned fire, filing scores of libel and First Amendment lawsuits.
Newly declassified U.S. State Department documents reveal a lesser-known but equally intense battle fought by Dacey. The chairman of the American Palestine Committee and close confidant of“Rabbi Outcast” Elmer Berger nearly succeeded in having American Israel Public Affairs (AIPAC) Director Morris Amitay prosecuted for trafficking classified national defense information in the mid-1970s.
In 1975, the Ford administration attempted to sell improved Hawk anti-aircraft missiles to Jordan and duly sent notification containing classified Department of Defense data to the Senate Foreign Relations Committee and House Foreign Affairs Committee. AIPAC Director Morris Amitay reviewed the classified document after being informed of its existence “secretly by aides of Senator Clifford P. Case, Republican of New Jersey, and Representative Jonathan B. Bingham, Democrat of New York” according to the New York Times. Amitay and AIPAC quickly mounted a massive campaign in opposition to the missile sale, telling constituent public pressure groups that the weapons were capable of “providing cover for offensive operations against Israel.” After delays, Jordan considered acquiring a similar system from the Soviet Union.
Dacey was outraged. He dashed off a March 30, 1976, letter to Deputy Assistant Secretary for Near Eastern and South Asian Affairs Adolph Dubs inquiring, “Did you initiate action to discover the identity of the individual(s) responsible for the violation and to institute appropriate action to punish the violator?” On April 29, the State Department forwarded Dacey’s letter to the Criminal Division of the U.S. Department of Justice, but attempted to downplay the affair by claiming that “A notice of sale is normally not considered by the Department of Defense to require classification and protection…. I would appreciate any comments you could offer on the issues presented by the letter….” On May 19, the State Department seemed to try to extricate itself from the scandal, telling Dacey “we consulted with the Justice Department informally after receipt of your first letter and, at their request, transmitted it to them for further consideration. The matter is still under review in the Justice Department, which expects to provide you with a direct response in the near future.”
On June 16, Dacey again pressed the State Department. “We have had no response…. There has been a flagrant violation of the U.S. Criminal Code.” On June 22, 1976, the litigious Dacey upped the ante. “While we are certain that you have not intended to give the appearance of exhibiting disdain for public inquiries courteously submitted, the lack of any satisfactory response leaves us with no alternative to that conclusion. We do not wish to proceed publicly under sections 2383 and 2384 but you appear to leave us with no other course.” On June 25, 1976, the State Department testily warded off Dacey: “We are not aware that any Department of State official has failed to meet his obligations under applicable law and regulation regarding this document.”
The Criminal Division of the U.S. Department of Justice initially appeared to think otherwise and asked the State Department for more details on July 21, 1976. On Nov. 4, the Department of State finally admitted to DOJ that the disclosure to AIPAC was “unauthorized” and had included both the dollar amounts and quantitative configurations of the missile system. The State Department revealed that “specific details of Jordan’s military equipment needs are information provided us in confidence by that government. The classification of the documents in question was, in our view, substantively proper.” Worse still, according to State, “Had Jordan actually entered into such a major arms-supply relationship with the Soviets, this would have had a significant adverse impact on U.S. national defense interests and on U.S.-Jordanian relations.”
The U.S. State Department then responded to the DOJ’s other questions probing the feasibility of criminally prosecuting Amitay: “With the public disclosure of the information having already occurred, the authorization of its release for the purpose of prosecution would not be expected to cause damage with our relations with Jordan.” However, Amitay was never charged and continued to serve as AIPAC’s director until he resigned 1980 to establish a pro-Israel political action committee in Washington. The Department of Defense letter obtained by AIPAC has never been declassified.
Details of Dacey’s efforts to have U.S. criminal statutes enforced are timely and relevant. On Feb. 14, 2012, former AIPAC employee Steven J. Rosen will present oral arguments in the D.C. Court of Appeals claiming that seeking, obtaining, and leveraging such classified data has long been standard practice at AIPAC. Rosen sued AIPAC for $20 million in damages after it fired him in 2005 and publicly claimed Rosen’s classified information gathering activities “did not comport with standards that AIPAC expects of its employees.” If AIPAC settles before the hearing, it will be seen as an attempt to pay off Rosen — as previously agreed — in order to keep his silence. If AIPAC loses in appeals court, Rosen will be able to air even more dirty laundry to a jury, which could divert attention and resources from AIPAC’s intense drive to force the Obama administration to attack Iran.
While the Department of Justice may now have earned a reputation as the place where warranted prosecutions of AIPAC go to die, there is little evidence Israel’s lobby has similarly captured the pool of D.C. Appeals Court judges. The ghost of Norman Dacey — bane of American bar associations nationwide — may yet prevail.