AIPAC Court Considers “Silent Witness” Procedure

The forthcoming trial of two former officials of the American Israel Public Affairs Committee who are charged with mishandling classified information “won’t be a closed trial,” said Judge T.S. Ellis III at a March 15 hearing (pdf), notwithstanding some “hyperbolic” suggestions to the contrary.

But there is an open question as to whether the prosecution may employ something called the “silent witness” rule. That refers to the practice of providing evidence to the defense and to the jury, but withholding it from the public.

Such a procedure would amount to “closing” the courtroom in effect, the defense argued, “because, once inside, the public and press would not, in any meaningful sense, actually hear the central evidence in the case.”

The government proposal is “unworkable, prejudicial and fundamentally unfair,” the defense stated in a March 21 motion (pdf). It “will not only make meaningful cross-examination of critical government witnesses impossible, but will send a continuous message to the jury that the information at issue is [national defense information] deserving of protection — the very issue that the jury must itself decide.”

“I have to resolve this significant issue about whether this is really constitutional,” Judge Ellis said on March 15. He ordered additional briefs on the subject from both parties. The defense brief, filed March 21, is here. The government brief, due March 28, is not yet available. The transcript of the March 15 hearing is here.

The closely-watched trial is scheduled to begin on June 4.

The Jewish Telegraphic Agency reported that “the FBI was considering expanding its investigation into AIPAC and classified information leaks in early 2005 when the pro-Israel lobbying powerhouse fired two staffers already under scrutiny.” See “Defense: Feds eyeballed AIPAC until it cut off Rosen, Weissman” by Ron Kampeas, March 27.