No Secret Trial for AIPAC Defendants

This week, federal prosecutors proposed a procedure that while purporting to protect  national defense secrets would have denied the AIPAC defendants a public trial and exposed this information to more than a dozen people with no security clearances and no obligation to keep this information secret. Federal judge T.S. Ellis, III laughed them out of court.

In the old Get Smart TV series Maxwell Smart and his superior exchanged secrets under an elaborate contraption called the Cone of Silence. It had a small problem: Under the Cone they couldn't hear each other but everyone else in the room could.  I thought of it when I read a transcript of a hearing on April 16 in U.S v. Rosen and Weissman  (The AIPAC Case). I thought of it because the government proposed and the Court rejected a ridiculous proposed procedure under which the case would be tried.

In this prosecution the government contends that the discussion between the defendants and the then-US employee Larry Franklin involved national defense information, and the government proposed an expansion of a rarely used tool "the silent witness" to keep from the public what the information in question was.

Judge Ellis ruled favorably on the defense motion to strike the government's proposed procedure for dealing with classified and NDI (nation defense information) material, which comprises the heart of the case. The Government had proposed an extension of "the silent witness rule" pursuant to which classified documents go the jury and all the testimony about the documents and the information contained in them is done by reference to the document without public disclosure of the contents of the document.  

The judge began by noting that the terms "classified" and "NDI" are not coextensive. That while the Executive has the sole authority to classify information, and the Judge cannot disturb that determination, the government must prove that the classified information is NDI (classified information, closely held and damaging to national security if disclosed). He continued by explaining the procedures of the Classified Information Protection Act, designed to assure the defense gets a fair trial without the government having to reveal classified information.

In sum, after the Court and defense counsel examine all the classified information and designate which items they intend and need to use, the court must decide if that material is relevant and admissible at trial and if he so finds, the government must, if it does not want that information public, admit certain relevant facts that the classified information would tend to prove, or substitute that information  with a summary  which the Court determines will meet the defendants' need for a fair trial without exposing national secrets.

The defense had specified which documents it wanted. Instead of offering to admit certain facts or proffer up summaries, the Government proposed a novel procedure: 

"that while the jury, the Court, and counsel will, for the most part have access to the unredacted classified information, the public will not. Instead the public, in the course of the trial, will see and hear only the substitutions"
which the Court approved under CIPA. As Judge Ellis noted:

"In other words, in putting to one side the non-insubstantial practical problems inherent in conducting a trial pursuant to this procedure, its use would appear to exclude the public from substantial and critical parts of the trial."
He noted that in a few cases a "silent witness" rule had been permitted but never before had that involved giving the jury "something different from the public" nor had it been used for "all classified information in both the government's case and the defense case." He continued by describing how the government envisioned the intricate choreography of the proposal, and to read the Get Smart nature as described by the Judge is to understand why he said it would lead to "juror confusion".

The government also proposed that

"the witness would not speak the names of certain specific countries, foreign persons, or other things, but would instead use a code which would be provided to counsel, the Court and the jury."
Hang in there with me, because the government proposal was even more ridiculous:

"The system of codes would change, moreover, to reflect with respect to different alleged overt acts... of disclosing classified information presumably to prevent the public from inferring the meaning or discerning the meaning of the code that's being used."
Why this Maxwell Smart procedure with codes that change from witness to witness so one witness' Country A, would be another's Country B? The judge said it was to wall off the public from seeing and hearing what the judge and jury, counsel and witnesses see and hear. But he ruled "What the public does not see or hear is at the heart of this case, the information the government claims is the NDI that the defendants' allegedly received and distributed without authorization." Making this even more preposterous was that the jury which would hear and see the classified information wouldn't have security clearances and could not be prevented from disclosing it to others.

Judge Ellis said CIPA covers the vetting and substitutions of classified material for "a public trial" and ruled "the authority to use substitutions is not the authority to close the trial to the public...there is no evidence that Congress expected [judicial creativity to fashion creative solutions respecting such substitutions] to extend to closure of trials." And if it did, he added, it would be manifestly unfair to the defendants to do so. He described how the government's burden of proof included the need to establish the defendants' mens rea [knowledge of wrongdoing] and that the alleged NDI was actually NDI and would be severely hobbled in doing so under this procedure.

"The Silent Witness Rule in this context essentially robs the defendant of a chance to make vivid and drive home to the jury their view that the alleged NDI is no such thing, as essentially similar material was abundant in the public domain essentially contemporaneously, and that any differences between the public source material and the alleged NDI are minor or trivial."
The Judge offered a number of examples of what he meant, including this one:

"I think it is not plausible to suggest that defense counsel could effectively cross-examine witnesses about whether information is potentially damaging to the national security by coded euphemisms like ‘the redacted policy assessment' or ‘the fact on page 10 about Country A's activity, and Country B really does.'"
Of course, this procedure would as well

"hamper defendants should they choose to testify in their defense... why they believed information they [obtained and disseminated] was not NDI. They should be able to explain precisely what they knew, when, from whom they learned it, why they didn't have the requisite mens rea"....

"Statements like, ‘I heard from Foreign Person C the fact about Country X, reflected at Exhibit A, page three, paragraph four, line two,' seem  to me to be insufficient for fairness," the Judge added .
I certainly think that point is irrefutable. (And then, he reminds us of how much more confusing it is when we add the government's "proposed frequently-changing code references". (It gives me a headache just thinking about it, frankly.) The same country would be Country A with one witness and Country B for another, and the same person would be referred to as Witness X by one witness as witness Q by another.

And while he thought the admonition to the jury to not discuss the evidence would be unavailing he also thought  the very giving of an instruction to the jury that the material shouldn't be discussed with others after the trial would necessarily confuse them and make them assume it was all NDI, the very thing the trial was to determine. He found that, too, to be "unfair and inappropriate".

The defense had raised an additional objection to the procedure on constitutional grounds that it deprived them of a public trial open to public scrutiny. Judge Ellis agreed:

"I think the quantity and quality of the material the government proposes to exclude from public view is plainly significant.... Notably, the government's proposed procedure treats even certain selected public domain documents, including news reports, as if they were classified documents.... [I]in my view , the government's proposal is equivalent to sealing essential elements of this case."
The judge detailed why public trials are important and that the government's burden to establish that closure was necessary was weighty. The government argued that a compelling interest was the classified information involved. Judge Ellis had a problem with that-the government's own proposal---  the

"proposal reflects that the classified information at issue is not so deserving of rigorous protection, since the government is willing to disclose that information to twelve or more uncleared individuals, that, is jurors plus alternatives, with only a instruction that they not disclose the information." 
Moreover, he noted the government's claim was simply conclusory and not supported by evidence-such as affidavits.

It's clear the government is concerned about the nature of its evidence being revealed publicly. I think the real reason is because it's so thin, and the public would know that if they saw it. Elsewise they'd have simply followed the perfectly standard and adequate CIPA procedure.

I think it's equally obvious that the Judge is no dope and can see smoke and mirrors even  when it's in a government motion dolled up with important sounding words like "Classified
Information" and "National Defense Information."

Update from the Washington Post:  

The Justice Department yesterday was given until May 2 to determine how it wants to proceed in the controversial prosecution of two former pro-Israel lobbyists charged with violating the 1917 Espionage Act after the federal judge in the case turned down prosecutors' attempt to close from public scrutiny a substantial portion of the trial in order to protect classified information.

Faced with the decision made Monday by U.S. District Judge T.S. Ellis III and delivered in written form yesterday, the prosecutors want time to determine whether they will appeal, suggest another way to handle classified material or drop the case altogether. 
Clarice Feldman is an attorney in Washington, DC and a frequent contributor to American Thinker.
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