WASHINGTON (JTA) — The prosecution in the case against two former AIPAC staffers lost two key battles in recent days, raising hopes among the defense that the ex-officials of the pro-Israel lobby ultimately will be acquitted of all charges.
In decisions five days apart, judges quashed government efforts to block the rights of Steve Rosen, the American Israel Public Affairs Committee’s former foreign policy chief, and Keith Weissman, its former Iran analyst, to submit certain material or witnesses for evidence. The rulings, along with the scolding language of the judges’ decisions, suggests the courts view the government as having overreached in its prosecution of the pair for passing on classified information.
On Feb. 19, T.S. Ellis III, the federal judge trying the case in Alexandria, Va., decided to allow defense testimony by William Leonard, the official who until a year ago was the ultimate government authority on what information to classify.
Then, on Tuesday, the 4th Circuit Court of Appeals in Richmond, Va., issued a ruling that upheld orders by Ellis that the prosecution must prove that the information Rosen and Weissman allegedly relayed to journalists, Israeli diplomats and colleagues was "closely held" by the United States and potentially damaging to U.S. interests, and was relayed in bad faith.
This would meet the standards for the burden of proof set by the 1917 espionage law under which Rosen and Weissman are being tried.
The Ellis ruling “set a very high threshold for the prosecution to not only demonstrate a particular set of facts, but also to prove intent on the part of the defendant,” explained Steven Aftergood, the director of the Secrecy Project at the Federation of American Scientists, which seeks to protect First Amendment rights.
“That is a difficult and possibly impossible task,” Aftergood said. “The prosecution is left with its all-but-insurmountable burden of proof.”
In what some are calling a rebuke of the government, the three-judge appeals court panel called "improper" the government’s effort to overturn Ellis’ 2006 decision.
"The government’s attempt to piggyback a pretrial review of the court’s interpretation is improper at this juncture," the panel said.
In classified information cases like these, pretrial prosecution appeals are meant only to address questions of what classified evidence is admissible, the appeals court noted. The government already had attempted to broaden its narrow grounds for appeal, and last summer the appeals court rejected that bid.
"Our dismissal of that appeal constitutes the law of the case, and we will not revisit it," the appeals court panel said this week.
Some observers close to the defendants say these decisions over the last week give the Obama administration an opportunity to reconsider whether to go ahead with the case, which has proven controversial.
For their part, lawyers for Rosen and Weissman were elated.
"This is a tremendous victory for the defendants," said Baruch Weiss, who represents Weissman.
"The ruling of the 4th Circuit is just the latest confirmation that this is a misdirected case brought under a misdirected theory where the government continues to be reminded that they are wrong,” said Abbe Lowell, the attorney for Rosen. “Steve Rosen and Keith Weissman are anxious to now use all of the various court rulings to move ahead and finally try this case to prove their innocence."
If the case ever goes to trial, which is scheduled for April 21.
In pretrial hearings, prosecutors have suggested that Ellis’ restrictions create a high barrier to overcome in a trial that has been delayed multiple times over four years.
Peter Carr, a spokesman for the U.S. Attorney’s Office in eastern Virginia, told JTA after this week’s ruling that "We are reviewing the decision and will respond accordingly.”
The decision by Ellis to allow Leonard to testify also contained reproachful language. The government had argued that because Leonard had consulted for about an hour with prosecutors in 2006, he was barred from testifying for the defense under laws that restrict government employees involved in a case from testifying against the United States.
Prosecutors had threatened to jail Leonard for up to a year if he testified, but Ellis rejected their request to ban his testimony. Ellis questioned whether prosecutors sought Leonard’s removal because his theories about government overclassification, which Leonard made plain in his 2006 meeting with them, would assist the defense.
"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.
This week’s ruling provides a potential opening for the Obama administration, which has been eager to undo some of the secrecy provisions instituted by President Bush, to drop the case.
Despite the Bush administration’s closeness to the pro-Israel community, its fingerprints were all over the case, which was of a piece with the administration’s efforts to restore executive powers and expand secrecy.
The case was brought in 2005 by Paul McNulty, a U.S. attorney who later was named deputy attorney general. Before then, McNulty was best known for his work to impeach President Clinton and during the 2000 electoral recount in Florida.
The decision not to revisit Ellis’ rulings buries at last all arguments by prosecutors that the 1917 espionage statute did not require proof of bad faith and that its baseline was that the release of the information might help a foreign government, not necessarily that it would harm the United States.
The section of the law that criminalized the receipt and distribution of national defense information by civilians has barely been tested in the courts.
The appeals court ruling Tuesday contained other victories for the defense.
It upheld Ellis’ allowance of an "Israeli briefing document" — apparently relevant because it shows that U.S. officials were relaying to Israeli counterparts information almost identical to that referred to in the original indictment. The briefing document also allowed an FBI report that may help show that information allegedly discussed by Weissman in a conversation about the 1996 bombing of a housing complex for U.S. troops in Saudi Arabia was broadly known.
Ellis’ ruling also allows a number of National Security Presidential Directives on Iran.
FBI agents raided AIPAC’s offices in August 2004. Rosen and Weissman were indicted a year later.