Classification markings will be removed from classified documents that are admitted into evidence in the upcoming trial of two former officials of the American Israel Public Affairs Committee (AIPAC), a court ruled earlier this month. The former AIPAC officials, Steven J. Rosen and Keith Weissman, are accused of unauthorized receipt and disclosure of classified information.
“To see this onslaught of documents marked Secret, Top Secret, NOFORN — it creates an atmosphere that is just unfair,” said Judge T.S. Ellis, III at a November 8 hearing (pdf).
“I find that looking at this mass of documents, as I have, with all of these prominent inch-and-a-half stamps of Secret, Secret, creates I think unfair prejudice [and] likelihood of confusion with the jury.”
A legal issue arises because such classification markings “have both [inadmissible] hearsay and [admissible] nonhearsay purposes,” he said.
The legitimate nonhearsay purpose is that the markings “show that the Government intended that this be closely held information.”
However, to the extent that the markings indicate the classifier’s “opinion as to whether disclosure of this material would be damaging to the national interest, that’s clearly hearsay” and is impermissible, particularly since the classifier is not present at trial.
After discussing the issue at length, Judge Ellis ruled that “the bold, large classified markings for any documents that are admitted will be removed.” Instead, there will be a stipulation by the parties that the documents were classified and the judge will instruct the jury to consider classification status only for the purpose of determining whether the information was closely held or not.
The November 8 hearing also considered the question of juror bias.
“There are very significant problems with selecting a jury in this case owing to the nature of the case and owing to the publicity that this case has been accorded,” Judge Ellis said, noting “that there may be an animus in prospective jurors that should not be operating. And of course, I am referring to anti-Semitism.”
He asked the parties to draft a questionnaire for use in the jury selection process.
“You don’t ask people, are you an anti-Semite and expect to get a straightforward answer. But I leave to you how that can be reasonably explored,” he said.
A related legal question that remains unresolved is whether potential jurors can be dismissed peremptorily based on their religion or ethnicity.
“In other words, can the Government strike someone [from the jury] just because his name ends in Stein or whatever, or can the defense strike somebody because his name is Mohammed,” Judge Ellis said.
The transcript of the November 8 hearing is not in the PACER system of online federal court records, but a copy was obtained by Secrecy News.
The trial, which has been repeatedly postponed, will not take place before March 2008.