AIPAC Case: New Ruling May Lead to Acquittal

A federal court this week ruled that J. William Leonard, the former director of the Information Security Oversight Office, may testify for the defense in the long-running prosecution of two former officials of the American Israel Public Affairs Committee (AIPAC) who are charged with illicitly receiving and transmitting classified information that prosecutors say is protected from disclosure.

Prosecutors had sought to prevent Mr. Leonard, a preeminent expert on classification policy, from testifying for the defendants, on grounds that he had briefly discussed the case with prosecutors while he was still in government.  They even suggested that he could be liable to a year in jail himself if he did testify.  To protect himself against such pressures, Mr. Leonard (represented by attorney Mark S. Zaid) moved to challenge the subpoena in the expectation that the court would order him to testify, thereby shielding him from any potential vulnerability.  (“To Evade Penalty, Key AIPAC Witness Seeks to Quash Subpoena,” Secrecy News, September 2, 2008).  The court has now done so.

In a February 17, 2009 memorandum opinion (pdf), Judge T.S. Ellis, III affirmed the subpoena and directed Mr. Leonard to testify for the defendants.

The ruling’s consequences for the AIPAC case are likely to be momentous, because government secrecy policy has become a central focus of the proceeding and because Mr. Leonard is the strongest witness on that subject on either side.

More than almost any other litigation in memory, the AIPAC case has placed the secrecy system itself on trial.  In Freedom of Information Act lawsuits and other legal disputes, courts routinely defer to executive branch officials on matters of classification.  If an agency head says that certain information is classified, courts will almost never overturn such a determination, no matter how dubious or illogical it may appear to a third party.

But in this case, it is a jury that will decide whether or not the information in question “might potentially damage the United States or aid an enemy of the United States.”  Far from granting automatic deference on this question, Judge Ellis wrote that “the government’s classification decision is inadmissible hearsay”!

The dispute over whether or not the classified information that was obtained by defendants Steven J. Rosen and Keith Weissman qualifies for protection under the Espionage Act will be “a major battleground at trial,” Judge Ellis observed, and it will be addressed at trial “largely through the testimony of competing experts.”

While the prosecutors naturally have their own classification experts, including former CIA Information Review Officer William McNair, none of those experts have Mr. Leonard’s breadth of experience and none of them reported to the President of the United States on classification matters as he did.

Judge Ellis wrote with perhaps a hint of admiration that the defense “understandably characteriz[es] Leonard’s experience and expertise as ‘unsurpassed’.”

As noted in the new opinion, Mr. Leonard will testify for the defense on the “pervasive practice of over-classification of information,” “the practice of high level officials of disclosing classified information to unauthorized persons (e.g. journalists and lobbyists),” whether the classified information in this case qualifies for protection under the Espionage Act, and “whether… the defendants reasonably could have believed that their conduct was lawful.”

In other words, the prosecution probably just lost this case.

The new memorandum opinion has not been posted on the court web site for some reason, but a copy was obtained by Secrecy News.  Other significant AIPAC case files may be found here.

A nominal trial date has been set for April 21, 2009 but that date is likely to slip as a pre-trial appeal by the prosecution remains pending at the Court of Appeals. (Update: The trial has been rescheduled for June 2, 2009.)

No Responses to “AIPAC Case: New Ruling May Lead to Acquittal”

  1. Grant F. Smith February 24, 2009 at 8:50 AM #

    J. William Leonard is certainly an authority on one aspect of the case, but by no means is his testimony likely to be definitive. Competing experts may offer quantitative proof, such as the case of AIPAC intellectual property adquisition in the US-Israel Free Trade agreement, that rebuts the idea that seemingly innocuous information can be declassified (a de facto process) by AIPAC if it suits their purpose. The losses from that case are ongoing.

    See this link for details:

    http://www.earthtimes.org/articles/show/documents-reveal-aipac-trade-secrets,725799.shtml

  2. Steven Aftergood February 24, 2009 at 10:34 AM #

    Thanks for the comment, but I don’t think that’s the right way to look at it. The question is whether the classified information that was allegedly obtained and transmitted by the defendants is protected by the Espionage Act. If it is, then they are in trouble. If it is not, then they are off the hook.

    Trade secrets are not part of this proceeding, and the prosecution has not named any expert witnesses to discuss that subject.

  3. Grant F. Smith February 24, 2009 at 10:57 AM #

    The government prosecutors may have assumed that for professional and legal reasons, Leonard was not going to testify. Now that he will, it does change the mix. If the defense is going to hire Leonard to say NDI on Iran should not have been classified, it would probably advantage the prosecution to show how AIPAC acquired and used NDI and commercial information in the past. Leonard’s one-hour review probably does not qualify him to make sweeping generalizations about the relevance of the allegedly purloined information, since he is a person, not multiple agencies attempting to control information and set American foreign policy. When AIPAC obtained a copy of “Probable Economic Effect of Providing Duty Free Treatment for U.S. Imports from Israel, Investigation No. 332-18″ they also told everyone it was trivial, and to move along.

    Yet here we are, 25 years later with the USTR alleging ongoing intellectual property violations in the trade relationship and an unwarranted deficit due to a string of subsequent IP violations.

    I think Leonard changes everything, and that history matters.

  4. Grant F. Smith February 24, 2009 at 11:08 AM #

    One more thing:

    There was a great moment back in the 1960′s when the DOJ was trying to get AIPAC’s predecessor to register as a foreign agent of Israel. They promptly hired a former judge who was formerly a big time helper to JFK in a labor dispute. This expert also told the pesky law enforcement officials to “move along.”

    http://irmep.org/ila/AZCDOJ/p6100101-4/default.asp (internal DOJ memo)

    And after three years they did. Yet here we are dealing with the fallout.

  5. Kathleen March 12, 2009 at 10:51 PM #

    O.K. I am a total rookie. So what if Leonard says the intelligence that Rosen allegedly passed to Israeli officials should not have been “classified” in his opinion. It would seem that the issue would be WAS IT CLASSIFIED.

    Also I thought I read somewhere that Rosen was taped saying ‘that he was glad that the U.S. did not have an official secrets act’” confirming that he knew the intelligence was classified

  6. Steven Aftergood March 13, 2009 at 1:43 AM #

    Kathleen, classification by itself is not sufficient to establish that the defendants were guilty of a crime. So, for example, if the information was classified, but it was also generally available in the public domain, then it would not fit the criteria that would make its disclosure a crime under the Espionage Act. Likewise, if it was classified, but government experts say that its disclosure could not damage national security or benefit a foreign nation, then the defendants could not have possessed the criminal “intent” that is required to make its disclosure a crime.

    Leonard is apparently prepared to testify that the information in this case (whether it was formally classified or not) does not meet the standards set by the Espionage Act– either because it was not closely held by the government, or because it could not damage national security, or for other reasons.

    The thing to remember is that lots of things are classified improperly or unnecessarily. Since we do not have an “official secrets act,” the unauthorized disclosure of such improperly classified information is not necessarily a crime.