A federal court this week ruled that J. William Leonard, the former director of the Information Security Oversight Office, may testify for the defense in the long-running prosecution of two former officials of the American Israel Public Affairs Committee (AIPAC) who are charged with illicitly receiving and transmitting classified information that prosecutors say is protected from disclosure.
Prosecutors had sought to prevent Mr. Leonard, a preeminent expert on classification policy, from testifying for the defendants, on grounds that he had briefly discussed the case with prosecutors while he was still in government. They even suggested that he could be liable to a year in jail himself if he did testify. To protect himself against such pressures, Mr. Leonard (represented by attorney Mark S. Zaid) moved to challenge the subpoena in the expectation that the court would order him to testify, thereby shielding him from any potential vulnerability. (“To Evade Penalty, Key AIPAC Witness Seeks to Quash Subpoena,” Secrecy News, September 2, 2008). The court has now done so.
In a February 17, 2009 memorandum opinion (pdf), Judge T.S. Ellis, III affirmed the subpoena and directed Mr. Leonard to testify for the defendants.
The ruling’s consequences for the AIPAC case are likely to be momentous, because government secrecy policy has become a central focus of the proceeding and because Mr. Leonard is the strongest witness on that subject on either side.
More than almost any other litigation in memory, the AIPAC case has placed the secrecy system itself on trial. In Freedom of Information Act lawsuits and other legal disputes, courts routinely defer to executive branch officials on matters of classification. If an agency head says that certain information is classified, courts will almost never overturn such a determination, no matter how dubious or illogical it may appear to a third party.
But in this case, it is a jury that will decide whether or not the information in question “might potentially damage the United States or aid an enemy of the United States.” Far from granting automatic deference on this question, Judge Ellis wrote that “the government’s classification decision is inadmissible hearsay”!
The dispute over whether or not the classified information that was obtained by defendants Steven J. Rosen and Keith Weissman qualifies for protection under the Espionage Act will be “a major battleground at trial,” Judge Ellis observed, and it will be addressed at trial “largely through the testimony of competing experts.”
While the prosecutors naturally have their own classification experts, including former CIA Information Review Officer William McNair, none of those experts have Mr. Leonard’s breadth of experience and none of them reported to the President of the United States on classification matters as he did.
Judge Ellis wrote with perhaps a hint of admiration that the defense “understandably characteriz[es] Leonard’s experience and expertise as ‘unsurpassed’.”
As noted in the new opinion, Mr. Leonard will testify for the defense on the “pervasive practice of over-classification of information,” “the practice of high level officials of disclosing classified information to unauthorized persons (e.g. journalists and lobbyists),” whether the classified information in this case qualifies for protection under the Espionage Act, and “whether… the defendants reasonably could have believed that their conduct was lawful.”
In other words, the prosecution probably just lost this case.
A nominal trial date has been set for April 21, 2009 but that date is likely to slip as a pre-trial appeal by the prosecution remains pending at the Court of Appeals. (Update: The trial has been rescheduled for June 2, 2009.)