Prosecutors in the classified information case against two former AIPAC staffers plan to file a pre-emptive appeal.
The office of the US Attorney for Eastern Virginia confirmed to JTA that the prosecutors declared their intention last Friday to file an appeal to the 4th US Circuit Court of Appeals by March 31.
Pretrial, or interlocutory, appeals are rare. It is not clear on what the government will base the appeal, but it has suffered a number of setbacks recently in the case against Steve Rosen, the American Israel Public Affairs Committee's former foreign policy chief, and Keith Weissman, its former Iran specialist.
A year ago, Judge T.S. Ellis III overruled the government's request for a closed trial as unconstitutional. Ellis has since allowed defense lawyers to subpoena as witnesses top Bush administration officials, including Secretary of State Condoleezza Rice and Stephen Hadley, the national security adviser.
The notification of an appeal came as the sides completed the arduous process of selecting what classified information may be introduced at the trial.
The appeal may be based on prosecution objections to the breadth of information ultimately approved for use.
It casts aside the April 29 trial date, at least the fifth such date since the indictment was handed down in August 2005 - an unusually long pretrial period. The defense has long pressed for the case to come to court.
"It is now clear that the government does not want to try this case," Abbe Lowell, Rosen's lawyer, told JTA. "They filed it without thinking it through and now no one has the authority or courage to admit they made a mistake. The delays are unprecedented and violate our clients' rights."
Rosen and Weissman were charged under a section of a 1917 statute that criminalizes the receipt and dissemination of classified information by civilians. That statute had never been as the exclusive basis of a prosecution.
The indictment stems from a sting operation conducted a year earlier in which a government agent told the defendants that he had information that could prevent the imminent killing of Israelis. Rosen and Weissman relayed the information, which turned out to be a fiction, to journalists and Israeli diplomats.
The 4th Circuit appeals court, based in Richmond, Va., often favors the government in Espionage Act cases. But Ellis, who occasionally serves on the 4th circuit, was careful to base his rulings on its precedents.