By Walter Pincus
Washington Post Staff Writer
Friday, April 20, 2007
The Justice Department yesterday was given until May 2 to determine how it wants to proceed in the controversial prosecution of two former pro-Israel lobbyists charged with violating the 1917 Espionage Act after the federal judge in the case turned down prosecutors' attempt to close from public scrutiny a substantial portion of the trial in order to protect classified information.
Faced with the decision made Monday by U.S. District Judge T.S. Ellis III and delivered in written form yesterday, the prosecutors want time to determine whether they will appeal, suggest another way to handle classified material or drop the case altogether.
The government has charged Steven J. Rosen and Keith Weissman, former lobbyists for the American Israel Public Affairs Committee (AIPAC), with conspiring to obtain national defense information from U.S. officials and pass it on to the media and Israeli officials. They are the first U.S. citizens not employed by the government to be charged under the 89-year-old law for allegedly receiving and transmitting such information orally, rather than through classified documents.
Ellis ruled unconstitutional the government's proposed plan that during the trial, scheduled to begin June 4, the jury would be permitted to see classified information central to the case but lawyers and witnesses could use only coded references in open court.
Ellis said the proposed procedure would be confusing to the jury and harmful to the defense. In earlier rulings, he said the government must prove that the information Rosen and Weissman obtained and passed on was protected within the government, that its disclosure would harm national security and that each of them "had bad faith purpose" in sharing it, knowing it "could be potentially damaging to the United States" or "useful to an enemy."
The government's proposed procedures for handling classified information at trial "would make it virtually impossible to cross-examine on why the putative national defense information, if disclosed, would be damaging to the national security," Ellis said Monday. He also said the government's plan to show the information to jurors, who were not cleared for it, and ask them to keep it secret indicated that the information "is not so deserving of rigorous protection."
Under methods established by the Classified Information Procedures Act, the government and the defense normally agree on summary language when classified information is key to a case. If they do not and a judge rules that the information is necessary to the defense, specific charges can be dropped or the government can drop the prosecution rather than expose the information.
The former lobbyists have said they were receiving and passing on the information under their First Amendment rights -- no differently than journalists or researchers specializing in national security.