Classified Documents Allowed in Espionage Trial

By Jerry Markon
Washington Post Staff Writer
Wednesday, February 25, 2009

A federal appeals court ruled yesterday that two former pro-Israel lobbyists accused of violating the Espionage Act can use classified information at trial, the latest setback for prosecutors in the closely watched case.

The decision by the Richmond-based U.S. Court of Appeals for the 4th Circuit allows the former lobbyists for the American Israel Public Affairs Committee to introduce evidence from two classified government documents at their trial, scheduled for April 21. Attorneys for the lobbyists, Steven J. Rosen and Keith Weissman, consider the information crucial to the defense.

Rosen and Weissman are charged with conspiring to obtain classified information and pass it to journalists and the Israeli government.

In its ruling, a three-judge panel also declined to overturn a key 2006 decision by the trial judge. That ruling said the government must show that the two men "had bad faith purposes" in disclosing the information and that they knew it could damage the United States, a high bar for prosecutors, because criminal intent can be difficult to prove.

The two elements of the ruling "make it all but impossible for the government to win this case," said Steven Aftergood, a secrecy expert at the Federation of American Scientists. "The prosecution has been losing one ruling after another."

Peter Carr, a spokesman for the U.S. attorney's office in Alexandria, said prosecutors are reviewing the ruling and will respond in court. John Nassikas, an attorney for Weissman, declined to comment. Abbe Lowell, an attorney for Rosen, said the ruling reinforces the defense's longstanding argument that "documents the government claims to be classified" are crucial to a fair trial.

The unprecedented nature of the case has alarmed some people. The former lobbyists are the first non-government civilians charged under the 1917 espionage statute with verbally receiving and transmitting national defense information. Some lawyers and First Amendment advocates say it criminalizes the type of information exchange that is common among journalists, lobbyists and think-tank analysts.

Prosecutors argue that disclosing sensitive defense information could harm national security. Rosen and Weissman were indicted in 2005 on charges that they passed along information about topics that included the activities of al-Qaeda and possible attacks on U.S. forces in Iraq.

Rosen, of Silver Spring, was AIPAC's director of foreign policy issues and was instrumental in making the committee a formidable political force. Weissman, of Bethesda, was a senior analyst. AIPAC fired them in 2005.

The classified information that the defendants can now use at trial is contained in documents that yesterday's ruling called "The FBI Report" and the "Israeli Briefing Document." Sources familiar with the documents said the FBI report was on the 1996 Khobar Towers bombing in Saudi Arabia that killed 19 Americans and that the other paper describes a briefing by the Israeli government. Prosecutors had tried to prevent the defense from using large portions of the documents.

Yesterday's ruling followed another recent decision by a federal judge in Alexandria that allowed the former lobbyists to call a former top government classification official as a witness. He is expected to testify that they did not violate the espionage statute.

Staff researcher Meg Smith contributed to this report.

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