In the unprecedented prosecution of two former officials of the American Israel Public Affairs Committee (AIPAC), a federal court last year upheld the government’s controversial claim that the Espionage Act could be used to prosecute the unauthorized receipt and transmittal of classified information by private citizens who are not engaged in espionage.
But as the case proceeds, the court continues to interpret the Espionage Act in a restrictive manner that places an increasing burden of proof on the prosecution, and that could even make the case a source of embarrassment for the government by exposing sensitive “back channel” diplomatic practices.
In a decision last week (pdf), Judge T.S. Ellis, III, denied a defense motion asking the court to compel testimony from Israeli government officials.
But along the way, the court also elaborated its demanding view of the requirements that the prosecution must meet to win a conviction under the Espionage Act, and indicated what sorts of facts might tend to exculpate the defendants.
“To prove the alleged conspiracy to disclose [national defense information, or NDI] to one not authorized to receive it, the government must prove all of the following,” wrote Judge Ellis, at the beginning of a list of prosecutorial hurdles that reiterates and expands upon the requirements first spelled out in his August 2006 order denying a motion to dismiss the case.
Among other things, the government must prove that “defendants possessed all the culpable mental states that would be necessary for conviction under [the Espionage Act],” which include four distinct states of knowledge or belief (at page 9).
Briefly, prosecutors must show that the defendants knew the information involved was closely held and could harm the United States; that it could be used to the injury of the United States or to the advantage of a foreign nation; that the recipients of the information were not authorized to receive it; and that the defendants acted with knowledge that the disclosures were illegal and could harm national security.
But if the defense can show that U.S. government officials frequently disclosed confidential information to AIPAC for transmittal to the Israeli government, the court observed, that would mean the defendants could have plausibly believed such behavior was authorized.
If “the governments of the United States and Israel routinely used AIPAC as a diplomatic ‘back channel’ [to convey sensitive information]” that would be “potentially exculpatory” since it could “affect defendants’ perception of the propriety of any disclosures made by or to them.”
The nature of the relationship between the governments of the U.S. and Israel may also have a bearing on the defendants’ state of mind, the Judge wrote, in language that may foreshadow close scrutiny of U.S.-Israel relations at trial:
“The more specific the details of the alleged cooperation between the two governments, the more probative [i.e., legally significant] such cooperation becomes,” Judge Ellis wrote. (p. 14)
In another important observation, the judge wrote that “testimony that disclosures of alleged NDI were viewed by defendants, or their contacts in the diplomatic establishment, as beneficial to the United States’ interests is exculpatory.” (p. 13)
Similar reasoning would imply that if a news organization published classified information in the belief that doing so was beneficial to the United States, that would take it beyond the scope of the Espionage Act’s prohibitions on unauthorized disclosure of national defense information.
The trial of defendants Steven J. Rosen and Keith Weissman is scheduled to begin on or around June 4 in the Eastern District of Virginia.
A separate ruling (pdf) from Judge Ellis last week denied a defense request to suppress statements made by defendants to FBI agents on grounds that the agents used trickery or deception to elicit the statements.
The two rulings were first reported in the New York Sun on February 16.