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(photo credit: US Government [file])
The prosecution in the case of two former AIPAC (American Israel Public Affairs Committee) lobbyists accused of communicating classified information will have to deal with the constitutional aspects of the case and provide the court with a detailed brief on the issue.
Federal Judge T.S. Ellis, of the US District Court in Alexandria, Virginia, said Friday that the prosecution's decision to indict the pro-Israel lobbyists entered "new unchartered waters," since there were no legal precedents for such a case. "This is why I will consider this matter very carefully," the judge said during a pre-trial hearing.
Lawyers for Steve Rosen and Keith Weissman asked the court to dismiss the case, arguing that it infringed on the First Amendment-protected speech of the two lobbyists and that use of the Espionage Act to prosecute the two was vague and overly broad.
Rosen, the former policy director of AIPAC, and Weissman, a former Middle East expert for the lobby, are to stand trial for receiving classified information from former Pentagon analyst Larry Franklin, who has already been sentenced to 12 1/2 years in prison after signing a plea agreement. His sentence is expected to be reduced significantly after he testifies in Rosen's and Weissman's trial, scheduled to begin on April 25.
n Friday's hearing, Ellis questioned attorneys for both sides at length, presenting them with hypothetical questions regarding similar scenarios to clarify several basic questions concerning the case.
The most issue was whether the indictment posed any constitutional questions, since Rosen and Weissman are accused of receiving and repeating information orally, without any documents passing hands.
Abbe Lowell, attorney for Steve Rosen, said it was common practice in Washington to leak classified information and it was unfair for the government to suddenly "stop the music" and declare that the defendants has crossed the line.
The defense also argued that if the espionage law was used to prosecute lobbyists it could be used in the future to go after journalists as well.
Prosecutor Kevin DiGregory refused to accept the notion that indicting the two lobbyists had anything to do with constitutional issues and argued that the trial "is about conduct, not about speech."
Ellis, in a series of questions that were mostly unanswered by the prosecution, made it clear he did see the possibility of this case involving constitutional questions. He ordered both sides to submit new briefs within a week, before he ruled whether to dismiss the case or to turn it over to the jury.
Ellis also said the law under which the indictments were filed, enacted by Congress during World War I, might be unconstitutionally broad and vague, especially given its potential impact on First Amendment rights.
On the matter of getting depositions from Israeli diplomats involved in the case, the judge ordered the defense to approach the Israelis and ask them if they were willing to give any depositions, before he made any further rulings on this issue.
In earlier contacts between the defense and attorneys for the Israelis, it was made clear that the Israeli diplomats would not agree to be deposed in the case.
The Israelis mentioned in the case all have diplomatic immunity and cannot be forced by either side to testify or to give depositions.
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