Washington — Defendants in the classified-information case involving two former pro-Israel lobbyists are hoping a change in administrations next year will bring a fresh review of their prosecution, according to sources on the defense team.
The next Attorney General, who will be nominated by Barack Obama or John McCain, is expected to reconsider the case of former American Israel Public Affairs Committee staffers Steve Rosen and Keith Weissman, as part of general review of high-profile legal issues decided by the Bush administration.
Sources on the defense team have speculated that a possible Obama nominee to head the justice system could be more receptive to pleas to dismiss the case.
When the charges were brought in August 2004, the first Bush administration was still in office and John Ashcroft was attorney general. Now, by the time the trial begins, the case will have gone through at least four attorneys general. Because the case pits First Amendment rights against the need to protect national security, decisions made by the next administration about the case will reflect its posture on these constitutional issues.
Rosen and Weissman, former top staffers at Aipac, are being prosecuted under a never-before used clause in the Espionage Act that concerns the passing of classified information by non-government officials. According to the indictment, Rosen and Weissman received information from a former Pentagon analyst and relayed it to other Aipac officials, to members of the press and to an Israeli diplomat.
They are accused of passing along information about a purported threat to kill Israeli operatives working in northern Iraq. The information was false, and was given to Rosen and Weissman as part of a government sting operation.
The defendants have argued that they did nothing wrong by meeting with the Pentagon analyst, because their actions were protected by the First Amendment, granting the right to petition government. They also have argued that they had no way of knowing they were violating the law, because they regularly received briefings that included classified information from senior administration officials.
“In general, I think an Obama administration would be more friendly to the idea of open information,” said Steve Aftergood, who runs the Project on Government Secrecy at the Federation of American Scientists. Obama has spoken out publicly against the Bush administration’s use of secret measures and has advocated increased transparency.
Defense sources also look to Obama’s leading candidate for Attorney General, Eric Holder, a former deputy Attorney General during the Clinton administration who is serving as Obama’s senior legal adviser. Holder is known to have strong views supporting civil liberties.
It is not clear who McCain would tap for Attorney General, however, McCain also has been critical of government secrecy, and is seen as holding views that are different from President Bush on that issue.
Meanwhile, a leading figure in the prosecution recently resigned. Chuck Rosenberg, the U.S. Attorney for Eastern District of Virginia who was in charge of the prosecution, handed in his letter of resignation on Oct. 6.
The Fourth Circuit Court of Appeals in Richmond, Va., will hear arguments by both sides on Oct. 29. The government is seeking to reverse a decision by Judge T.S. Ellis III of the U.S. Federal Court of the Eastern District of Virginia that allows the defense to use classified material. The prosecution is arguing that the amount of such material should be limited because of national security concerns.
The circuit court’s ruling could take months. The earliest the case could come to trial is February, although pre-trial arguments concerning rules for questioning expert witnesses might postpone it even longer.
“Both clients are very anxious to have this trial as soon as possible,” said defense attorney Baruch Weiss, who represents Weissman. “They are very upset with the government’s decision to appeal and want to have their day in court.”