alexandria, va. | A federal judge has hinted that he might dismiss the classified information case against two former AIPAC officials.
Hearing a defense motion for dismissal March 24, District Judge T.S. Ellis III expressed reservations about the breadth of a never-used 1917 statute at the core of the case.
“What I’m really expressing discomfort about is that it’s always nice to have a clear precedent to follow,” he said. “I think we are in new, uncharted territory, so I’m going to consider this matter very carefully.”
Ellis is giving the sides additional time to submit additional arguments, but the smiles around the defense table suggested they had fared better than expected at the hearing.
Steve Rosen, AIPAC’s former foreign policy director, and Keith Weissman, its former Iran analyst, were indicted last August on charges that they relayed classified information.
AIPAC fired Rosen and Weissman last year, saying that information arising out of the investigation suggested they did not comport with AIPAC’s standards. Federal prosecutors have made clear that AIPAC is not suspected of wrongdoing.
Free-speech advocates have raised alarms about the World War I-era statute that bans the retention and dissemination of “information relating to the national defense,” saying its broadness collides with First Amendment protections because it could criminalize even casual conversations about the armed forces.
Now it is up to Ellis to decide if the statute passes First Amendment muster and should go to trial, which the judge delayed from April 25 to May 23.
Last week’s vigorous hearing anticipated one of the core arguments to be tested if the case does go to trial: whether the statute, which criminalizes not just the relaying of classified information but its retention, includes oral communications.
The indictment focuses primarily on conversations about U.S. policy on Iran, al Qaida and other areas that Rosen and Weissman allegedly conducted with a number of government officials.
“How do you give back what you heard?” asked Rosen’s lawyer, Abbe Lowell, who led defense arguments in last week’s hearing, referring to oral exchanges of information.
Ellis picked up the point, asking Kevin DiGregory, who is leading a large prosecution team, “What are they supposed to do, have a lobotomy?”
DiGregory countered that he would prove at trial that Rosen and Weissman conspired to solicit and disseminate the classified information, and that the nature of the information transfer was not at issue. In other words, he argued, the issue was conduct, not speech.
That irked Ellis.
“All speech is conduct,” he said.
DiGregory said that excluding oral exchanges from the statute would tie prosecutors’ hands. Dismissing the case would set a precedent that could allow, say, a spy to have a contact read aloud a classified document, as long as he did not physically hand it over, he argued.
Ellis seemed most concerned by the First Amendment implications of the statute. Lowell, who served as chief counsel to Democrats on the U.S. House of Representatives’ Judiciary Committee during President Clinton’s impeachment hearings, ably parried a hypothetical case put to him by Ellis, in which a disgruntled government official calls a lobbyist and suggests to him that the United States might take military action against another nation.
To know that he has been committing a crime by just listening, Lowell said, the lobbyist would have to know that the government official is reading from a classified document and is not authorized to leak it.
DiGregory would not count out using the statute against journalists, but said prosecutors would probably be more hesitant in going after the press.
“Because of the function the media serves in this country, we would have to carefully scrutinize whether to take action,” he said. But he added, “If you look at the statute, it plainly applies to journalists, anyone, whoever.”