A federal appeals court has handed another serious defeat to the prosecution of two pro-Israel lobbyists accused of trafficking in classified information, though a cryptic footnote could offer some hope to the government.
On Tuesday, the Richmond, Va.-based U.S. Court of Appeals for the Fourth Circuit refused to overturn a lower judge’s ruling that the two American Israel Public Affairs Committee, Steven Rosen and Keith Weissman, had the right to use two classified documents as part of their defense.
In an unusual pre-trial appeal, the Justice Department argued that the records, an FBI report and a document describing the briefing Israeli officials gave the U.S. about Palestinian arms smuggling were irrelevant to the case, in large part because Rosen and Weissman are not alleged to have seen the documents.
The three-judge appeals court panel said it had doubts about the relevance of the Israeli briefing document, but was bound to defer to the trial judge, T.S. Ellis III.
“We may not substitute our judgment for that of the trial court, which has been immersed in these proceedings for many months and has far more familiarity with the matter
than we do,” Judge Robert King wrote, joined by Judges Roger Gregory and Dennis Shedd.
Portions of the appeals court’s opinion were deleted, apparently because they contained classified information.
Last week, in a blow to the prosecution, Ellis ruled that Rosen and Weissman have the right to call a former federal classification czar, J. William Leonard, as a witness. Leonard is expected to testify that over-classification is pervasive in the federal government and that the information Rosen and Weissman allegedly received may not have been classified at all.
However, in a footnote Tuesday, the appeals court delivered what may have been a brush-back pitch to Ellis.
In a key ruling in 2006, Ellis found that, to win a conviction, prosecutors had to show Rosen and Weissman knew what they were doing could harm the U.S. or help an enemy. The judge also said the government would have to show Rosen and Weissman knew what they were doing was illegal.
The Justice Department asked the appeals court to overturn that order, but the court ruled last year that it was not ripe for review. The three appeals judges stood by that position Tuesday, but added this in a footnote: “We are nevertheless concerned by the potential that the…order imposes an additional burden on the prosecution not mandated by the governing statute.”
The judges wrote that the law under which Rosen and Weissman were charged, the Espionage Act, “must be applied according to its provisions, as any other course could result in erroneous evidentiary rulings or jury instructions.”
The judicial aside has no direct impact on Ellis’s decision, though it could persuade him to revisit the matter. If he did, the government might not like the ultimate outcome. Ellis’s ruling suggests he believes that, without the additional requirements on the prosecution, the law would be unconstitutional.
A defense attorney for Rosen, Abbe Lowell, hailed the long-awaited decision from the appeals court.
“In addition to arguing that this is a misdirected case from the get-go, the defendants have stated they ought to have the right to use relevant classified information in their defense. The government has fought that and now both Judge Ellis and the court of appeals have agreed with the defense,” Lowell said. “We’re most anxious to get to trial.”
Lowell declined to comment on the potentially troublesome footnote.
A lawyer for Weissman, John Nassikas, declined to comment.
The Justice Department could seek to appeal the decision to the full bench of the 4th Circuit, but officials were noncommittal yesterday.
“We are reviewing the decision and will respond in court,” Peter Carr, a spokesman for the prosecutors, said.
Rosen and Weissman were indicted in 2005 on charges they obtained classified information from government officials and passed it to journalists, diplomats and others. The pair pled not guilty. A trial is set for April, but lawyers involved in the case have said they expected it to be delayed again.
The defense team is hopeful that President Obama’s appointees at the Justice Department will review the case and decide to drop it, especially in light of the recent rulings. However, such a decision could cause an outcry among career prosecutors and FBI agents eager to proceed with the prosecution of the two ex-lobbyists.
Tuesday, February 24, 2009
Friday, February 6, 2009
Bid to Reclassify Guantanamo Data Marches On
Despite President Obama’s promises to bring a new wave of transparency to government, the Justice Department is still opposing a media-led effort to give the public access to certain court records pertaining to war-on-terror detainees at Guantanamo Bay.
Government lawyers submitted a legal brief last week objecting to an attempt by the Associated Press, the New York Times and USA Today to view some government filings in habeas corpus cases brought on behalf of Guantanamo detainees. The filings in dispute are portions of so called “factual returns” in which the government offers evidence said to justify keeping each detainee locked up.
The government filed the documents under seal but said the contents were unclassified. Now, however, the Justice Department says some of the data should have been classified.
“Regrettably, the speed of the redaction process resulted in errors, and subsequent review has revealed that classified material was not fully redacted from the unclassified returns,” Justice Department lawyers wrote. They said they fear that classified information could be assembled from a number of different cases to form a “mosaic” that would be inimical to national security.
“If the unclassified factual returns were released to the public now… the classified information contained therein could be aggregated and analyzed by interests hostile to the United States,” government attorneys wrote.
The Justice Department said officials plan to review the documents again and file some portion of them publicly, but the newspapers’ lawyers have argued that re-redacting the documents could do more harm than good by alerting detainees, who saw the original filings, to exactly which information was mistakenly declassified.
Justice Department attorneys also argued that there is no First Amendment right to view any court documents filed in connection with the habeas cases. “There is no tradition of judicial proceedings at all in these circumstances, much less open proceedings,” the lawyers wrote. They noted that oral arguments, unclassified versions of briefs, and opinions in the cases have been made public.
The Justice Department’s request to reclassify some of the records and keep them secret was filed in December. After President Obama was sworn in, the Justice Department asked judges for delays to re-evaluate the government’s position on some Guantanamo-related issues, but no delay was requested to review the government’s opposition to the newspapers’ request to obtain the records.
Approximately 135 habeas cases are pending in federal court in Washington seeking the release of or changes to the conditions of confinement for about 210 of the roughly 245 prisoners at Guantanamo Bay. Soon after taking office last month, Obama ordered Guantanamo closed within a year and asked for a delay in pending military trials there. However, the question of what to do with the men detained there remains unresolved.
Government lawyers submitted a legal brief last week objecting to an attempt by the Associated Press, the New York Times and USA Today to view some government filings in habeas corpus cases brought on behalf of Guantanamo detainees. The filings in dispute are portions of so called “factual returns” in which the government offers evidence said to justify keeping each detainee locked up.
The government filed the documents under seal but said the contents were unclassified. Now, however, the Justice Department says some of the data should have been classified.
“Regrettably, the speed of the redaction process resulted in errors, and subsequent review has revealed that classified material was not fully redacted from the unclassified returns,” Justice Department lawyers wrote. They said they fear that classified information could be assembled from a number of different cases to form a “mosaic” that would be inimical to national security.
“If the unclassified factual returns were released to the public now… the classified information contained therein could be aggregated and analyzed by interests hostile to the United States,” government attorneys wrote.
The Justice Department said officials plan to review the documents again and file some portion of them publicly, but the newspapers’ lawyers have argued that re-redacting the documents could do more harm than good by alerting detainees, who saw the original filings, to exactly which information was mistakenly declassified.
Justice Department attorneys also argued that there is no First Amendment right to view any court documents filed in connection with the habeas cases. “There is no tradition of judicial proceedings at all in these circumstances, much less open proceedings,” the lawyers wrote. They noted that oral arguments, unclassified versions of briefs, and opinions in the cases have been made public.
The Justice Department’s request to reclassify some of the records and keep them secret was filed in December. After President Obama was sworn in, the Justice Department asked judges for delays to re-evaluate the government’s position on some Guantanamo-related issues, but no delay was requested to review the government’s opposition to the newspapers’ request to obtain the records.
Approximately 135 habeas cases are pending in federal court in Washington seeking the release of or changes to the conditions of confinement for about 210 of the roughly 245 prisoners at Guantanamo Bay. Soon after taking office last month, Obama ordered Guantanamo closed within a year and asked for a delay in pending military trials there. However, the question of what to do with the men detained there remains unresolved.
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