Appeals court to hear arguments in AIPAC case

By · August 15, 2008

Oral arguments in the U.S. government’s leak case against two former AIPAC staffers have been set for October.

On Thursday, the 4th Circuit Court of Appeals in Richmond, Va., scheduled oral arguments for Oct. 28-31 in the case against Steve Rosen, the American Israel Public Affairs Committee’s former foreign policy chief, and Keith Weissman, its former Iran analyst.

Rosen and Weissman are charged with receiving classified information and relaying it to journalists, Israeli diplomats and colleagues at AIPAC. The charges are based on a section of the 1917 Espionage Act that prosecutors have rarely invoked because its inclusion of civilians as legitimate targets for prosecution for handling information threatens First Amendment protections.

In March, the government had appealed rulings by U.S. District Court Judge T.S. Ellis deeming some classified evidence admissible. It also sought reversals of earlier Ellis decisions against closing the trial to public scrutiny and narrowing the constitutional scope of the statute so that prosecutors must prove Rosen and Weissman harmed the United States, and not merely helped Israel.

The 4th Circuit already ruled in June that it would only consider what classified evidence may be ruled admissible, and dismissed the government’s arguments on the closed court and the constitutionality of the charges. However, in its most recent filing last month, the government continued to press the latter issues.

Sources close to the defense say that the government appears determined to restore the entirety of the section of the Espionage Act underpinning the case, even though it has been knocked back by Ellis and the appeals court. Documents uncovered in recent years show that the Bush administration was considering using the section in question as a way to punish those receiving leaks even before the Sept. 11, 2001 terrorist attacks.

The appelate court often issues rulings based only on written briefs. The fact that the court has called for oral arguments suggests that the issue of what classified evidence may be deemed admissible at trial is proving vexing.

Ultimately, the government decides what evidence may be presented at trial. However, a judge may issue sanctions – and may even dismiss a case entirely – if the government refuses to allow the use of evidence that the judge has deemed admissible.

The Oct. 28 date for oral arguments in the appellate court almost certainly knocks back the latest trial date set by Ellis, also Oct. 28. Trial dates have been set and canceled at least five times since indictments were handed down three years ago.