Secrecy News has an update on the interminable and meritless case against two former AIPAC officials:
...in an August 20 response (pdf) that was redacted and unsealed last week, the defense not only denied guilt but also said it would prove that no crime had been committed:
"Defendants will demonstrate, among other things, that they acted with innocent states of mind, believing they were acting in the national interest, that officials were authorized to disclose the information to them, and that their conduct was lawful and necessary to save both American and Israeli lives. They will demonstrate that the information at issue was in the public domain, was not damaging to national security, and was not even classified."
At the hearing next week on October 29, prosecutors will argue that Judge T.S. Ellis, III, who presides over the case in the lower court, "erroneously authorized the disclosure of irrelevant classified information at trial." Furthermore, they said in a September 12 reply brief (pdf), Judge Ellis "improperly grafted on to Section 793 [of the Espionage Act] several additional intent elements that are nowhere to be found in the statute and [he] repeatedly misapplied the test by which the government's classified information privilege is adjudged."
The government's harsh assessment of Judge Ellis's handling of the case is remarkable since he is an extremely cautious and deliberate judge (and a Reagan appointee). In an additional complication for the government, Judge Ellis himself sometimes sits on the court of appeals as a designee, making it perhaps a bit less likely that his holdings will be easily overturned by his sometime colleagues.
Adding to the prosecution's disarray, the U.S. Attorney who has been in charge of the case, Chuck Rosenberg, recently resigned. The lead prosecutor, Kevin DiGregory, quit several months ago."
It is not hard to figure out why the prosecutors are fleeing:
Given the unusual charge, the questionable factual basis for the prosecution, and the unfavorable judicial reception so far, some observers wonder why the government continues to pursue the case.
Count us on the side of those observers.