by Steven Aftergood, Secrecy News.

A federal court this week rejected a government proposal to
restrict public access to evidence in the forthcoming trial of
two former officials of the American Israel Public Affairs
Committee who are charged under the Espionage Act with
unauthorized receipt and transmission of classified

Using a procedure called the Silent Witness Rule, the
prosecution had proposed to present classified evidence to the
jury but to withhold it from the public and from open
deliberation during trial.

"I think it is fair to say that the government's proposal is
novel," said Judge T.S. Ellis, III on April 16.

But he said that because the evidence could not be openly
addressed in court, the proposed procedure "would render
virtually impossible an effective line of cross-examination
that might be vital to the defense."

Therefore, the judge ruled, "you can't do it. It closes the
trial. It's unconstitutional. It's unfair to the defendants."

Explaining what is at stake, Judge Ellis elaborated:

"A public trial requires witnesses' testimony to be public, so
it deters perjury. It requires a judge's rulings to be made in
public, as today, so it deters partiality and bias. And by
requiring prosecutors to present their charges and evidence
publicly, it deters vindictiveness and abuse of power."

Another "novel and distinctive" feature of the government
proposal noted by Judge Ellis is that prosecutors were prepared
to share classified evidence with jurors who do not hold
security clearances.  ("Interestingly, there is some authority
for that," he observed.)

More dubiously, the judge said, "the government's proposed
procedure treats even certain selected public domain documents,
including news reports, as if they were classified documents."

At any rate, while the government may suggest unclassified
substitutions for classified evidence (as provided by the
Classified Information Procedures Act), the proposal to
withhold evidence from the public altogether was decisively

At the conclusion of the April 16 hearing it was unclear how the
government would proceed, and even whether the trial itself
could go forward.

If the prosecution "decline[s] to submit any substitutions [for
classified evidence] that you would ever make public," Judge
Ellis warned, "then maybe ... I have decide whether to dismiss
the indictment, if that's the case."

The transcript of the April 16 hearing provided substantive
discussion of the issues involved in handling classified
evidence and the importance of open trials, along with some
intense legal maneuvering and occasional flashes of humor.  A
copy was obtained by Secrecy News. /rosen041607.html

A follow-up hearing was scheduled this afternoon (April 20) to
identify the prosecution's next step.