Burden of Proof in AIPAC Case is “Not Insubstantial,” Court Says

A federal court this month denied a motion that would have eased the government’s prosecution of two former officials of the American Israel Public Affairs Committee who are charged with mishandling classified information.

Prosecutors had argued that they should not be obliged to prove that the defendants “actually knew the disclosure of the information was potentially harmful to the United States.”

But in a ruling from the bench on November 16, Judge T.S. Ellis III denied the motion and said they must prove the defendants had such knowledge.

The transcript of the November 16 hearing (pdf) was placed in the court docket yesterday and a copy was obtained by Secrecy News.

The latest ruling followed a momentous August 14 decision that non-government personnel who are not accused of espionage could be tried under the Espionage Act for receipt and transmission of classified information. In that decision, Judge Ellis denied a defense motion to dismiss the case altogether on constitutional and other grounds.

But he also imposed significant requirements on the prosecution to show that the defendants knew they were obtaining closely held national defense information; knew that it was unlawful to disclose that information; knew that the recipients in the press and a foreign embassy were not authorized to receive it; and that the defendants knew that disclosure of the information would be potentially damaging to the United States.

In an August 18 motion for clarification (pdf), prosecutors objected to the last requirement.

“Case law does not support the notion that ‘willful’ intent requires the government to prove that a defendant actually knew the information was potentially harmful to the United States,” the government argued.

But it does now, Judge Ellis said.

“To the extent that the motion seeks clarification that the Government need not prove at all that the defendants knew that their disclosure was potentially harmful to the United States, that’s not clarification, that’s reconsideration. So, I will deny it.” (Transcript, page 10).

As a result of the ruling, the prosecution faces a considerable, possibly insurmountable obstacle.

“You prevailed in significant part [against the defendants’ earlier motion to dismiss],” Judge Ellis told prosecutors on November 16. But “in prevailing, you have a burden that is not insubstantial.”

Likewise, “in losing [the motion to dismiss, defense attorneys] Mr. Nassikas and Mr. Lowell see some benefits to them,” Judge Ellis observed.

Given the difficulty of meeting the Court’s requirements, the fear that this unprecedented case would have a chilling effect on reporters and public interest advocates who depend upon unauthorized access to classified information has been muted somewhat.

Today, it might be noted, the New York Times published the full text of a classified November 8 memorandum from National Security Advisor Stephen Hadley regarding Iraq.

A trial date in the AIPAC case had originally been set for August 2006. But due to the complexity of the case the date has been repeatedly deferred. Judge Ellis said he would reserve May and June 2007 for a possible trial.

He also said that a leak investigation into who disclosed pre-indictment reports of the case to CBS News in August 2004 is “ongoing.”