richmond, va. | Two former AIPAC staffers accused of illegally disclosing national defense secrets can use some classified information at their trial, a federal appeals court ruled Feb. 24.
The unanimous decision by a three-judge panel of the 4th U.S. Circuit Court of Appeals is a setback in the government’s prosecution of Steven Rosen and Keith Weissman. The two former pro-Israel lobbyists were charged in 2005 with conspiring to obtain classified documents and sharing them with reporters and former diplomats
The indictment alleges that Rosen and Weissman conspired to obtain, and then disclosed, classified reports on issues relevant to American policy, including the al Qaida terror network; the bombing of the Khobar Towers dormitory in Saudi Arabia, which killed 19 U.S. Air Force personnel; and U.S. policy in Iran.
The trial, postponed at least nine times as the defense and prosecutors wrangled over the handling of classified information and other pretrial issues, is now set for April 21 in federal court in Alexandria, V
The appeals court ruling means “the defendants are able to present the defense they have asked to present and at this point are very anxious to get this case to trial,” Rosen’s attorney, Abbe Lowell, said in a telephone interview.
Lowell said the material Rosen and Weissman want to use at trial is crucial to their defense because it shows the information the defendants are accused of disclosing “was not classified, was not national defense information and its disclosure did not violate the law.”
They have argued that the information in which they traffic is commonly traded by Washington insiders, and that government officials tacitly support such disclosures.
The government could appeal the Feb. 24 ruling to the full appeals court or the U.S. Supreme Court, which likely would delay the trial again.
The ruling also could provide a potential opening for the Obama administration, which has been eager to undo some of the secrecy provisions instituted by President George W. Bush, to drop the case.
The prosecution and the fight to keep the classified information under wraps arose during the Bush administration; Lowell said he could not speculate on how the change in administrations might affect the case.
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 that it was relayed in bad faith.
This would meet the standards for the burden of proof set by the 1917 Espionage Act, a rarely used World War I-era law under which Rosen and Weissman are being tried.
“That is a difficult and possibly impossible task,” said Steven Aftergood, the director of the Secrecy Project at the Federation of American Scientists, which seeks to protect First Amendment rights. “The prosecution is left with its all-but-insurmountable burden of proof.”
Rosen and Weissman, who worked for the American Israeli Public Affairs Committee, are not charged with espionage. The maximum penalty is 10 years per count — Rosen is charged with two counts and Weissman with one.
A former Defense Department official, Lawrence A. Franklin, pleaded guilty to providing Rosen and Weissman classified defense information and was sentenced to more than 12 years in prison.
Over prosecutors’ objections, Rosen and Weissman previously won the right to subpoena former Secretary of State Condoleezza Rice and other top Bush administration officials. The defense believes their testimony will support their claim that the United States regularly uses AIPAC to send back-channel communications to Israel.
Prosecutors also sought to exclude large portions of the classified material the defendants want to use at trial. The appeals court said U.S. District Judge T.S. Ellis carefully examined the proposed exclusions and “sought to fashion a substitution that would protect the defendants’ rights, while simultaneously preventing the unnecessary disclosure of classified information.”
JTA contributed to this report.