A federal appeals court dealt another setback to prosecutors in the case of two former employees of the American Israel Public Affairs Committee (AIPAC) who are charged under the Espionage Act with improperly receiving and transmitting national defense information. The appeals court rejected (pdf) a pre-trial appeal by the prosecution and affirmed the lower court rulings of Judge T.S. Ellis, III that define which classified information may be introduced at trial.
The appeals court said that the lower court had correctly assessed the relevance of two documents that the defense wished to introduce, referred to as the “FBI Report” and the “Israeli Briefing Document,” and that it had properly devised substitutions for certain classified information in the documents so that they may be presented at trial.
More importantly, the new ruling left undisturbed Judge Ellis’ ground-breaking interpretation of the procedural requirements of the Espionage Act. That August 2006 interpretation stated that in order for the Espionage Act to be constitutional, it must require prosecutors to show that the defendants possessed a series of “culpable mental states” and that they knowingly chose to violate the law. (See “Ruling in AIPAC Case Interprets Espionage Act Narrowly,” Secrecy News, February 20, 2007.) This imposes a substantial, perhaps insurmountable burden of proof that the prosecutors must meet in order to prevail.
The new ruling counts squarely as a win for the defense. But it also includes a hint of support for the prosecutors’ view that the lower court has made the Espionage Act too difficult to prosecute.
“We are … concerned by the potential that [Judge Ellis’ August 2006 ruling (pdf)] imposes an additional burden on the prosecution not mandated by the governing statute,” the appeals court said in a strikingly ambivalent footnote (footnote 8). That concern has no immediate legal consequences, but it suggests that the proper interpretation of the Espionage Act is not yet a settled matter.
Prosecutors have not yet indicated how they will respond to the new ruling. A new trial date may be determined at a status hearing set for February 26. (See additional coverage from the Washington Post, the Washington Times, the Jewish Telegraphic Agency, Forward, the Jerusalem Post, EmptyWheel, and Josh Gerstein.) (The trial has been rescheduled for June 2, 2009.)
Satellite imagery of RAF Lakenheath reveals new construction of a security perimeter around ten protective aircraft shelters in the designated nuclear area, the latest measure in a series of upgrades as the base prepares for the ability to store U.S. nuclear weapons.
It will take consistent leadership and action to navigate the complex dangers in the region and to avoid what many analysts considered to be an increasingly possible outcome, a nuclear conflict in East Asia.
Getting into a shutdown is the easy part, getting out is much harder. Both sides will be looking to pin responsibility on each other, and the court of public opinion will have a major role to play as to who has the most leverage for getting us out.
How the United States responds to China’s nuclear buildup will shape the global nuclear balance for the rest of the century.