AIPAC Trial Likely to be Postponed

The unprecedented trial of two former officials of the American Israel Public Affairs Committee, who are charged under the Espionage Act with unlawful receipt and disclosure of national defense information, is likely to be postponed from its scheduled start date on June 4.

The need to resolve disagreements between the parties over the handling of classified information involved in the case will “knock the trial date into a cocked hat,” said Judge T.S. Ellis, III at an April 19 hearing.

The Judge gave prosecutors until May 2 to decide whether they will propose a new set of “substitutions” for classified evidence, which would then need to be reviewed by the defense and the court under the provisions of the Classified Information Procedures Act.

Alternatively, prosecutors may decide to stand fast with their previous proposal to bar public access to the classified evidence, a position that the judge has already rejected, thereby setting the stage for an appeal.

Judge Ellis issued a detailed memorandum opinion (pdf) on April 19 to explain why he concluded that the prosecution proposal to exclude public access to classified evidence is not authorized by statute or precedent.

The memorandum opinion advised the government that any proposal to exclude public access to classified evidence would have to be thoroughly supported by “a highly detailed explanation of the ensuing harms to national security… [since] much of the classified information at issue [here] is not self-evidently damaging to national security.”

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  1. Allen Thomson April 24, 2007 at 1:25 PM #

    The memorandum opinion advised the government that any proposal to exclude public access to classified evidence would have to be thoroughly supported by “a highly detailed explanation of the ensuing harms to national security… [since] much of the classified information at issue [here] is not self-evidently damaging to national security.”

    Isn’t this new? My impression has been that the government has never had to justify its classification decisions in a court of law — a simple assertion that an authorized official has determined that information deserves classification sufficed.

    Or have I misunderstood something?

    [It's certainly interesting. And yes, it is different than what one normally encounters in Freedom of Information Act disputes, for example, where courts will typically defer to an agency official who declares that information has been properly classified. --SA]

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