AIPAC lob­by­ists win ap­peal for open data in es­pi­onage case

The Washington Times Weekly - - National Security - BY ELI LAKE

The U.S. gov­ern­ment on Feb. 24 lost a crit­i­cal ap­peal in a case in­volv­ing Amer­ica’s largest pro-Is­rael or­ga­ni­za­tion — a de­vel­op­ment that could bol­ster the rights of re­porters, lob­by­ists and so­cial ac­tivists to ob­tain and pub­li­cize classified gov­ern­ment in­for­ma­tion.

The 4th U.S. Cir­cuit Court of Ap­peals re­jected the gov­ern­ment’s lat­est ef­fort to loosen the high stan­dard it has to meet to pros­e­cute Steven J. Rosen and Keith Weiss­man, who are for­mer lob­by­ists for the Amer­i­can Is­rael Pub­lic Af­fairs Com­mit­tee (AIPAC).

The two men were ac­cused in 2005 un­der a 1917 es­pi­onage law of ob­tain­ing classified in­for­ma­tion about Iran and leak­ing the in­for­ma­tion to a Wash­ing­ton Post re­porter and an Is­raeli diplo­mat. The case has at­tracted strong in­ter­est from both the for­eign pol­icy com­mu­nity and civil lib­er­ties groups.

Mr. Rosen and Mr. Weiss­man are the first pri­vate cit­i­zens pros­e­cuted un­der the Es­pi­onage Act for mis­han­dling classified in­for­ma­tion ob­tained through con­ver­sa­tion, a prece­dent that, if up­held, could make much na­tional se­cu­rity jour­nal­ism and for­eign­pol­icy lob­by­ing a fed­eral crime.

Ad­vo­cates of more open­ness in­volv­ing na­tional-se­cu­rity mat­ters said the rul­ing Tues­day could spell the end of the case.

“I think it dic­tates a los­ing out­come for the gov­ern­ment sooner rather than later,” said Steven After­good, di­rec­tor of the project on gov­ern­ment se­crecy at the Fed­er­a­tion of Amer­i­can Sci­en­tists. “This has been an ex­traor­di­nary case in which non­govern­ment em­ploy­ees who do not hold se­cu­rity clear­ances are ac­cused of a crime based on the fact that they re­ceived classified in­for­ma­tion and dis­sem­i­nated it. That is the kind of trans­ac­tion that count­less re­porters, lob­by­ists and ac­tivists en­gage in all the time. This was re­ally a land­mark case that could have been dis­as­trous for free­dom of the press if it turned out an­other way.”

“It’s a re­ally good week for us,” said Mr. Weiss­man, who, like Mr. Rosen, lost his job at AIPAC af­ter the charges were filed. “It’s not done, but the land­scape may shift.”

AIPAC and Mr. Rosen de­clined to com­ment.

The ap­peals court ruled that it did not have the ju­ris­dic­tion to re- open a 2006 rul­ing by Judge T.S. El­lis III that the prose­cu­tion must prove that Mr. Rosen and Mr. Weiss­man knew the in­for­ma­tion they had re­ceived and dis­closed was po­ten­tially dam­ag­ing to na­tional se­cu­rity.

“That is a very high bar to meet in court,” said Baruch Weiss, an at­tor­ney for Mr. Weiss­man.

Gregg Les­lie, le­gal-de­fense di­rec­tor for the Re­porters Com­mit­tee for Free­dom of the Press, said he was pleased that a higher stan­dard for pros­e­cut­ing pri­vate cit­i­zens ap­pears to re­main.

“We are def­i­nitely happy to see that again the judges are de­mand­ing a great deal for a pri­vate ci­ti­zen in this case, or a jour­nal­ist in an­other case, to be pros­e­cuted un­der the es­pi­onage statute,” he said.

Peter Carr, a spokesman for the U.S. at­tor­ney’s of­fice for the East­ern District of Vir­ginia, said the gov­ern­ment was “re­view­ing the de­ci­sion and will re­spond in court.”

An ini­tial ap­peal by the gov­ern­ment at­tempted to limit the classified doc­u­ments that the de­fense could in­tro­duce.

“The de­fen­dants have said they needed to show classified in­for­ma­tion to show that their dis­clo­sures did not vi­o­late the law,” said Abbe Low­ell, at­tor­ney for Mr. Rosen. “The trial court agreed with them, and now the court of ap­peals has agreed as well. With the court’s rul­ings on what the gov­ern­ment must prove and the rul­ings as to who we can call as wit­nesses, the de­fen­dants are very anx­ious to go trial.”

Ben Conery and Bar­bara Slavin con­trib­uted to this re­port.

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