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.)
With thoughtful policy action, it is still possible to build systems that are fair, transparent, and accountable, and to earn the public trust that will ultimately determine AI’s future. We hope policymakers are ready to act.
Procurement is not merely an administrative function—it is how AI enters government and the first line of defense for responsible AI in the public sector.
Responsible AI starts with who is in the data, who is at the table, whose needs shape the outcome, and who is responsible when it falls short.
There is no question this is a Big Deal. If you are a university or research lab, or aspire to work in one, or are simply an enthusiast of federally-funded research, what’s next will matter.