GOVT FILES APPEAL IN AIPAC CASE

Prosecutors in the trial of two former officials of the American Israel
Public Affairs Committee who are charged with mishandling classified
information filed a pre-trial appeal on Friday. The district court,
they said, should not have ruled that two particular classified
documents were admissible into evidence.

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 "See "Ruling in AIPAC Case Interprets Espionage Act
Narrowly," Secrecy News, 02/20/07).

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:

http://www.fas.org/sgp/jud/aipac/rosen072508.pdf

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:

http://www.nysun.com/foreign/judges-ruling...py-cases/82658/