Federal prosecutors in the national security case against two former pro-Israel lobbyists suffered legal blows this week that could affect their chances of winning or even lead the government to reconsider going forward with the case.
A February 24 ruling by the 4th Circuit Court of Appeals in Richmond, Va. turned down a government appeal aiming to limit the use of classified evidence by the defendants in the case. It also upheld the decision of a lower court requiring the prosecution prove the defendants acted in bad faith.
Steve Rosen and Keith Weissman, two former staffers of the American Israel Public Affairs Committee, are accused of illegally communicating classified information to an Israeli diplomat, a journalist and to their AIPAC superiors. They were arrested after an FBI sting operation, in which they received information from Larry Franklin, a former mid-level Pentagon analyst. Rosen and Weissman were later fired from AIPAC.
The appeals court’s ruling comes after a February 18 decision by Judge T.S. Ellis of the U.S. district court in Virginia to allow the defense to call to the stand William Leonard, the former head of government Information Security Oversight Office, known as the “classification czar.” This decision gave a boost to the defendants who believe that Leonard’s testimony is crucial in countering prosecutors’ claims that the information Rosen and Weissman heard from Franklin and passed on, was, in fact, classified.
Attorney Abbe Lowell, who represents Steve Rosen, said the appeals court ruling will help the defendants prove the information they conveyed “was not classified, was not national defense information and its disclosure did not violate the law.”
“I see no winning strategy for the prosecution,” said Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, who has been following the case closely. “They are in an all but impossible situation.”
Aftergood noted the high bar set by the court, demanding that the prosecution proves Rosen and Weissman disclosed the information intending to damage U.S. interests.
The rulings might be a turning point for the case that began over four years ago. Observers and defense sources speculated the new circumstances created by the pre-trial decisions could lead the Attorney General to reconsider the entire prosecution, in light of what is seen as a growing difficulty to prove guilt.
“This is the defense’s dream scenario, but it’s not an unrealistic one,” Aftergood said.
A tentative April 21 date was set by the court for the trial, but it may be pushed back to accommodate the scheduling needs of both sides.