AIPAC Prosecution Receives Another Blow

Secrecy news reports that the prosecutors in the AIPAC case have received yet another blow and indicates that the next status hearing on the case on February 26 will be telling as to whether or not this unfortunate case will finally be dropped:

A federal appeals court dealt another setback to prosecutors in the case of two former employees of the American Israel Public Affairs Committee (AIPAC) who are charged under the Espionage Act with improperly receiving and transmitting national defense information.  The appeals court rejected (pdf) a pre-trial appeal by the prosecution and affirmed the lower court rulings of Judge T.S. Ellis, III that define which classified information may be introduced at trial.

The appeals court said that the lower court had correctly assessed the relevance of two documents that the defense wished to introduce, referred to as the "FBI Report" and the "Israeli Briefing Document," and that it had properly devised substitutions for certain classified information in the documents so that they may be presented at trial.

More importantly,
the new ruling left undisturbed Judge Ellis' ground-breaking interpretation of the procedural requirements of the Espionage Act.  That August 2006 interpretation stated that in order for the Espionage Act to be constitutional, it must require prosecutors to show that the defendants possessed a series of "culpable mental states" and that they knowingly chose to violate the law.  (See "Ruling in AIPAC Case Interprets Espionage Act Narrowly," Secrecy News, February 20, 2007.)  This imposes a substantial, perhaps insurmountable burden of proof that the prosecutors must meet in order to prevail.

The new ruling counts squarely as a win for the defense.  But it also includes a hint of support for the prosecutors' view that the lower court has made the Espionage Act too difficult to prosecute.

"We are ... concerned by the potential that [Judge Ellis'
August 2006 ruling (pdf)] imposes an additional burden on the prosecution not mandated by the governing statute," the appeals court said in a strikingly ambivalent footnote (footnote 8).  That concern has no immediate legal consequences, but it suggests that the proper interpretation of the Espionage Act is not yet a settled matter.