AIPAC Defendants Did Not Seek Classified Document, Court Rules

08.14.06 | 3 min read | Text by Steven Aftergood

In a favorable decision for two former officials of the American Israel Public Affairs Committee who are charged with conspiracy to unlawfully gather national defense information, a federal court ruled (pdf) late last week that they did not solicit actual classified documents and that the government cannot now claim that they did.

The latest decision follows an earlier ruling last week that denied the defendants’ motion to dismiss the case altogether.

The only document that was solicited by the defendants was described in their August 2005 indictment (pdf) as “not classified.”

“Significantly, this is the only overt act in which one of the defendants is alleged to have requested a document from a government official,” the court noted in the new ruling.

“While defendants are alleged to have discussed classified information with government officials, including information contained in classified documents, the superseding indictment does not allege that either [defendants] Rosen or Weissman ever sought an actual copy of any classified document from a government official,” the court noted.

But lately, the prosecution has changed its position and now wants to argue that the requested document was in fact classified after all.

The court said no. To make such a claim at this stage is not permissible since it “alters an essential fact alleged in the superseding indictment” and would therefore be unconstitutional.

The August 11 ruling by Judge T.S. Ellis, III, was first reported today by the New York Sun.

While advantageous to the defendants, the new ruling underscores the radical implications of this unprecedented case.

The upshot of the court’s interpretation is that the defendants (or anyone else) may be guilty of violating the Espionage Act even if they did not solicit classified “documents,” but only “information.” And not only that, the “information” they gather need not be classified, as long as it is “related to the national defense” and closely held by the government.

“Although not strictly necessary, nor always sufficient, the classification of information is highly probative of whether it is, in fact, ‘information related to the national defense’ such that a defendant could be prosecuted for its unauthorized disclosure,” the latest ruling said.

This is a crucial observation.

Classification may “not [be] strictly necessary” to justify prosecution of unauthorized disclosures (including disclosures by non-governmental persons such as the defendants) since, the Court affirmed, there are various kinds of unclassified, national defense-related information that are protected by the Espionage Act.

(On the other hand, mere classification may not be “sufficient” to render information protected by the specific terms of the Espionage Act because there are some kinds of classified information, e.g. some diplomatic or intelligence information, that are plainly not related to “national defense.”)

I discussed some of the implications of the AIPAC case on the NPR program On the Media this week (“No Secrets Allowed”).

And though Lebanon has one or two other things to worry about these days, word of last week’s decision in the AIPAC case was even featured in the Lebanese news outlet Ya Libnan, datelined “Beirut and Washington” (based on a Washington Post story by Jerry Markon).

See all publications
Nuclear Weapons
New Voices on Nuclear Weapons Fellowship: Creative Perspectives on Rethinking Nuclear Deterrence 

To empower new voices to start their career in nuclear weapons studies, the Federation of American Scientists launched the New Voices on Nuclear Weapons Fellowship. Here’s what our inaugural cohort accomplished.

11.28.23 | 3 min read
read more
Science Policy
Expected Utility Forecasting for Science Funding

Common frameworks for evaluating proposals leave this utility function implicit, often evaluating aspects of risk, uncertainty, and potential value independently and qualitatively.

11.20.23 | 11 min read
read more
Nuclear Weapons
Nuclear Notebook: Nuclear Weapons Sharing, 2023

The FAS Nuclear Notebook is one of the most widely sourced reference materials worldwide for reliable information about the status of nuclear weapons and has been published in the Bulletin of the Atomic Scientists since 1987. The Nuclear Notebook is researched and written by the staff of the Federation of American Scientists’ Nuclear Information Project: Director Hans […]

11.17.23 | 1 min read
read more
Social Innovation
Community School Approach Reaches High of 60%, Reports Latest Pulse Panel

According to the National Center for Education Statistics’ August 2023 pulse panel, 60% of public schools were utilizing a “community school” or “wraparound services model” at the start of this school year—up from 45% last year.

11.17.23 | 4 min read
read more