Court Narrows Scope of Appeal in AIPAC Case

A federal appeals court handling the case of two former employees of the American Israel Public Affairs Committee (AIPAC) who are charged with unlawful handling of classified information last week granted a defense motion to limit the scope of a pending prosecution appeal.

In March, a lower court had issued a sealed 278-page court order identifying what classified information may be disclosed, summarized or withheld at the forthcoming trial of the AIPAC defendants. The government appealed the order in advance of the trial, as it is entitled to do. But at the same time it also attempted to appeal several other prior court orders that it regarded as unfavorable including two 2006 orders that defined the government’s burden of proof and another court opinion that limited the use of secret, non-public evidence.

Defense attorneys objected to the reopening of prior court rulings, and the appeals court concurred with them in a June 20 decision. A government brief on the surviving portion of the appeal will be due on July 25.

Selected case files from the lower court and the appeals court proceedings can be found here.

The AIPAC case is a subject of broad interest because it is the first time that Americans who are engaged in protected First Amendment activities have been prosecuted for the unauthorized receipt and transmission of classified information, which is a relatively common transaction among national security reporters and advocacy organizations. (Secrecy News has frequently sought access to information on topics or programs that we knew to be classified, and has occasionally gained such access.)

“This is not a typical espionage case,” defense attorneys told the appeals court in an April 29 motion (pdf). “Everyone who spoke with [defendants Steven Rosen and Keith Weissman] did so voluntarily, knew that Rosen and Weissman were not government officials, and knew that they did not have security clearances. Rosen and Weissman did not receive money or material goods from foreign governments or others in exchange for information; they did not speak in code; they did not conduct their meetings in secret; they are not charged with serving as agents of a foreign government, let alone with being spies; they did not receive or pass on classified documents; they did not pay any bribes to or threaten government officials.”

Prosecutors put it differently (pdf): “This is an Espionage Act prosecution involving two defendants who conspired to and did obtain classified information from their government sources and then passed that information to a foreign government, members of the news media, and others not entitled to receive it.”

But if it was a conspiracy, the government has handled it in a peculiar way, the defense said in its April 29 motion:

“Highlighting the curious underpinnings of this prosecution, the high-level government officials with whom Rosen and Weissman regularly met and who, according to the Indictment, illegally disclosed classified NDI [national defense information], have not — with but one exception — been charged criminally. Indeed, one of the disclosing officials has since received, not charges or reprimands, but a series of promotions to one of the highest, most sensitive positions in the government.”

The “one exception” is former Pentagon official Lawrence A. Franklin, who has been sentenced to a 12 year prison term.

The highly promoted official is David Satterfield, who has been elevated in position three times since the AIPAC case became public in August 2004 — first to Principal Deputy in State’s Mideast Bureau, then to Deputy Chief of Mission with the rank of Ambassador in Iraq — among the most sensitive diplomatic assignments in the world– and most recently to Principal Adviser to the Secretary of State on Iraq.

The defense attorneys’ argument is not that Mr. Satterfield did something wrong. Rather, they contend, the government’s response to the facts of the case has been erratic, inconsistent and unpredictable. Which is to say, it has been unjust.