New twists in the AIPAC case yesterday as the defense for two pro-Israel lobbyists accused of illegally obtaining and disclosing American national security secrets argued that some of the data the men allegedly conspired to reveal came directly from the Israeli government and was not actually secret.
At a hearing before the U.S. Court of Appeals for the 4th Circuit in Richmond, Va., three judges spent more than 90 minutes wrestling with the issue of how much classified information the defense should be permitted to introduce in the case of Steven Rosen and Keith Weissman, who were fired from top posts at the American Israel Public Affairs Committee after prosecutors disclosed the probe.
The beginning of yesterday's unusual court session was held in public, but about halfway through, the lawyers and the judges retreated behind closed doors in a specially-cleared and guarded courtroom to discuss the most sensitive aspects of the case. As they waited for the arguments to begin, defense lawyers leafed through fat binders marked in orange with the words, “TOP SECRET.”
Rosen and Weissman were indicted in 2005 on charges that they gathered secrets from U.S. officials and passed the confidential information to journalists, foreign diplomats and others in violation of the Espionage Act. The defendants have argued that what they did is no different than what journalists do every day when they try to glean sensitive information from government sources and publish it. Trial dates for the pair, who were fired from AIPAC, have been repeatedly canceled as wrangling over the classification issues dragged on.
The government filed the appeal heard yesterday, arguing that Judge T.S. Ellis III erred when he ruled the defendants could use a State Department document and another FBI document at a future trial.
“That information is not actually relevant to the crime that was charged,” an attorney in the Justice Department’s counterespionage section, Thomas Reilly, told the judges.
Rosen’s attorney, Abbe Lowell, said the State Department document demonstrates that Israel was circulating the intelligence reports his client is accused of disclosing to other AIPAC employees and a foreign national not named in the indictment.
“You have to be able to prove what the Israelis knew,” Lowell said. “In our defense, it is important that this information, discussed down the line by our client, is Israel-based.”
Lowell did not detail the Israeli information in the open session, but declassified court records indicate the document describes intelligence about the Karine-A, a ship Israel seized in 2002 in the Red Sea. Israel said the vessel was loaded with rifles, anti-tank missiles, rockets, mortars and other weapons destined for the Gaza Strip.
Sources close to the case said the State Department memo relates to a briefing a top Israeli intelligence official, Gen. Yossi Kuperwasser, gave American diplomats about the Karine-A during a trip to Washington in January 2002. Aipac’s Rosen got a similar briefing from Kuperwasser the same day.
Lowell suggested that the State Department memo was nearly identical to a note Rosen sent to fellow Aipac employees. “You’d be able to draw a line between the allegation and the assertion and where it’s from,” the defense attorney said.
Lowell also said a former State Department official, Carl Ford Jr., was prepared to testify that the bulk of the memo was actually unclassified.
“Who gets to define what’s classified is the Executive Branch,” Reilly insisted.
The nature of the FBI document in dispute was less clear, but a lawyer for Weissman, Baruch Weiss, said prosecutors want to prevent the defense from disputing which portion of the report made it so sensitive.
“The government wants to use the part of the document that is helpful to them and they don’t want us to use the part of the document that is helpful to us,” Weiss said.
The appeals judges, Robert King, Roger Gregory and Dennis Shedd, issued no immediate decision, but one said he was reluctant to disturb the rulings Judge Ellis arrived at after protracted hearings. “You have a very high hill to climb, especially with the time the judge spent in this case,” Judge Shedd told Mr. Reilly.
All three appeals jurists expressed skepticism about the government’s claim that the ruling on classified information opened up Judge Ellis’s other pre-trial decisions for immediate appeal. “That would be a change to what we normally apply,” Judge Shedd said.
Weiss said the general principle that federal prosecutors cannot appeal pre-trial rulings on legal and evidentiary issues and should not be deviated from just because classified information is at issue.
“I was a prosecutor myself. Many times, I lost things I’d have loved to appeal,” Mr. Weiss said. “I was stuck.”
However, Reilly said Congress was clear that cases involving national secrets should be handled differently. “The point… is to get it right before classified information is disclosed,” the prosecutor said.
Through his attorney, Mr. Rosen asked to be admitted to the secret portion of the argument yesterday but he was never allowed in.
Both sides in the case seemed to agree that if information came from Israel, even if it passed through U.S. Government hands, it could not be a basis for the charges against Rosen and Weissman. That seemed puzzling, since the mere fact that information came from a foreign government is usually a good enough reason to get it classified.
Lowell told me after the session that the reason for the discrepancy is that the Espionage Act refers to disclosure of "national defense information," not
"classified" information. Some classified information may not be NDI and some NDI may not be classified, though it has to be "closely held."
Based on the comments made by the judges, it appeared they were unlikely to disturb Judge Ellis's rulings, but such predictions are no science.
For what it's worth, Judge Shedd was appointed by President George W. Bush. Judge King was appointed by by President Clinton. Judge Gregory received a rare recess appointment from Clinton before being nominated to a permanent seat by President Bush.