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.)
As the United States continues nuclear modernization on all legs of its nuclear triad through the creation of new variants of warheads, missiles, and delivery platforms, examining the effects of nuclear weapons production on the public is ever more pressing.
“The first rule of government transformation is: there are a lot of rules. And there should be-ish. But we don’t need to wait for permission to rewrite them. Let’s go fix and build some things and show how it’s done.”
To better understand what might drive the way we live, learn, and work in 2050, we’re asking the community to share their expertise and thoughts about how key factors like research and development infrastructure and automation will shape the trajectory of the ecosystem.
Recognizing the power of the national transportation infrastructure expert community and its distributed expertise, ARPA-I took a different route that would instead bring the full collective brainpower to bear around appropriately ambitious ideas.