WASHINGTON (JTA) — The Bush administration’s former "classification czar" can testify for the defense in the case against two former AIPAC staffers.
Federal Judge T.S. Ellis III in an order released Wednesday allowed the testimony of William Leonard, who headed the Information Security Oversight Office, in the classified information leak case.
Leonard could be the most damaging witness to the prosecution when Keith Weissman, the American Israel Public Affairs Committee’s former Iran analyst, and Steve Rosen, its former foreign policy chief, go to trial for allegedly relaying classified information to colleagues, journalists and Israeli diplomats.
Lawyers for Rosen and Weissman sought the testimony of Leonard, who oversaw classification procedures from 2002 to 2008, and his predecessor, Steven Garfinkel, because both men have argued in retirement that the government overclassifies. Their expertise could undermine arguments that the information allegedly handled by Rosen and Weissman met the standards of "national defense information," which Ellis has said the government must prove.
Proving that information was classified is not by itself enough to show wrongdoing. Prosecutors must show it meets national defense information standards of being "closely held" by the United States and that its release could potentially damage the nation.
Prosecutors sought to bar Leonard from the witness stand, saying that his testimony would violate a law banning government officials who have been substantially involved in an investigation from testifying on behalf of any party contesting the United States in court cases arising out of the investigation.
In his order, Ellis summarily dismissed prosecution claims that an hourlong conversation prosecutors had with Leonard in 2006 qualified as "substantial involvement" in the investigation as defined by the law. In a footnote, the judge suggests that the true reason prosecutors sought to keep Leonard off the stand was that he made clear in the meeting that his views on overclassification would undermine rather than reinforce their case.
"That Leonard might disagree with the government is no reason to allow the government to invoke" the relevant statute "to prevent Leonard from serving as a defense expert," Ellis wrote.
FBI agents raided AIPAC offices in August 2004; Rosen and Weissman were indicted a year later. Their case has yet to come to trial, mostly because of disagreements over what information may be presented at trial.