Espionage Act-Virginia

Two former officials of the American Israel Public Affairs Committee (AIPAC) are being prosecuted under the Espionage Act (the Act) by way of the government's controversial theory that the Act could be used to prosecute the unauthorized receipt and transmittal of classified information by private citizens who are not engaged in espionage. ^[1] The trial of defendants Steven J. Rosen and Keith Weissman is scheduled to begin in June in the Eastern District of Virginia.^[2]

We have previously written about this case here.

As the case proceeds, the court continues to interpret the Espionage Act in a restrictive manner that places an increasing burden of proof on the prosecution and indicated what sorts of facts might tend to exculpate the defendants.^[3]

"To prove the alleged conspiracy to disclose national defense information to one not authorized to receive it, the government must prove among other things, that the defendants possessed all the culpable mental states that would be necessary for conviction under the Act, which include four distinct states of knowledge or belief.” ^[4]

In summary, prosecutors must show that the defendants knew the information involved was closely held and could harm the United States; that it could be used to the injury of the United States or to the advantage of a foreign nation; that the recipients of the information were not authorized to receive it; and that the defendants acted with knowledge that the disclosures were illegal and could harm national security.^[5]

But if the defense can show that U.S. government officials frequently disclosed confidential information to AIPAC for transmittal to the Israeli government, the court observed, that would mean the defendants could have believed such behavior was authorized.^[6]

If "the governments of the United States and Israel routinely used AIPAC as a diplomatic 'back channel' [to convey sensitive information]" that would be "potentially exculpatory" since it could "affect defendants' perception of the propriety of any disclosures made by or to them." ^[7]

The nature of the relationship between the governments of the U.S. and Israel may also have a bearing on the defendants' state of mind, the Judge wrote, in language that may foreshadow close scrutiny of U.S.-Israel relations at trial:
"The more specific the details of the alleged cooperation between the two governments, the more probative such cooperation becomes," Judge Ellis wrote. ^[8]

Similar reasoning would imply that if a news organization published classified information in the belief that doing so was beneficial to the United States, that would take it beyond the scope of the Espionage Act's prohibitions on unauthorized disclosure of national defense information.^[9]

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^[1] Steven Aftergood, Ruling in AIPAC Case Interprets Espionage Act Narrowly, Secrecy News, February 20, 2007.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.