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, notwithstanding some "hyperbolic" suggestions to the contrary. But there is 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.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: http://www.fas.org/sgp/jud/rosen032107.pdf The government brief, due March 28, is not yet available. The transcript of the March 15 hearing is here: http://www.fas.org/sgp/jud/rosen031507.pdf The closely-watched trial is scheduled to begin on June 4.
Republished from the Secrecy News blog at http://www.fas.org/blog/secrecy, a project of the Federation of American Scientists. Discuss the social, security and political implications of science and technology at the Science Policy group on Gather, at FAS.gather.com Visit the FAS website at www.fas.org
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