The judge trying the case against two former pro-Israel lobbyists has given the trial a green light, setting the stage for a battle over free-speech rights and Israel’s role as an ally of the United States. Judge T.S. Ellis III on Thursday denied what had been the defense’s only possible bid for a dismissal of the case.
He rejected the argument that a never-used 1917 statute under which they have been charged violated the constitutional rights of Steve Rosen, the American Israel Public Affairs Committee’s former foreign policy director, and Keith Weissman, AIPAC’s former Iran analyst.
The statute criminalizes the receipt — not just the leaking — of “information relating to the national defense” which the possessor has “reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.”
But Ellis, a federal judge based in Alexandria, Va., made clear that he would set the bar high for the prosecution, because the case could have far-reaching implications.
“It must be said that this is a hard case, and not solely because the parties’ positions and arguments are both substantial and complex,” Ellis wrote in a 68-page ruling.
“It is also a hard case because it requires an evaluation of whether Congress has violated our Constitution’s most sacred values, enshrined in the First and the Fifth Amendment, when it passed legislation in furtherance of our nation’s security.”
Rosen and Weissman were charged a year ago with receiving classified information about Iran and terrorism from a number of U.S. government officials and relaying it to their colleagues at AIPAC, journalists and Israeli officials.
One of those officials, a mid-level Pentagon Iran analyst, Larry Franklin, pleaded guilty in January to leaking classified information.
A former federal prosecutor, analyzing Ellis’ ruling on Thursday, said the judge’s ruling in denying the motion had no legal bearing on the case itself. However, it served notice to prosecutors that the judge expected a high standard of evidence, Bill Mateja told JTA.
“The court’s going to be very mindful that the burden of proof with regard to relaying classified information is going to be more difficult,” Mateja said. “The prosecution will have to put on ample evidence that the defendants knew the information was classified.”
Rosen and Weissman were dismissed from AIPAC in March 2005. Their attorneys suggested they never had high hopes for a dismissal, and were heartened by Ellis’ cautionary tone.
“Given the always-long odds of having an indictment dismissed before trial, particularly when the government invokes the specter of ‘national security,’ we are disappointed, but not surprised, at the court’s decision,” said a joint statement from Abbe Lowell, Rosen’s lawyer, and John Nassikas, Weissman’s lawyer.
They noted that the judge called on the prosecution to prove that “national security is genuinely at risk” because of the alleged actions of Rosen and Weissman.
“As a result, we are more confident than ever about our clients’ innocence, and wish we could start the trial next week,” the lawyers said, an apparent dig at the prosecution, which still is sorting through mounds of secret evidence a year after the indictment.
The trial is unlikely to start before October.
The prosecution did not return calls for comment. AIPAC also did not comment. Prosecutors have said the lobby and its current staff are not implicated in the case in any way.
Ellis’ most important conclusion was that invoking the statute did not necessarily violate the defendants’ First Amendment right to free-speech.
Lawyers for the defense had argued that the 1917 statute had never been used before because it was impossible to enforce.
Such a sweeping statute places not just lobbyists but journalists, researchers and average citizens at risk, the lawyers had argued. They were backed by a battery of free-speech advocates.
Not so, Ellis said in his opinion, noting that the statute explicitly did not limit itself to government employees like Franklin.
“Congress’ attempt to provide for the nation’s security by extending punishment for the disclosure of national security secrets beyond the first category of persons within its trust,” meaning government employees, “to the general populace is a reasonable, and therefore constitutional exercise of its power,” the judge wrote.
Ellis’ decision set off alarms among free-speech activists.
“This is a momentous expansion of the government’s ability to penalize unauthorized disclosures,” said Steven Aftergood, who runs the Project on Government Secrecy for the Federation of American Scientists, a nuclear watchdog.
“Never before has a court said that a private citizen could be prosecuted for unauthorized receipt of classified information. It’s a whole new ballgame.”
Apparently mindful of such reactions, Ellis suggested that at the trial, he would considerably narrow the prosecution’s scope for invoking national security.
The information “must necessarily be information which if disclosed, is potentially harmful to the United States, and the defendant must know that disclosure of the information is potentially harmful to the United States,” he wrote.
Ellis suggested that the clause of the statute criminalizing the receipt of information “to the advantage of any foreign nation” might be unconstitutional. Ellis cited precedent to argue that the statute should apply only to information that would benefit enemies of the United States.
Targeting information that would benefit allies is “inconsistent with the obvious purpose of the statute and the command of the First Amendment, and must be rejected,” he wrote.
Ellis cited a 1945 Supreme Court ruling that warned of “extravagant and absurd consequences” of criminalizing the sharing of information with a “friendly power” or “ally.”
That could put the prosecution in the position of having to argue that Israel is not necessarily a “friendly power.”
Ellis, who has struggled with the case for months, concluded by suggesting that it was time for Congress to update a classified-information law that dated to the age of telegraphs and carrier pigeons.
Technological advances, he said, “should suggest to even the most casual observer that the time is ripe for Congress to engage in a thorough review and revision of these provisions to ensure that they reflect both these changes, and contemporary views about the appropriate balance between our nation’s security and our citizens’ ability to engage in public debate about the United States’ conduct in the society of nations,” he wrote.