Rare Order Issued in AIPAC case: Update

A federal judge yesterday issued a rare ruling that ordered U.S. Secretary of State Condoleezza Rice and more than 10 other prominent current and former government officials to testify on behalf of two pro-Israel lobbyists who are accused of violating the Espionage Act at their upcoming criminal trial.^[1]

Their testimony has been sought by attorneys for Steven J. Rosen and Keith Weissman, former employees of the American Israel Public Affairs Committee, or AIPAC, who are accused of conspiring to obtain classified information and pass it to members of the media and the Israeli government.^[2]

Federal criminal attorneys for Rosen and Weissman assert that Rice and the other officials could help clear them because they provided the former lobbyists with sensitive information similar to what they were charged for, according to Ellis's ruling and lawyers familiar with the case.^[3] Despite the efforts of the Prosecutors, who have been trying to quash the subpoena, Judge Ellis wrote that the testimony could help "exculpate the defendants by negating the criminal states of mind the government must prove.''^[4]

"It's certainly been a long time, if ever, since a district court ordered the government to produce witnesses who currently occupy such sensitive national security positions to testify at trial in a matter of this sensitivity,'' said David Laufman, a Washington lawyer who previously handled national security cases in the U.S. attorney's office in Alexandria.^[5]

Prosecutors also might try to invoke a state secrets based privilege to block the officials from testifying on the grounds that it could reveal sensitive information about national security and U.S. foreign policy. ^[6]

Rosen and Weissman were indicted in 2005 on charges of conspiring to violate the Espionage Act by receiving national defense information and transmitting it to journalists and employees of the Israeli Embassy who were not entitled to receive it.^[7] They are the first non-government civilians charged under the 1917 espionage statute with verbally receiving and transmitting national defense information.^[8] The topics allegedly ranged from the activities of al-Qaeda to information about possible attacks on U.S. forces in Iraq, according to court documents.^[9]

Federal criminal attorney Douglas McNabb has also previously discussed this case here, and here.

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^[1] Jerry Markon, Rice, Others Told to Testify in AIPAC Case, Washington Post, November 3, 2007, Page A06, available at http://www.washingtonpost.com/wp-dyn/content/article/2007/11/02/AR2007110201554.html?hpid=sec-politics (last visited November 5, 2007) (The opinion by U.S. District Judge T.S. Ellis III in Alexandria directed that subpoenas be issued to officials who include Rice, national security adviser Stephen J. Hadley, former high-level Department of Defense officials Paul D. Wolfowitz and Douglas J. Feith, and Richard L. Armitage, the former deputy secretary of state, William Burns, the U.S. ambassador to Russia; Elliot Abrams, deputy national security adviser; and Kenneth Pollack, former director of Persian Gulf affairs for the National Security Council).
^[2] Id.
^[3] Id.
^[4] Id.
^[5] Id.; Former president Ronald Reagan and former attorney general Edwin I. Meese III testified at a trial arising from the Iran-contra affair in the 1980s. However this is very rare because judges usually decline to grant such subpoenas on the grounds that high-level officials are too busy or that the information can be obtained from other sources.
^[6] Id.
^[7] Id.
^[8] Id.
^[9] Id.