Court Authorizes Subpoenas of Senior Officials in AIPAC Case

[simuvac]

http://www.fas.org/blog/secrecy/2007/11/court_authorizes_subpoenas_of.html

Court Authorizes Subpoenas of Senior Officials in AIPAC Case

A federal court authorized issuance of subpoenas to more than a dozen current and former government officials to testify in the case of two former officials of the American Israel Public Affairs Committee who are accused of unauthorized receipt, transmission and disclosure of classified information.

According to the defense, the testimony of the subpoenaed officials will show that the defendants did "nothing more than the well-established official Washington practice of engaging in 'back channel' communication with various non-governmental entities and persons for the purpose of advancing U.S. foreign policy goals."

The government disputes that claim and says such testimony is irrelevant to whether the defendants engaged in a conspiracy to obtain and disclose classified information.

The court, however, ruled (http://www.fas.org/sgp/jud/aipac/memop110207.pdf) (pdf) that circumstantial evidence of the official use of "back channel" communications could be probative of the defendants' state of mind and could show a lack of criminal intent.

Judge T.S. Ellis III therefore authorized issuance of subpoenas to the following officials:



Condoleezza Rice, Secretary of State (then-National Security Advisor)



Richard Armitage, former Deputy Secretary of State



William Burns, U.S. Ambassador to Russia



Marc Grossman, former Undersecretary of State for Political Affairs



Lawrence Silverman, Deputy Chief of Mission of the U.S. Embassy to the Slovak Republic



Matthew Bryza, Deputy Assistant Secretary of State



Marc Sievers, Political Officer, U.S. Embassy to Israel



David Satterfield, Senior Advisor to the Secretary of State and Coordinator for Iraq (then-Deputy Assistant Secretary of State, Bureau of Near Eastern Affairs)



Stephen Hadley, National Security Advisory (then-Deputy National Security Advisory)



Elliot Abrams, Deputy Assistant to the President and Deputy National Security Advisory for Global Democracy Strategy Affairs



Kenneth Pollack, former Director for Persian Gulf Affairs for the National Security Council



Paul Wolfowitz, former Deputy Secretary of Defense



Douglas Feith, former Undersecretary of Defense



Michael Makovsky, former employee of the Office of the Secretary of Defense, Office of Near East and South Asia



Lawrence Franklin, former Department of Defense employee
A copy of the November 2, 2007 Memorandum Opinion (http://www.fas.org/sgp/jud/aipac/memop110207.pdf) in the case of United States of America v. Steven J. Rosen and Keith Weissman is available here (http://www.fas.org/sgp/jud/aipac/memop110207.pdf).

[simuvac]

http://www.fas.org/blog/secrecy/2007/11/aipac_court_adopts_silent_witn.html

AIPAC Court Adopts Silent Witness Rule

Prosecutors will be permitted to secretly present certain recorded surveillance data to a jury in the forthcoming trial of two former officials of the American Israel Public Affairs Committee (AIPAC) who are accused of unauthorized receipt and disclosure of classified information, a federal judge ruled (http://www.fas.org/sgp/jud/aipac/memop110107.pdf) (pdf) last week.

Although the closely watched AIPAC case will not go to trial until January, it has already left a distinct imprint on national security law and litigation.

In eleven memorandum opinions issued to date, Judge T.S. Ellis, III has significantly reinterpreted the Espionage Act of 1917, broken new legal ground in implementing the Classified Information Procedures Act (which regulates the use of classified information in criminal trials), and set other precedents.

Last week, Judge Ellis approved (http://www.fas.org/sgp/jud/aipac/memop110107.pdf) limited use at trial of the so-called "silent witness rule," an unconventional tactic that permits prosecutors to withhold evidence from the public and to disclose it only to the parties, the witnesses and the jury. Because this amounts to closing the trial, it runs the risk of infringing on constitutional guarantees that trials will be public.

The silent witness rule "is a novel evidence presentation technique that has received little judicial attention is the context of the use of classified information in trials," Judge Ellis noted (http://www.fas.org/sgp/jud/aipac/memop110107.pdf). "No published decision has explicitly approved or endorsed use of the rule in this context."

But that has now changed. Judge Ellis approved limited use of the rule to secretly introduce evidence -- more evidence than the defense wanted, but less than the prosecution asked for.

Prosecutors had initially sought to introduce 18 minutes and 24 seconds of recorded surveillance conversations along with 36 documents under the silent witness rule. But Judge Ellis only approved "silent"
introduction of 4 minutes and 6 seconds of recorded conversation (and apparently no documents).

See Judge Ellis' November 1 Memorandum Opinion here (http://www.fas.org/sgp/jud/aipac/memop110107.pdf) (pp. 10-20).

In the same Opinion, Judge Ellis restated the stringent standard that he has set for the prosecution to win a conviction on charges of conspiracy to violate the Espionage Act by oral disclosure of national defense information (NDI):

"The government must prove beyond a reasonable doubt that... the defendants (i) knew that the information ... was NDI, i.e. knew that the information was closely held by the government and that the disclosure of the information would be damaging to the national security, (ii) knew the persons to whom the disclosures would be made were not authorized to receive the information, (iii) knew the disclosures the conspiracy contemplated making were unlawful, (iv) had reason to believe the information disclosed could be used to the injury of the United States or to the aid of a foreign nation, and (v) intended that such injury to the United States or aid to a foreign nation result from the disclosures."

"The conspiracy charge fails absent proof of these mental state elements," Judge Ellis wrote (http://www.fas.org/sgp/jud/aipac/memop110107.pdf) (pp. 9-10).

Also last week, Judge Ellis issued another Opinion approving a defense request for authorization to subpoena (http://www.fas.org/blog/secrecy/2007/11/court_authorizes_subpoenas_of.html) testimony from fifteen current and former officials, including Secretary of State Condoleezza Rice.

"The government's refusal to comply with a subpoena in these circumstances may result in dismissal or a lesser sanction," Judge Ellis warned in that November 2 Opinion (http://www.fas.org/sgp/jud/aipac/memop110207.pdf) (pdf).

[simuvac]

"The conspiracy charge fails absent proof of these mental state elements,"

I get the feeling there is going to be a "not guilty" verdict here. I'm no lawyer, but it seems to me like the criteria for proving "conspiracy" are simply too great to be achieved. The criteria for "proof of mental state" seem really difficult to meet, unless they have surveillance footage of someone saying, "I know these are national secrets, and I am intentionally sharing them with people whom I know will use them against the United States."

For example, what kind of spy worth his salt would leave documentary evidence of the following:

(iv) had reason to believe the information disclosed could be used to the injury of the United States or to the aid of a foreign nation, and (v) intended that such injury to the United States or aid to a foreign nation result from the disclosures.