Two former AIPAC lobbyists accused of disclosing national defense secrets to Israel will be permitted to use some classified information at their trial. So ruled a Virginia federal appeals court on Tuesday.

The setback for the prosecution is so great that the defense team believes it might persuade the government to drop the case altogether.  Two of the defense lawyers, John Nassikas III and Baruch Weiss, were quoted in the International Herald Tribune expressing their expectation that this ruling, together with an earlier one in their favor, “will hopefully cause the government to reconsider its prosecution of the case.”

On trial are Steven J. Rosen and Keith Weissman, two former employees of the AIPAC (American Israeli Public Affairs Committee) lobby for Israel. They are charged with conspiring to obtain classified documents and sharing them with former diplomats, reporters, and others.

The setback for the prosecution is so great that the defense team believes it might persuade the government to drop the case altogether.

Over the prosecution’s objections, the three-judge panel of the 4th U.S. Circuit Court of Appeals ruled unanimously that the defendants are permitted to present certain information in their defense.  The prosecution claimed the information was classified.

Rosen’s lawyer, Abbe Lowell, told Associated Press that the material they want to use is crucial to their defense, as it shows that the information they allegedly disclosed "was not classified, was not national defense information and its disclosure did not violate the law."

Supporters: They Were Unfairly Targeted

Rather, Rosen and Weismann argue that the information they shared is not only commonly traded by Washington insiders, but that government officials tacitly support such disclosures.  Their supporters say the two were unfairly singled out, having traded in information in the generally-accepted manner of policy making and lobbying.

Their next trial date, after nine postponements since 2005, is April 21 – unless the government appeals the latest ruling.  "We are reviewing the decision and will respond in court," said Peter Carr, a spokesman for the U.S. attorney's office in Alexandria, without elaborating.

Rosen and Weissman are not charged with espionage, but with violating the World War I-era Espionage Act for sharing information they learned from foreign policy officials in the Bush administration.  The maximum penalty is ten years per count; Rosen is charged with two counts and Weissman with one.

In Their Favor

In another recent ruling, the defendants won the right to subpoena top Bush administration officials, including ex-Secretary of State Condoleeza Rice. The defense will use their testimony to show that the United States regularly uses AIPAC to send back-channel communications to Israel.

Not in Their Favor

On the other hand, harmful to the defense case is the conviction last year of a former U.S. Air Force Reserve colonel on charges of unauthorized disclosure of classified information to Rosen and Weissman.  Lawrence A. Franklin was sentenced to 12.5 years in prison.