On June 4, the AIPAC trial will commence in Northern Virginia. Keith Weissman and Steven J. Rosen, two former employees of the pro-Israel lobbying organization, are charged with violations of the espionage statutes for allegedly passing along “national defense information” to journalists and to representatives of the government of Israel. But before the trial can begin, the court has had to consider a raft of motions, including an important one that was ruled on earlier this week.
Prosecutors had sought to keep much of the classified information at issue in the case from being released to the public. To that end, they had proposed elaborate procedures under which secret evidence would be presented to the jury but kept from broad distribution. T.S. Ellis III, the judge presiding over the case, has explained what this would have entailed.
Witnesses would not be permitted to
speak the names of certain specific countries, foreign persons, or other things, but would instead use a code, “Country A,” “Report X,” “Foreign Person Y,” “Foreign Person Z,” and the like. That code would be provided to counsel, the Court, and the jury. The system of codes would change, moreover, to reflect . . . different alleged overt acts disclosing . . . classified information presumably to prevent the public from inferring the meaning or discerning the meaning of the code that’s being used.
The defendants’ attorneys vociferously protested this approach, claiming it is a clear violation of their clients’ Sixth Amendment right to a public trial.
Even more significantly, they pointed out, it effectively prejudged a fundamental issue lying at the very heart of the case: whether the information passed along by the two lobbyists was truly closely held national defense information. By compelling discussion of the evidence to take place only in code, the procedures would implicitly encourage jurors to conclude that the information was indeed precisely that.
In a critical decision, Judge Ellis ruled in the defendants’ favor, finding that the government’s proposed procedures suffered from a number of “fatal” defects. Among other things, the defendants would be
unfairly hindered in their effort to explain why they believed information that they sought to obtain, and the information they received and disseminated, was not NDI [national defense information]. They should be able to explain precisely what they knew, when, from whom they learned it, why they didn’t have the requisite mens rea, which I have discussed in several of the opinions that I have already written.
Statements like, “I heard from Foreign Person C the fact about Country X, reflected at Exhibit A, page three, paragraph four, line two,” seem to me to be insufficient for fairness.
As I have argued in the pages of COMMENTARY, the United States has a powerful interest in keeping its defense and foreign-policy secrets. But as I have also argued, it must do so in accordance with law.
From beginning to end, the AIPAC prosecution has been rife with government conduct that smells, and which Judge Ellis has treated accordingly. If this most recent ruling by Judge Ellis is a taste of what is to come, my advice to the defense lawyers is to dispense with a jury and let the judge try the case. And if my advice is followed, I would bet heavily on an acquittal.