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Former AIPAC lobbyists Keith Weissman (Left) and Steve Rosen. (AP)
Last update - 00:00 03/11/2008
Defense for AIPAC spy suspects: Data at core of case was not really 'top secret'
By Josh Gerstein
Tags: Israel News, Jewish World 

RICHMOND - The defense of two pro-Israel lobbyists accused of illegally obtaining and disclosing American national security secrets will argue that some of the data the men allegedly conspired to reveal came directly from the Israeli government and was not truly secret, defense lawyers told a federal appeals court last week.

Three judges from the U.S. Court of Appeals spent more than 90 minutes Wednesday wrestling with the issue of how much classified information the defense should be permitted to introduce in the case of Steven Rosen and Keith Weissman, former employees of the American Israel Public Affairs Committee (AIPAC).

The beginning of the unusual court session was held in public, but the lawyers and the judges retreated behind closed doors in a specially-cleared and guarded courtroom to discuss the most sensitive aspects of the case about halfway through the hearing.
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As they waited for the arguments to begin, defense lawyers leafed through fat binders marked in orange with the words, "TOP SECRET."

Rosen and Weissman were indicted in 2005 on charges that they gathered secrets from U.S. officials and passed the confidential information to journalists, Israeli diplomats and others in violation of the United States Espionage Act.

Rosen and Weissman are not charged with receiving or distributing any classified documents, but solely with relaying information orally. Some free speech advocates have argued that what the two men allegedly did is not much different from what journalists do every day.

Prosecutors have indicated that covert wiretaps captured the men acknowledging they knew the data was classified.

Trial dates for the pair, who were fired from AIPAC, have been repeatedly canceled as wrangling dragged on over what classified information could be revealed at trial, which could take place as soon as February. A parade of prominent witnesses are expected, including Secretary of State Condoleezza Rice, former U.S. Army General Anthony Zinni and leaders of U.S.-based pro-Israel groups.

Rosen and Weissman, who have pled not guilty, face the possibility of lengthy prison terms if convicted. A Pentagon analyst who admitted leaking information to the duo, Lawrence Franklin, was sentenced to more than 12 years in prison and is cooperating with prosecutors.

The government filed the appeal last week, arguing that the trial judge, T.S. Ellis III, erred when he ruled the defense was entitled to use a classified State Department document and another from the Federal Bureau of Investigation.

"That information is not actually relevant to the crime that was charged," an attorney in the Justice Department's counterespionage section, Thomas Reilly, told the judges.

Rosen's attorney, Abbe Lowell, said the State Department document shows that Israel was circulating the intelligence reports Rosen is accused of disclosing to other AIPAC employees and a foreigner not named in the indictment.

"You have to be able to prove what the Israelis knew," Lowell said. "In our defense, it is important that this information, discussed down the line by our client, is Israel-based."

Lowell did not detail the Israeli information in the open session, but declassified court records indicate the document describes intelligence about the Karine A, a ship seized by Israel in 2002 in the Red Sea. Israel said the vessel was loaded with rifles, anti-tank missiles, rockets, mortars and other weapons destined for the Gaza Strip.

Sources close to the case said the State Department memo relates to a briefing Israeli Gen. Yossi Kuperwasser gave American diplomats about the Karine A during a trip to Washington in January, 2002. Rosen got a similar briefing from Kuperwasser the same day.

Lowell suggested that the State Department memo was nearly identical to a note Rosen sent to fellow AIPAC employees.

"You'd be able to draw a line between the allegation and the assertion and where it's from," Lowell said.

Lowell also said a former State Department official, Carl Ford Jr., was prepared to testify that the bulk of the memo was actually unclassified.

"Who gets to define what's classified is the Executive Branch," Reilly insisted.

The nature of the FBI document was less clear, but a lawyer for Weissman, Baruch Weiss, said prosecutors want to prevent the defense from disputing which portion of the report made it so sensitive.

"The government wants to use the part of the document that is helpful to them and they don't want us to use the part of the document that is helpful to us," Weiss said.

The appeals judges, Robert King, Roger Gregory and Dennis Shedd, issued no immediate decision, but Shedd said he was reluctant to disturb the rulings Ellis arrived at after protracted hearings.

"You have a very high hill to climb, especially with the time the judge spent in this case," he told Reilly.

All three appeals jurists expressed skepticism about the government's claim that the ruling on classified information opened up Judge Ellis' other decisions for immediate appeal. "That would be a change to what we normally apply," Shedd said.

Generally, federal prosecutors in America cannot appeal pre-trial rulings on legal and evidentiary issues and defendants can do so only if they are convicted. Weiss said those basic rules should be kept despite the classified information issue.

"I was a prosecutor myself. Many times, I lost things I'd have loved to appeal," Weiss said. "I was stuck."

Reilly argued a law passed in 1980 to govern the use of classified information in criminal cases made clear that Congress wanted court proceedings involving national secrets handled differently.

"The point is to get it right before classified information is disclosed," he said. Through his attorney, Rosen asked to be admitted to the secret portion of the argument but was never allowed in.

The three-judge panel assigned to the case is fairly diverse politically, with Shedd appointed to the bench by the elder Bush, King named by President Clinton, and Gregory on the panel via an unusual recess appointment from Clinton and a subsequent nod from the current President Bush.

Either the defense or prosecution could ask for reconsideration of the appeals judges' ruling by the full 11-judge bench of the 4th Circuit or review by the Supreme Court, but such requests are rarely granted.

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      1.   AIPAC not pro-Israel; it`s pro-Likud 05:33  |  Steve 03/11/08
      2.   the art of deception 06:02  |  VIPER 03/11/08
      3.   Israel and Israels agents need special monitoring 06:59  |  Natallie Durson 03/11/08
      4.   NATALIE.Why don`t you wait for the trial outcome 07:19  |  PETER SM 03/11/08
      5.   VIPER The defence has to prove it.NOT the prosecution 07:27  |  PETER SM 03/11/08
      6.   Another Dreifuss case : 08:44  |  msh 03/11/08
      7.   Cutting through all the smoke and mirrors 09:07  |  Clickfool 03/11/08
      8.   The potentially divided loyalties of American Jews 09:16  |  Clickfool 03/11/08
      9.   Watch those Jews: dangerous seditious ideas: morality, religion 09:20  |  x-ray 03/11/08
      10.   "Israel + Israel agents" = antisemitic formula 10:18  |  Israeli citizen 03/11/08
      11.   YOU SPY ON YOUR ENEMIES! 10:26  |  Neutered Observer 03/11/08
      12.   For Israeli Citizen # 10 10:38  |  Clickfool 03/11/08
      13.   For clickfool # 12 , I love dancing elephants 12:07  |  Israeli citizen 03/11/08
      14.   Anyone with an IQ of 50 12:21  |  Jonathan 03/11/08
      15.   CFOOL Wait for the wiretaps to judged by the courts 12:24  |  PETER SM 03/11/08
      16.   NEUTERED OBSERVER.Have they been convicted of spying? 12:26  |  PETER SM 03/11/08
      17.   Spys 12:37  |  Scott G 03/11/08
      18.   CFOOL As a hater it probably goes over your head 12:45  |  PETER SM 03/11/08
      19.   #14 Jonathan 12:46  |  Scott G 03/11/08
      20.   #16 Peter SM 12:48  |  Scott G 03/11/08
      21.   CFOOL It escaped you that AIPAC & Israel do not always see 12:49  |  PETER SM 03/11/08
      22.   @17, scott g, i would like to shot you before wall 13:01  |  vladimir 03/11/08
      23.   SCOTT G.It is not right but it does go on. 13:15  |  PETER SM 03/11/08
      24.   NEUTERDC OBSERVER WHY DO YOU NEED TO SHOUT 13:17  |  PETER SM 03/11/08
      25.   For Peter SM # 21 13:21  |  Clickfool 03/11/08
      26.   SCOTT G.The judge jury and executioner 13:21  |  PETER SM 03/11/08
      27.   Peter SM 14:39  |  Scott G 03/11/08
      28.   Defense 14:43  |  Scott G 03/11/08
      29.   Traitors 14:58  |  Scott G 03/11/08
      30.   judge and prosecutor are jews 15:04  |  ron 03/11/08
      31.   AIPAC is all agent of the zio state and un-american 15:11  |  american 03/11/08
      32.   Red Herring 15:59  |  Mark Lincoln 03/11/08
      33.   # 3 and # 8 = antisemitic logic, once again, Click + Natallie 16:07  |  Israeli citizen 03/11/08
      34.   So should the pro-Irish, pro-Cypriot, pro- . . . 16:21  |  Zev Davis 03/11/08
      35.   the question is: how much influence the zio-state on USA 16:32  |  american 03/11/08
      36.   Keith Weissman Steve Rosen were handlers of Franlin 17:17  |  you remember right? 03/11/08
      37.   Your remember right? Third Reich Policies? 17:44  |  Israeli citizen 03/11/08
      38.   for your information `israli citzen` 18:08  |  american 03/11/08
      39.   For Israeli Citizen # 33 18:10  |  Clickfool 03/11/08
      40.   Poor Guys have some pretty lousy lawyers 18:12  |  Dave 03/11/08
      41.   Defense 18:26  |  Steve Gure 03/11/08
      42.   CFOOL@21 When did you do that indeed?when did you condemn 21:22  |  PETER SM 03/11/08
      43.   israeli citizen 04:35  |  potobac 04/11/08
      44.   #42, PETER SM losing the battle 10:17  |  VIPER 04/11/08
      45.   #38 - And for YOUR information "american" 08:09  |  JES 05/11/08
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