Aipac Trial Postponed, Again

Government's Case May Be in Disarray

By JOSH GERSTEIN, Staff Reporter of the Sun
March 21, 2008 updated 7:38 pm EDT

A judge has again delayed the trial of two pro-Israel lobbyists after prosecutors indicated they may take an unusual pre-trial appeal of a ruling on what classified information the defense may present to the jury.

At a hearing today in federal court in Alexandria, Va., Judge Thomas Ellis III postponed indefinitely the trial that had been set for April 29 for the two former employees of the American Israel Public Affairs Committee, Steven Rosen and Keith Weissman.

Messrs. Rosen and Weissman were charged in 2005 with conspiring to receive classified information and pass it on to journalists and foreign diplomats.

Prosecutors told Judge Ellis that they are likely to file a notice of appeal of a lengthy order he issued Wednesday after months of hearings under the Classified Information Protection Act. Lawyers close to the case cautioned that the notice is simply a mechanism to protect the government's right to appeal and does not necessarily mean an appeal will be pursued.

A spokesman for the prosecution, James Rybicki, confirmed the in-courtroom events. He would not comment on whether prosecutors had approval from officials in the Solicitor General's office at the Justice Department to pursue an appeal, which would be directed to the 4th Circuit in Richmond, Va.

Mr. Rosen's defense attorney, Abbe Lowell, expressed frustration over the further delay. "It now appears the government does not want to try this case," Mr. Lowell told The New York Sun this evening. "They filed these charges almost three years ago without thinking them through and there doesn't appear to be anybody in the government with either the authority or the courage to admit they made a mistake. The delays are devastating to Steve Rosen and Keith Weissman."

Mr. Lowell's suggestion of disarray in the prosecution team seemed to refer to the fact that a longtime lead prosecutor on the case, Kevin DiGregory, quit last month and took a job with a private law firm.

Under the law, an appeal of the classified-information order is supposed to be expedited, but lawyers said it was unclear how quickly the 4th Circuit would move if an appeal is pursued.

At issue is an order of more than 270 pages that Judge Ellis issued setting out what classified information the defense can use at trial and how classified information can be paraphrased or substituted. The judge cannot force the government to abide by the order, but he has the authority to dismiss the case or to impose some other sanction such as partial dismissal or exclusion of evidence important to the government.

In federal court, appeals are not usually permitted during pretrial proceedings, but the classified-information law, known as Cipa, permits them. Nevertheless, such appeals are rare. One previous Cipa appeal in the 4th Circuit was taken in the case of a former CIA station chief for Costa Rica charged with making false statements in the Iran-Contra probe, Joseph Fernandez. A district judge in Alexandria, Claude Hilton, threw the case out after the government refused to accept his rulings on what classified information was essential to the defense. The 4th Circuit upheld the dismissal.

Judge Ellis indicated today that he plans to hold another hearing next week to discuss how to proceed with the case against Messrs. Rosen and Weissman.

Aipac Trial Postponed, Again

Government's Case May Be in Disarray

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