Prosecutors Argue for More Secrecy in Aipac Case

A federal judge went too far when he ruled that two pro-Israel lobbyists charged with trafficking in classified information were entitled to present certain secret information in court to mount their defense, prosecutors argued in a new brief filed with a federal appeals court.Large portions of the public version of the brief were blacked out, but the thrust of the government’s argument was that Judge Thomas Ellis III should have treated the former employees of the American Israel Public Affairs Committee, Steven Rosen and Keith Weissman, more like typical spies and less like foreign policy advocates who stumbled into classified information as they pursued their work.“The district court’s view that unlawfully conspiring to disclose classified information about troop movements to a foreign government is ‘patently’ unprotected by the First Amendment, but disclosing classified information to a foreign government about terrorist attacks on those same troops is a ‘core value’ of the First Amendment proves the point that ‘judges … have little or no background in the delicate business of intelligence gathering,'” prosecutors wrote in the brief filed late Friday night. “Clandestinely obtaining and passing U.S. government classified information to the Israeli government does not represent participation in a ‘public debate’ to ‘influence United States foreign policy.'”Messrs. Rosen and Weissman were indicted in 2005 on charges that they conspired to obtain classified information and disclose it to journalists and Israeli government officials. The pair, who have pleaded not guilty, are set to stand trial in October, but the trial date has been repeatedly delayed and lawyers expect it to be put off again as the parties await a ruling from the appeals court.A defense department analyst who leaked information to the pair, Lawrence Franklin, pleaded guilty, received a 12-year prison term, and is cooperating with prosecutors.The precise information the two lobbyists allegedly obtained and relayed to others has never been described in public court filings. However, sources have said some of the information relates to Iranian involvement in attacks on American forces in Iraq.The government is asking the appeals court to reverse a pre-trial ruling that the defendants were entitled to disclose two documents at trial, neither of which is described in detail in the public version of the new brief. One appears to be an American document used to prepare a briefing for Israeli officials. Another is an FBI report.The brief suggests that prosecutors were willing to disclose portions of the reports for use at trial, but Judge Ellis appears to have ruled that the defendants were entitled to use more to put the information in context.“None of the classified information in the FBI Report or the Israeli Briefing Document that the government sought to prevent from disclosure has anything to do with this case. To this day, the defendants have never seen this information,” the prosecutors wrote. “Defendants are graymailing the government with a speculative and tenuous theory of relevancy,” the government wrote, describing a tactic in which defendants in a case involving classified information seek to scuttle the prosecution by threatening to force the disclosure of highly sensitive information.“The district court’s faulty relevance ruling would negatively impact future espionage prosecutions. Spies would communicate, orally or otherwise, chosen portions of extremely sensitive documents and then argue they are entitled to disclose the entire contents for comparison purposes,” the prosecutors argued.In March, after more than two years of litigation on the issue, Judge Ellis entered his 278-page ruling on what classified information the defendants were entitled to present. The order remains under seal. Prosecutors also sought to appeal other orders entered by the judge, including one setting a high burden of proof for the government and another rejecting the government’s plan to prevent the public from learning of some classified information to be provided to the jury at trial.Last month, the appeals court rebuffed the prosecution’s effort to appeal the other rulings. However, the government’s new brief presents the issues as intertwined and seems to invite the appeals court to reconsider its prior ruling.Judge Ellis has no authority to order the disclosure of any classified information in the case. However, if the government refuses to declassify information he deems necessary for the defense, he can impose sanctions, which could range from limiting government evidence to dismissing the case altogether.The defense’s response to the new brief is due next month.

Prosecutors Argue for More Secrecy in Aipac Case

Prosecutors Argue for More Secrecy in Aipac Case

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