In August 2005, Steven Rosen and Keith Weissman of the American Israel Public Affairs Committee (AIPAC) were indicted under the Espionage Act on the extraordinary charge that they had improperly received and transmitted classified information that was provided to them by a government official. More than three years later, their case has still not gone to trial.
But next week a federal appeals court will hold a hearing on a government motion to reverse certain lower court rulings concerning the disclosure of classified information at the still unscheduled trial, if and when it does finally occur.
Both the law and the facts of the case are in significant dispute.
From the prosecution’s perspective, the two defendants “conspired to obtain classified information from government sources and passed that information to a foreign government, journalists and others, in violation of [the Espionage Act].”
Yet in an August 20 response (pdf) that was redacted and unsealed last week, the defense not only denied guilt but also said it would prove that no crime had been committed:
“Defendants will demonstrate, among other things, that they acted with innocent states of mind, believing they were acting in the national interest, that officials were authorized to disclose the information to them, and that their conduct was lawful and necessary to save both American and Israeli lives. They will demonstrate that the information at issue was in the public domain, was not damaging to national security, and was not even classified.”
At the hearing next week on October 29, prosecutors will argue that Judge T.S. Ellis, III, who presides over the case in the lower court, “erroneously authorized the disclosure of irrelevant classified information at trial.” Furthermore, they said in a September 12 reply brief (pdf), Judge Ellis “improperly grafted on to Section 793 [of the Espionage Act] several additional intent elements that are nowhere to be found in the statute and [he] repeatedly misapplied the test by which the government’s classified information privilege is adjudged.”
The government’s harsh assessment of Judge Ellis’s handling of the case is remarkable since he is an extremely cautious and deliberate judge (and a Reagan appointee). In an additional complication for the government, Judge Ellis himself sometimes sits on the court of appeals as a designee, making it perhaps a bit less likely that his holdings will be easily overturned by his sometime colleagues.
Adding to the prosecution’s disarray, the U.S. Attorney who has been in charge of the case, Chuck Rosenberg, recently resigned. The lead prosecutor, Kevin DiGregory, quit several months ago.
Given the unusual charge, the questionable factual basis for the prosecution, and the unfavorable judicial reception so far, some observers wonder why the government continues to pursue the case.
In fact, “defendants in the classified-information case involving two former pro-Israel lobbyists are hoping a change in administrations next year will bring a fresh review of their prosecution, according to sources on the defense team,” writes Nathan Guttman in the Forward.