The prosecution of two former officials of the American Israel Public Affairs Committee (AIPAC) for allegedly mishandling classified information is attracting growing attention as the momentous character of the case and its implications for American civil liberties become clear. (AIPAC itself is not a defendant and is not accused of wrongdoing.)
“When we say that this is an unprecedented case, we’re not saying it hyperbolically the way people use ‘unprecedented’,” said defense attorney Abbe Lowell, according to the newly disclosed transcript of an April 21 court hearing. “We literally mean it’s unprecedented. There is not a case like it.”
Never before has the Espionage Act of 1917 been used to prosecute uncleared, non-governmental persons who are engaged in protected First Amendment activities (not espionage) for receiving and transmitting national defense information.
If these defendants are guilty of a crime, then so are many other people.
“I think Mr. Lowell is absolutely right,” Judge T.S. Ellis, III said at the April 21 hearing. “It is an unprecedented, it’s a novel case.”
Prosecuting attorney Kevin DiGregory argued that the defendants had conspired to improperly gather and disseminate classified information and therefore “they stand in the shoes of a thief.”
But the court rejected that assertion.
“You’re not going to attempt to prove, and it isn’t alleged in the indictment, that these defendants in some way conspired to steal [the information],” said Judge Ellis. “I don’t think you gain much from an analogy that doesn’t fit.”
“I find this a very, very hard problem,” he said. “I’m exquisitely sensitive to the [defendants’] motion to dismiss that I’m continuing to consider,” he said.
Assuming the case is not dismissed, the trial will begin August 7.
A copy of the transcript of the April 21 hearing on the matter was obtained by Secrecy News.
The AIPAC case may be a prelude to the establishment of an American version of the British Official Secrets Act, wrote civil libertarian Nat Hentoff. See “Chilling Free Speech” by Nat Hentoff, Washington Times, May 8.
The case could “change the nature of how news is gathered in Washington and how lobbyists and academics interact with the government,” wrote author David Wise. See “Read the News, Go to Jail,” by David Wise, Los Angeles Times, April 30.
Both articles were entered into the Congressional Record yesterday by Rep. Jim McDermott (D-WA). See “The Big Chill in Washington, DC,” May 9.