- The Washington Times - Wednesday, February 25, 2009

The U.S. government Tuesday lost a critical appeal in a case involving America’s largest pro-Israel organization - a development that could bolster the rights of reporters, lobbyists and social activists to obtain and publicize classified government information.

The 4th U.S. Circuit Court of Appeals rejected the government’s latest effort to loosen the high standard it has to meet to prosecute Steven J. Rosen and Keith Weissman, who are former lobbyists for the American Israel Public Affairs Committee (AIPAC).

The two men were accused in 2005 under a 1917 espionage law of obtaining classified information about Iran and leaking the information to a Washington Post reporter and an Israeli diplomat. The case has attracted strong interest from both the foreign policy community and civil liberties groups.

Mr. Rosen and Mr. Weissman are the first private citizens prosecuted under the Espionage Act for mishandling classified information obtained through conversation, a precedent that, if upheld, could make much national security journalism and foreign-policy lobbying a federal crime.

Advocates of more openness involving national-security matters said the ruling Tuesday could spell the end of the case.

“I think it dictates a losing outcome for the government sooner rather than later,” said Steven Aftergood, director of the project on government secrecy at the Federation of American Scientists. “This has been an extraordinary case in which nongovernment employees who do not hold security clearances are accused of a crime based on the fact that they received classified information and disseminated it. That is the kind of transaction that countless reporters, lobbyists and activists engage in all the time. This was really a landmark case that could have been disastrous for freedom of the press if it turned out another way.”

“It’s a really good week for us,” said Mr. Weissman, who, like Mr. Rosen, lost his job at AIPAC after the charges were filed. “It’s not done, but the landscape may shift.”

AIPAC and Mr. Rosen declined to comment.

The appeals court ruled that it did not have the jurisdiction to reopen a 2006 ruling by Judge T.S. Ellis III that the prosecution must prove that Mr. Rosen and Mr. Weissman knew the information they had received and disclosed was potentially damaging to national security.

“That is a very high bar to meet in court,” said Baruch Weiss, an attorney for Mr. Weissman.

Gregg Leslie, legal-defense director for the Reporters Committee for Freedom of the Press, said he was pleased that a higher standard for prosecuting private citizens appears to remain.

“We are definitely happy to see that again the judges are demanding a great deal for a private citizen in this case, or a journalist in another case, to be prosecuted under the espionage statute,” he said.

Peter Carr, a spokesman for the U.S. attorney’s office for the Eastern District of Virginia, said the government was “reviewing the decision and will respond in court.” A conference is scheduled for Thursday at the Federal Courthouse in Alexandria.

An initial appeal by the government attempted to limit the classified documents that the defense could introduce.

“The defendants have said they needed to show classified information to show that their disclosures did not violate the law,” said Abbe Lowell, attorney for Mr. Rosen. “The trial court agreed with them, and now the court of appeals has agreed as well. With the court’s rulings on what the government must prove and the rulings as to who we can call as witnesses, the defendants are very anxious to go trial.”

Ben Conery and Barbara Slavin contributed to this report.

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