Sterling Defense Argues Against Secret Evidence

08.22.11 | 2 min read | Text by Steven Aftergood

Prosecutors in the case of former CIA officer Jeffrey Sterling, who is accused of leaking classified information, should not be permitted to present their evidence at trial in modified or redacted form and should also not be able to employ other extraordinary security measures, defense attorneys argued in an August 19 pleading (pdf).

Specifically, the defense team said that prosecutors should not be allowed to use the provisions of the Classified Information Procedures Act (CIPA) to introduce unclassified substitutions for classified evidence that they wish to present.

The purpose of CIPA, the defense said, is to allow the defendant to present exculpatory classified evidence in an unclassified form while preventing “graymail,” i.e. the threat to disclose classified information as a tactic for evading prosecution.

But CIPA does not entitle prosecutors to introduce their own classified evidence in redacted form, the defense argued, particularly since “the Government… cannot ‘graymail’ itself.”  Instead, the prosecution “must either declassify information it wishes to use in its case-in-chief or forego using that information.”

“What CIPA does not provide is the ability of the Government to prosecute a defendant using substitute or redacted evidence against him in its case-in-chief,” the defense said.

The Sterling defense also objected to the prosecutors’ proposed use of the “silent witness” rule, by which classified information is shared with the jury but not disclosed in open court.

The silent witness rule is fundamentally unfair, is not authorized by law, is possibly unconstitutional, and should not be approved by the court, the defense said.  (The proposal to invoke the silent witness rule was first reported by Josh Gerstein in Politico on August 10.)

“It will be impossible effectively to contest and challenge the Government’s evidence before a jury if the Court permits use of the silent witness rule, which would impermissibly provide the stamp of secrecy and national security importance to information that the Government has elected to disclose in a criminal trial where those very issues are contested.  The Court must decline this invitation to conduct an unfair and constitutionally impermissible trial,” the defense said.

For similar reasons, the defense also objected to the proposed use of security measures such as initials and screens to conceal the identities of government witnesses.

“The Department of Justice, surely after consultations with the CIA, approved this prosecution,” the defense pleading said.  “In doing so, it should have expected an open and public trial that featured all of the Constitutional protections afforded a defendant in the United States.”