A federal court this week rejected a government proposal to restrict public access to evidence in the forthcoming trial of two former officials of the American Israel Public Affairs Committee who are charged under the Espionage Act with unauthorized receipt and transmission of classified information.
Using a procedure called the Silent Witness Rule, the prosecution had proposed to present classified evidence to the jury but to withhold it from the public and from open deliberation during trial.
“I think it is fair to say that the government’s proposal is novel,” said Judge T.S. Ellis, III on April 16.
But he said that because the evidence could not be openly addressed in court, the proposed procedure “would render virtually impossible an effective line of cross-examination that might be vital to the defense.”
Therefore, the judge ruled, “you can’t do it. It closes the trial. It’s unconstitutional. It’s unfair to the defendants.”
Explaining what is at stake, Judge Ellis elaborated:
“A public trial requires witnesses’ testimony to be public, so it deters perjury. It requires a judge’s rulings to be made in public, as today, so it deters partiality and bias. And by requiring prosecutors to present their charges and evidence publicly, it deters vindictiveness and abuse of power.”
Another “novel and distinctive” feature of the government proposal noted by Judge Ellis is that prosecutors were prepared to share classified evidence with jurors who do not hold security clearances. (“Interestingly, there is some authority for that,” he observed.)
More dubiously, the judge said, “the government’s proposed procedure treats even certain selected public domain documents, including news reports, as if they were classified documents.”
At any rate, while the government may suggest unclassified substitutions for classified evidence (as provided by the Classified Information Procedures Act), the proposal to withhold evidence from the public altogether was decisively rejected.
At the conclusion of the April 16 hearing it was unclear how the government would proceed, and even whether the trial itself could go forward.
If the prosecution “decline[s] to submit any substitutions [for classified evidence] that you would ever make public,” Judge Ellis warned, “then maybe … I have decide whether to dismiss the indictment, if that’s the case.”
The transcript of the April 16 hearing provided substantive discussion of the issues involved in handling classified evidence and the importance of open trials, along with some intense legal maneuvering and occasional flashes of humor. A copy was obtained by Secrecy News.
A follow-up hearing was scheduled this afternoon (April 19) to identify the prosecution’s next step.
Update: See Justice Dept. Given 2 Weeks to Weigh Use of Classified Data in Espionage Case, Washington Post, April 20.