AIPAC Court Adopts Silent Witness Rule

Prosecutors will be permitted to secretly present certain recorded surveillance data to a jury in the forthcoming trial of two former officials of the American Israel Public Affairs Committee (AIPAC) who are accused of unauthorized receipt and disclosure of classified information, a federal judge ruled (pdf) last week.

Although the closely watched AIPAC case will not go to trial until January, it has already left a distinct imprint on national security law and litigation.

In eleven memorandum opinions issued to date, Judge T.S. Ellis, III has significantly reinterpreted the Espionage Act of 1917, broken new legal ground in implementing the Classified Information Procedures Act (which regulates the use of classified information in criminal trials), and set other precedents.

Last week, Judge Ellis approved limited use at trial of the so-called “silent witness rule,” an unconventional tactic that permits prosecutors to withhold evidence from the public and to disclose it only to the parties, the witnesses and the jury. Because this amounts to closing the trial, it runs the risk of infringing on constitutional guarantees that trials will be public.

The silent witness rule “is a novel evidence presentation technique that has received little judicial attention is the context of the use of classified information in trials,” Judge Ellis noted. “No published decision has explicitly approved or endorsed use of the rule in this context.”

But that has now changed. Judge Ellis approved limited use of the rule to secretly introduce evidence — more evidence than the defense wanted, but less than the prosecution asked for.

Prosecutors had initially sought to introduce 18 minutes and 24 seconds of recorded surveillance conversations along with 36 documents under the silent witness rule. But Judge Ellis only approved “silent” introduction of 4 minutes and 6 seconds of recorded conversation (and apparently no documents).

See Judge Ellis’ November 1 Memorandum Opinion here (pp. 10-20).

In the same Opinion, Judge Ellis restated the stringent standard that he has set for the prosecution to win a conviction on charges of conspiracy to violate the Espionage Act by oral disclosure of national defense information (NDI):

“The government must prove beyond a reasonable doubt that… the defendants (i) knew that the information … was NDI, i.e. knew that the information was closely held by the government and that the disclosure of the information would be damaging to the national security, (ii) knew the persons to whom the disclosures would be made were not authorized to receive the information, (iii) knew the disclosures the conspiracy contemplated making were unlawful, (iv) had reason to believe the information disclosed could be used to the injury of the United States or to the aid of a foreign nation, and (v) intended that such injury to the United States or aid to a foreign nation result from the disclosures.”

“The conspiracy charge fails absent proof of these mental state elements,” Judge Ellis wrote (pp. 9-10).

Also last week, Judge Ellis issued another Opinion approving a defense request for authorization to subpoena testimony from fifteen current and former officials, including Secretary of State Condoleezza Rice.

“The government’s refusal to comply with a subpoena in these circumstances may result in dismissal or a lesser sanction,” Judge Ellis warned in that November 2 Opinion (pdf).