In appealing the admissibility of those documents, the prosecutors also took aim at a 2006 court ruling that imposed a high burden of proof on the government to show that the defendants had specific intent, among other things, to harm the United States or benefit a foreign country. Without such a showing of intent, the Espionage Act provisions under which they are charged would be unconstitutional, the lower court ruled in 2006. (See “Ruling in AIPAC Case Interprets Espionage Act Narrowly”, Secrecy News, February 20, 2007).
In its appeal, the government blasted that prior ruling.
“The district court not only manufactured unwise and unnecessary new elements of a federal criminal offense, but in doing so exceeded its constitutional authority and replaced its judgment for that of the Congress,” prosecutors wrote.
If their reasoning were to prevail, then anyone who deals with classified information without official authorization, as many national security reporters and others routinely do, could conceivably be subject to prosecution under the Espionage Act.
The partially redacted appeal brief also appeared to reframe the AIPAC case as a traditional espionage matter, stressing the unauthorized disclosure of classified information to the government of Israel and downplaying the alleged unauthorized disclosures to the press and other persons that were prominent in the original indictment.
“Clandestinely obtaining and passing U.S. government classified information to the Israeli government does not represent participation in a ‘public debate’ to ‘influence United States foreign policy.’ The fact that defendants may have at some point in the conspiracy mixed lawful conduct with their illegal conspiracy to obtain and disclose NDI [national defense information] is irrelevant,” prosecutors argued.
See the Brief of the United States presented to the Fourth Circuit Court of Appeals on July 25.
The trial of the two defendants, Steven Rosen and Keith Weissman, has most recently been re-set for October 28.
The new government brief was also reported in “Prosecutors Argue for More Secrecy in Aipac Case” by Josh Gerstein, New York Sun, July 28.
