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Judge denies attempt to shield evidence in espionage trial

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NEWS MEDIA UPDATE   ·   FOURTH CIRCUIT   ·   Secret Courts   ·   April 18, 2007

NEWS MEDIA UPDATE   ·   FOURTH CIRCUIT   ·   Secret Courts   ·   April 18, 2007

Judge denies attempt to shield evidence in espionage trial

  • The prosecution’s proposal to keep the public from hearing a large amount of evidence in the trial is unconstitutional, the court ruled.

(Editor’s note: a quotation was updated in this article after a hearing transcript was released.)

April 18, 2007  ·   A federal judge has rejected the prosecution’s proposal to keep the public from hearing much of the evidence that will be presented to the jury in an upcoming espionage case against two former lobbyists.

Judge T.S. Ellis in Alexandria, Va., ruled Monday that the government’s proposal to deny public access to such a large portion of the evidence presented is unconstitutional.

The defendants in the upcoming trial are Steven Rosen and Keith Weissman, both formerly lobbyists with the American Israel Public Affairs Committee. They are charged with conspiring to communicate national defense information.

The government is arguing that a large amount of the evidence involved in the case is classified information.

Thus, the government proposed that only the judge, lawyers and the jury would have access to a large degree of the evidence the government says is sensitive. The trial would have been conducted in open court, but witnesses and lawyers would have referred to allegedly classified evidence using coded language.

For instance, countries would have been referred to as “Country A” or “Country B.” The jurors would have a code sheet so that they would know the real name of the countries.

The prosecution also suggested having the jury listen to evidence on headphones so that the audience sitting in the courthouse could not hear.

However, the defense opposed the government’s suggestions, saying that the proposal would violate the defendants’ right to a fair and open trial as well as the public’s right of access.

A crucial aspect of the trial is whether the information Rosen and Weissman allegedly disclosed is “national defense information” – information that is both closely held and potentially damaging to national security. The defense is arguing that the information is not national defense information.

The prosecution’s proposed method of presenting the evidence to the jury would send the message that the evidence is highly sensitive and thus inevitably skewer the jurors’ ability to determine whether the evidence is national defense information, defense attorneys argued.

The government countered that these procedures are allowed under the Classified Information Procedures Act (CIPA) and the so-called “silent witness rule.”

In federal prosecutions such as this where sensitive information needs to be presented as evidence, CIPA provides procedures for protecting the information.

Under CIPA, the government can provide substitutions or redacted versions of the evidence, with the classified information “scrubbed” from the versions presented in court.

There is also some precedent for the “silent witness rule,” where jurors are, on very rare occasions, allowed to see classified information that is never revealed to the public.

A coalition of news media organizations, including The Reporters Committee for Freedom of the Press, filed a motion to intervene last week, arguing that such procedures would violate the public’s constitutional right of access to trials.

The judge denied the media’s motion, saying, “The facts and argument are adequately set forth in the parties’ briefs on this matter.”

However, he issued a favorable opinion for the press, ruling that the proposed procedures are unconstitutional and not provided for by CIPA.

Ellis pointed out that CIPA provides a mechanism to provide substitutions and redactions at trial in lieu of using the classified evidence. He emphasized that the authority to use substitutions is not the authority to close the trial to the public.

Ellis acknowledged that the use of the silent witness rule has been approved in some cases and that “there might be isolated instances where a version of the Silent Witness Rule might work.” But permitting the government’s proposal would require a substantial expansion of the rule.

“The wholesale use of it as proposed by the government, across the board on these crucial issues, effectively closes portions of this trial,” Ellis said.

“Justice must not only be done. It must also be seen,” he added.

He agreed that the prosecution’s proposal could send a biased message to the jury about the sensitivity of the information. Ellis also noted that the government’s suggested system “not only invites juror confusion, but virtually guarantees it.”

The government must now decide its next step. Options include appealing the trial judge’s decision and submitting new substitutions that do not rely so heavily on the silent witness rule. The judge set a public status conference to be held on Thursday.

(U.S. v. Rosen, Media Intervenors’ Counsel: Jay Ward Brown and John O’Keefe, Levine Sullivan Koch & Schulz, Washington, D.C.)CS

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