1
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) CRIMINAL ACTION
)
STEVEN J. ROSEN, ) 1:05 CR 225
KEITH WEISSMAN, )
)
Defendants. )
)
REPORTER'S TRANSCRIPT
MOTIONS HEARING
Monday, April 16, 2007
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BEFORE: THE HONORABLE T.S. ELLIS, III
Presiding
APPEARANCES: OFFICE OF THE UNITED STATES ATTORNEY
BY: KEVIN DIGREGORY, AUSA
NEIL HAMMERSTROM, AUSA
THOMAS REILLY, SAUSA (DOJ)
MICHAEL MARTIN, SAUSA (DOJ)
For the Government
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MICHAEL A. RODRIQUEZ, RPR/CM/RMR
Official Court Reporter
USDC, Eastern District of Virginia
Alexandria, Virginia
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 APPEARANCES (Continued):
2 ABBE LOWELL, ESQ.
ERICA PAULSON, ESQ.
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For Defendant Rosen
4
JOHN NASSIKAS, ESQ.
5 KAVITHA BABU, ESQ.
KATE BRISCOE, ESQ.
6 BARUCH WEISS, ESQ.
7 For Defendant Weissman
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MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 INDEX
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3 RECAPITULATION BY THE COURT 5
4 RULING BY THE COURT 7
5 FURTHER PROCEEDINGS 46
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(Court recessed)
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MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 PROCEEDINGS
2
3 (Court called to order at 2:07 p.m. in USA v.
4 Rosen, Weissman)
5 THE CLERK: 1:05 Criminal 225, United States
6 versus Rosen and Weissman.
7 Would counsel please note your appearances?
8 THE COURT: All right, for the record,
9 Mr. Reilly, you're here for the government?
10 ATTORNEY REILLY: That's correct, your Honor.
11 I'm here with Kevin DiGregory and Neil Hammerstrom from the
12 United States Attorney's Office, and Michael Martin from the
13 Counterespionage Section at the Department of Justice.
14 THE COURT: All right. Good afternoon to you.
15 And for Mr. Rosen?
16 ATTORNEY LOWELL: Good afternoon, your Honor.
17 Abbe Lowell and Erica Paulson on behalf of Dr. Rosen.
18 We want to note, your honor, as we have filed
19 our appellate case, Rosen has gone over to the other side.
20 THE COURT: Where -- where has he gone?
21 ATTORNEY LOWELL: He has gone back from whence
22 he came, to be head of the Division of the United States
23 Attorney's Office in District of Delaware.
24 THE COURT: I see.
25 ATTORNEY LOWELL: And our colleague,
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 Scott Balbert, from New York would be here to have been
2 introduced, but every plane and every train has been
3 canceled, apparently, today.
4 THE COURT: Is that right?
5 ATTORNEY LOWELL: Almost every one this morning
6 was canceled, yes.
7 THE COURT: Must be the wind.
8 ATTORNEY LOWELL: Yes, it was.
9 THE COURT: All right. Thank you, Mr. Lowell.
10 Mr. Nassikas, you're here for Mr. Weissman?
11 ATTORNEY NASSIKAS: Yes, your Honor.
12 THE COURT: But Mr. Weiss is still here.
13 ATTORNEY NASSIKAS: Yes, Mr. Weiss is here.
14 Ms. Briscoe, Kate Briscoe, and Kavitha Babu on
15 behalf of Keith Weissman.
16 THE COURT: All right. Thank you.
17 RECAPITULATION BY THE COURT
18 THE COURT: All right. This matter was
19 scheduled today with respect to the defendant's motion to
20 strike the government's request for a proposed procedure to
21 be used in connection with certain classified material, and
22 This is an open hearing.
23 I received two requests to intervene, but the
24 Reporters' Committee for -- well, a whole Bunch of folks --
25 Reporters' Committee For Freedom of the Press, ABC,
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1 et cetera, et cetera, et cetera. And also AMCHA, the
2 coalition for Jewish concerns.
3 I have denied both requests to participate as
4 amicus in this case, because I have found that the parties'
5 briefs adequately present the issues and the arguments, and
6 that the further participation by the amicus parties would
7 not aid the decisional process.
8 Similarly, I have reached the conclusion that
9 oral argument would not aid the decisional process, and I
10 have decided the matter. While I have not yet completed the
11 memorandum opinion, I'm going to render my decision orally
12 now from the bench. The -- this is --
13 ATTORNEY LIEBERMAN: Excuse me, your Honor.
14 THE COURT: Yes?
15 ATTORNEY LIEBERMAN: My name is Steven
16 Lieberman --
17 THE COURT: I've ruled.
18 ATTORNEY LIEBERMAN: I understand, your Honor.
19 I'm asking your Honor to reconsider --
20 THE COURT: I have.
21 ATTORNEY LIEBERMAN: -- the ruling in light of
22 two Fourth Circuit cases.
23 THE COURT: I have ruled.
24 ATTORNEY LIEBERMAN: Thank you, your Honor.
25
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 RULING BY THE COURT
2 THE COURT: This is an Espionage Act
3 prosecution. It involves substantial amounts of classified
4 information. The government contends this information, much
5 of it, is national defense information, and it seeks to
6 avoid public disclosure of this material in the course of
7 the trial.
8 Now, at the outset I think it is important to
9 keep in mind that there is a distinction between classified
10 material and NDI. Those sets may not be coextensive.
11 The Executive Branch, pursuant to regulations,
12 of course, may classify material in various categories and
13 may take appropriate measures to protect that information
14 from disclosure. That's classified material.
15 In contrast, national defense information is a
16 statutory term. It's an element of an Espionage Act
17 violation. To qualify as NDI, information must meet a
18 number of requirements, including that it be closely held
19 and potentially damaging to national security if disclosed.
20 Other opinions that I've written in this case
21 make clear the role that the element of NDI plays in this
22 case.
23 In any event, it's possible that the set of
24 classified information may not be coextensive with NDI. In
25 other words, all material that the Executive Branch
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 classifies is -- is not, ipso facto, NDI. The government
2 must prove beyond reasonable doubt that it's NDI, as I have
3 written about before. Classified status may be probative of
4 whether something is NDI, but it's only a factor. It's not
5 conclusive.
6 I'm not going to summarize the allegations of
7 the superseding indictment, but it's sufficient to say that
8 both of these defendants are charged with conspiracy to
9 communicate NDI to persons not authorized to receive it.
10 And one of the defendants, Rosen, is additionally charged
11 with aiding and abetting an alleged coconspirator, Lawrence
12 Franklin, in making unauthorized communications of NDI to
13 persons not authorized to receive it.
14 Essentially, what the factual context is, is
15 that over the course of several years these defendants, as
16 members of their lobbying organization, cultivated sources
17 of information within the government. And the superseding
18 indictment suggests they obtained NDI from these sources,
19 and then disseminated the NDI to persons not authorized to
20 receive it, including coworkers, foreign government
21 officials, journalists and others. There are more complete
22 recitation of the allegations in the various opinions that
23 I've previously written.
24 Now, because the prosecution involved
25 classified material, or it does involve classified material,
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 CIPA governs the use of the material at trial. And the
2 purpose of CIPA, of course, is to provide a process that
3 harmonizes the defendants' right to obtain and present
4 exculpatory material, and the government's right to protect
5 classified information. And I think it is useful, as both
6 preface and context, for the Court to recite briefly what
7 the CIPA procedures have been so far in this case.
8 Well, there was a pretrial conference held
9 pursuant to Section 2, and protection orders issued pursuant
10 to CIPA Section 3. I think there were a couple of
11 protective orders that were in this public order. I think
12 one protective order is sealed. November 15th, I believe,
13 is sealed. In any event, following entry of these orders,
14 discovery proceeded as authorized by the Federal Criminal
15 Procedure and CIPA Section 4.
16 Then, pursuant to CIPA Section 5, defendants
17 gave notice, as required, of their intention to introduce at
18 trial a substantial amount of material they reasonably
19 expected might disclose or cause the disclosure of
20 classified material.
21 And as I said, this notice listed a large
22 volume of material. This is so, in part, because the
23 indictment alleges a number of distinct elements of NDI
24 covering a range of distinct subjects, and in part because
25 defense counsel cannot know whether the government might
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1 assert that certain materials defendants propose for use at
2 trial would be classified or would cause disclosure of
3 classified information.
4 So the next step in the CIPA process was a
5 hearing requested by the government pursuant to CIPA Section
6 6(a), at which the Court would begin the process of making
7 determinations concerning the use, relevance or
8 admissibility of classified information that would otherwise
9 be made during the trial.
10 I think in the course of those I would
11 occasionally grouse about the need, or the statutory
12 necessity, essentially, to try a case in excruciating detail
13 before it's tried. But that's what the law required,
14 that -- and understandably and reasonably -- that these
15 determinations have to be made in this hearing.
16 In the course of the hearings, some of the
17 potentially classified material defendants sought to be used
18 at trial was ruled irrelevant and inadmissible by the Court,
19 pursuant for Rules 402 and 403, while still a quite
20 substantial volume of material considered to be classified
21 or to cause the disclosure of classified material was ruled
22 relevant and admissible.
23 And an order entered to that effect. It's a
24 sealed order.
25 This hearing, and the rulings that grew out of
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 it, began, but didn't complete, the Section 6 process. A
2 further hearing is now required pursuant to Section 6(c), at
3 which the government would be afforded an opportunity either
4 to declassify material ruled relevant and admissible at
5 trial, or, alternatively, to move that, in lieu of
6 disclosing the classified information, that the government
7 be allowed to substitute for such classified information a
8 statement either admitting certain relevant facts that the
9 classified information would tend to prove, or a summary of
10 the specified classified information.
11 The government has filed such a motion with
12 respect to a substantial volume of the classified
13 information ruled relevant material. And the Section 6(c)
14 hearings now scheduled for Thursday at 2:00 o'clock will be
15 a closed hearing, as the government has so requested, and
16 CIPA provides that any such hearing shall be held in camera
17 at the request of the attorney general.
18 Now, the defendants for their part contest the
19 substitution advanced by the government for approximately 38
20 to 40 government documents, a number of public source
21 documents, and a number of recordings.
22 Now, should the government's motion for
23 substitutions under CIPA 6(c) fail, the government may still
24 object to disclosure of the classified information at issue.
25 And if the government does so, the information may not be
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1 disclosed. But the Court may dismiss the indictment in
2 whole or in part, or find against the United States on any
3 issue as to which the classified information relates or
4 preclude a witness' testimony. That's part of
5 Section 6(c) -- (e) of CIPA.
6 Now, it bears emphasis here that CIPA does not
7 authorize a trial judge to second-guess the government's
8 decision to classify information, nor does it authorize a
9 trial judge to conclude that the information isn't damaging
10 to national security if revealed.
11 The only place a trial judge can make that
12 determination is on a Rule 29 basis after the government's
13 case-in-chief, if the Court finds that the government has
14 not proved that the information is NDI. And that would have
15 to be very specific.
16 In other words, I might find that the Rule 29
17 motion would have to be granted, but I still might not reach
18 that conclusion based on disclosure. In any event, it
19 doesn't matter. That's irrelevant to what I'm considering
20 today.
21 What I do want to point out is that CIPA
22 doesn't authorize trial judges to second-guess the
23 government's decision to classify material or to conclude
24 that the material really isn't damaging to the national
25 security if disclosed.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 The CIPA 6 inquiry, 6(c), is simply to
2 determine whether the proposed substitution affords the
3 defendants substantially the same ability to make a defense
4 as the specific classified information.
5 Now, that's the section -- that's the CIPA
6 process and where we are in it.
7 In addition to that, the government has now
8 proposed a procedure for handling classified material at
9 trial, and it is this proposal that is at issue on the
10 defendants' motion to strike.
11 I think it is fair to say that the government's
12 proposal is novel. No published opinion has been found or
13 cited in which the precise procedure in its scope in this
14 kind of context has been judicially approved or used.
15 Now, simply put, what the government proposes
16 here is that while the jury, the Court, and counsel will,
17 for the most part, have access to the unredacted classified
18 information, the public will not. Instead, the public, in
19 the course of the trial, will see and hear only the
20 substitutions that may have passed through the Section 6(c)
21 process.
22 In other words, in putting to one side the
23 non-insubstantial practical problems inherent in conducting
24 a trial pursuant to this procedure, its use would appear to
25 exclude the public from substantial and critical parts of
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 the trial.
2 Now, this result is evident from a more
3 detailed description of the proposed procedure. The
4 government's proposed procedure is, in effect, a variant and
5 a substantial expansion of the so-called Silent Witness
6 Rule, a rule that has been used and judicially approved in
7 certain, but not all, circumstances.
8 And I'll come to more about that later. I'll
9 just say here that the Fourth Circuit itself in the Zeddle
10 case coined the term, "the Silent Witness Rule," and
11 permitted its use in a limited circumstance.
12 But unlike the procedure used in Zeddle, the
13 procedure proposed in this case would be used for all
14 classified material in both the government's case and the
15 defense case. And also, I don't think the procedure in
16 Zeddle really involved giving the jury something different
17 from the public.
18 As noted, the effect of using the procedure in
19 this case -- and I'll say more about this in a moment --
20 will be the exclusion of the public from substantial and
21 important portions of the trial.
22 Now, the proposed procedure would work as
23 follows. For each classified document discussed at trial,
24 the Court, witness and counsel and the jurors would have the
25 document, classified document, in front of them, either in
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1 paper form or via screens viewable only by those persons.
2 Actually, that would be a little hard in this courtroom, but
3 it may not be this courtroom in which the case is tried.
4 In any event, when a counsel or witness wishes
5 to direct the jury to a classified portion of the document,
6 counsel and the witness would refer to a page number and a
7 paragraph and line numbers, and the Court and opposing
8 counsel and the jury would follow along, but not the public,
9 as it would be unaware of this specific referenced
10 information.
11 And presumably, the witness who's answering the
12 question about the document would not be permitted to refer
13 to the specific language or the information in the document,
14 except by use of location or certain codes.
15 For example, to rebut the government's
16 contention that certain material is NDI, defendants will
17 likely wish to call witnesses to compare various public
18 source documents with the alleged NDI. To do so effectively
19 may well require the witness to refer to specific language
20 or contents of both the public source document and the
21 alleged NDI.
22 Now, the government has anticipated this, and
23 they propose that -- or it proposes that the witness would
24 not speak the names of certain specific countries, foreign
25 persons, or other things, but would instead use a code,
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1 "Country A," "Report X," "Foreign Person Y," "Foreign
2 Person Z" and the like. That code would be provided to
3 counsel, the Court and the jury.
4 The system of codes would change, moreover, to
5 reflect with respect to different alleged overt acts
6 disclosing -- of disclosing classified information
7 presumably to prevent the public from inferring the meaning
8 or discerning the meaning of the code that's being used.
9 For example, if a witness discussing a
10 particular alleged disclosure is instructed to refer to --
11 the first time I wrote this, I wrote in "New Zealand."
12 Somehow or other, over yesterday and last night and today,
13 that has, that has progressed to "Monaco." Obviously, I
14 don't want anyone to draw any inferences from that, except
15 that I do have a yen some day to visit New Zealand, and I've
16 enjoyed a visit to Monaco.
17 So the code -- when a witness discussing a
18 particular alleged disclosure is instructed to refer to
19 Monaco as Country A, a different witness, or maybe even the
20 same witness, discussing another alleged disclosure might
21 use "Country B" or "C" to refer to New Zealand or Monaco.
22 Likewise, when recordings discussing classified
23 information are played, the government proposes that the
24 Court, counsel, the witness and the jury listen on special
25 headphones to the entire recording.
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1 The public, however, would not hear the full
2 recording. Instead, the recorded conversations would be
3 played aloud in the courtroom, but when the recording comes
4 to classified information, the public version would revert
5 to static, which can be done in this courtroom (indicating).
6 Also, the public would have, of course, redacted transcripts
7 available in the record.
8 In sum, the novel and distinctive feature, as I
9 see it, of the government's proposed procedure is that the
10 public is effectively walled off from seeing and hearing
11 everything the jury, the Court, the attorney and the
12 witnesses see and hear. What the public does not see or
13 hear is at the heart of this case, namely the classified
14 material the government claims is the NDI that the
15 defendant's allegedly received and distributed without
16 authorization.
17 Now, a further related novel and distinctive
18 feature of the government's proposal relates to the jury.
19 Although jurors will see and hear classified information, of
20 course they will not have security clearances. Security
21 clearances are very time-consuming and extensive procedures.
22 So far as I'm aware, I have never heard of a jury being
23 cleared for classified material.
24 So it has never been done, to my knowledge or
25 based on my research. And, as I say, the reason for this is
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1 obvious, that it takes a lot of time and efforts to require
2 that. There may be other materials, I don't know if it's
3 constitutional to exclude people because they can't pass
4 security, security tests or investigations.
5 The government's remedy, however, for this
6 anomaly -- that is, to have the jurors hear classified
7 information while not being cleared for it -- is to have
8 them instructed that they cannot disclose to anyone the
9 classified material they will see and hear during trial.
10 Interestingly, there is some authority for
11 that. I found it in Section 6 of the security procedures
12 established by the Chief Justice in 19- -- I don't have the
13 date. I think it was 1980-something. But in any event, it
14 appears -- I'll have the full citation of it in the
15 memorandum opinion that I publish. I'm sure that counsel
16 are aware of it.
17 In any event, that description, I think,
18 furnishes an adequate preface.
19 You don't need to find it. I'm not interested
20 in it right now. We all know it exists. Although I can
21 tell you I was surprised, to some extent, to find it.
22 In any event, the description of the proposal,
23 I think, now gives us a basis for considering the following
24 questions about the procedure that are raised by the
25 government's motion to strike: First, whether the
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1 government's proposed procedure is either explicitly or
2 implicitly authorized by CIPA; and secondly, whether the
3 government's proposed procedure, even if it is authorized by
4 CIPA, nonetheless impermissibly violates the right to a
5 public trail by the defendant by the Sixth Amendment, and to
6 the public by the Fifth Amendment.
7 Notice I said "the public," not "the press."
8 They're just the instruments by which the public gets it.
9 Too often -- I have friends who are journalists who claim it
10 to be their right. It isn't their right. It's our right,
11 every member of the public.
12 In any event, defendants urge first that the
13 government's proposed procedure is nowhere authorized by
14 CIPA, explicitly or implicitly.
15 To answer or to consider whether this
16 conclusion is correct, it's important to focus on CIPA
17 Section 6(c) and 8(b). 6(c), as I already said, 6(c) allows
18 the government to move that in lieu of disclosing classified
19 information, a substitution be used in the form of a summary
20 or a statement of facts.
21 Now, no substitutions can be used, however,
22 under Section 6(c) unless there is a judicial finding that
23 the substitution provides defendants with substantially the
24 same ability to make his defense as would disclosure of the
25 specific classified information.
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1 Consistent with this, CIPA Section 8(b) also
2 permits the introduction and use at trial of redacted
3 versions of classified materials, unless the whole ought, in
4 fairness, be considered.
5 So, I think it is plain that neither 6(c) nor
6 8(b) explicitly authorize or state that substitutions may be
7 made available to the public and the jury on different
8 terms. It seems clear to me to the contrary, that CIPA
9 envisions that substitutions, if not unfair to the
10 defendants, will be used at a public trial for both the jury
11 and the public.
12 Put another way, nothing, I think, in CIPA
13 authorizes, either explicitly or implicitly, closing
14 substantial portions of the trial from public scrutiny. At
15 most, it authorizes use of substitution to avoid disclosure
16 of disclosure of classified information to the public and
17 the jury, provided defendants' right to present a fair
18 defense, a defense, isn't impaired.
19 So simply put, the authority to use
20 substitutions is not the authority to close the trial to the
21 public. While it's true, as reflected in CIPA's legislative
22 history, that Congress has expected trial judges to fashion
23 creative solutions in the interest of justice for classified
24 information problems, there is no evidence that Congress
25 expected this creativity to extend to closure of trials.
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1 Even assuming arguendo -- and I do assume
2 arguendo -- that CIPA allows -- a provision allowing
3 substitutions might be stretched to encompass the
4 government's proposed procedure, there is no doubt -- and
5 I'll come to this in a moment -- there has been an approval,
6 a judicial approval, of the Silent Witness Rule, indeed, in
7 the Fourth Circuit. I'll come to that.
8 But even assuming that CIPA is stretched to fit
9 what is proposed here, there's no doubt that the procedure
10 here would not past muster under CIPA's fairness
11 requirements. Whereas here, a central issue in the case is
12 whether the government's alleged NDI is indeed NDI, and
13 the -- and where the proposed procedure would amount to a
14 wholesale use of the Silent Witness Rule to cover all of
15 this alleged NDI, it cannot be said that the procedure
16 affords defendants substantially the same ability to make
17 their case as would disclosure of the specific classified
18 information.
19 A few examples, I think, help vividly
20 illustrate this. It's difficult to get too precise without
21 disclosing, but I think that some of these examples are
22 helpful.
23 As noted, the government has to prove beyond a
24 reasonable doubt that the alleged NDI is indeed NDI. The
25 government also has to prove beyond a reasonable doubt that
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1 the defendants' mens rea. To this end, the government will
2 likely invite witnesses to compare the substance of certain
3 of defendants' e-mails, telephone conservations or faxes
4 with certain alleged NDI, to show that the defendants had
5 obtained NDI and were disseminating it without
6 authorization.
7 Defendants may, of course, may wish to show
8 that lack of similarity between the alleged NDI and what
9 they obtained and plainly, they would be significantly
10 hobbled in doing so by the use of the government's proposed
11 procedure. The silent comparison of paragraphs and
12 sentences, even where supplement by codes, would effectively
13 preclude defense counsel from driving home important points
14 to the jury.
15 It's also apparent that the defendants plan, at
16 trial, to attempt to rebut the government's claim that
17 certain material is NDI by having witnesses compare the
18 alleged NDI to public source material. Once again, the
19 proposed procedure would unfairly impact defendants' ability
20 to establish this defense.
21 The Silent Witness Rule in this context
22 essentially robs defendant of a chance to make vivid and
23 drive home to the jury their view that the alleged NDI is no
24 such thing, as essentially similar material was abundant in
25 the public domain essentially contemporaneously, and that
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1 any differences between the public source material and the
2 alleged NDI are minor or trivial.
3 It is hard for me to see how this can be done
4 in any effective way to the jury without being able to point
5 to and to argue about specific substantive things.
6 Now, suppose the government, let's say, for
7 example, would call as a witness the coconspirator, the
8 alleged coconspirator, and he testifies that the defendants
9 solicited him to provide particular information about
10 American policy towards Country A, which I previously said
11 was either New Zealand or Monaco, but of course it may not
12 be.
13 Suppose the government then calls an expert who
14 testifies that the information the defendants solicited was
15 NDI, namely that the information, among other things, was
16 closely held by the government and would damage national
17 security if disclosed.
18 Now, on cross-examination, surely the defense
19 counsel would want to compare the alleged NDI to the
20 contemporaneously available sources in the public domain.
21 And in this event, let's say a news article is
22 used directing the jurors and the witness' attention to
23 information in the article. It seems fairly antiseptic
24 simply to say, "Well, how about sentence number four; isn't
25 that essentially the same as sentence three on this?"
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1 And then the witness says, "Well, no.
2 Country A isn't mentioned. Instead it's Country C."
3 Country A and Country C may be adjoining, and
4 it may be the same sort of thing. It's very hard to convey
5 that, I think, by this process.
6 I'm not so sure that it wouldn't be so possible
7 to do if this were just one occasion, one piece of NDI or
8 one witness. But when it is the heart of the case that
9 spreads across the entire case, I'm persuaded it cannot be
10 done effectively.
11 It seems clear that questions attempting to
12 probe the similarity of putatively classified information to
13 public domain information would require questions and
14 answers in open court about the details of the substance of
15 the relevant public source documents and the alleged NDI.
16 You have such questions and answers of precisely what would
17 be foreclosed by proposed procedure. At most, coded
18 references would have to be used.
19 But if the differences between the alleged NDI
20 and the public domain information is particularly elusive or
21 difficult to describe in abstract terms, it would be
22 impossible for defense counsel to demonstrate effectively,
23 via the Silent Witness Rule or argument, that any
24 differences between the alleged NDI and the public domain
25 information do not support NDI status for the material
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1 information.
2 So the code and the unspoken comparisons, I
3 think, would -- might well gloss over precisely the
4 similarities and the insignificance of differences in
5 government held information and public domain information
6 that may be crucial to the defendants' position.
7 So, in short, the use of -- the expansive use
8 of the Silent Witness Rule and codes would render virtually
9 impossible an effective line of cross-examination that might
10 be vital to the defense.
11 Now, I don't address here whether an impaired
12 cross-examination would rise to the level of a confrontation
13 clause violation. That's a more difficult question and is
14 more difficult to assess without even more detail. But I
15 did not find it necessary to reach or to address that
16 question.
17 Now, quite apart from the difficulties in
18 compound -- or the difficulties that I described,
19 compounding those difficulties is that the proposed
20 procedures would make it virtually impossible to
21 cross-examine on why the putative NDI, if disclosed, would
22 be damaging to the national security. It would be very,
23 very difficult to cross-examine on that.
24 I think it is not plausible to suggest that
25 defense counsel could effectively cross-examine witnesses
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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26
1 about whether information is potentially damaging to the
2 national security by use of coded euphemisms like "the
3 redacted policy assessment" or "the fact on page 10 about
4 Country A's activity, and Country B really does."
5 It's at the point that I began reflecting on
6 that, it occurred to me whether this might rise to a
7 Confrontation Clause violation. But as I said, I don't have
8 to reach it.
9 Now, another defect, fatal in my view, in the
10 fairness of the proposed procedure, is apparent from the way
11 it would hamper defendants should they choose to testify in
12 their own defense.
13 Again, it's clear, they would be unfairly
14 hindered in their effort to explain why they believed
15 information that they sought to obtain, and the information
16 they received and disseminated, was not NDI. They should be
17 able to explain precisely what they knew, when, from whom
18 they learned it, why they didn't have the requisite mens
19 rea, which I have discussed in several of the opinions that
20 I have already written.
21 Statements like, "I heard from Foreign Person C
22 the fact about Country X, reflected at Exhibit A, page
23 three, paragraph four, line two," seem to me to be
24 insufficient for fairness.
25 But that would be what essentially they would
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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27
1 have to say: "I heard from Foreign Person C the fact about
2 Country A reflected at Exhibit A, page three, line --
3 paragraph four, line two, except for the last clause. And
4 so when I asked X or B for confirmation of that effect, I
5 thought I was asking for a matter of public record."
6 It's very difficult to do. That's certainly
7 important testimony. It provides an exculpatory explanation
8 concerning the defendant's state of mind and the kinds of
9 codes and -- that would be used.
10 It's conceivable, of course, that a jury might
11 follow it, but it would be difficult, if not impossible, for
12 the defendants to drive home the important points they are
13 entitled to by using this procedure.
14 I don't see how they could explain why they
15 believed the information they sought or had was in the
16 public domain without revealing details about the
17 information, the identity and reliability of the persons
18 from whom they received it, and the like.
19 In short, I think the proposed procedure
20 shackles defendants in a way that cannot pass muster under
21 CIPA.
22 Finally, I think it also is important to note
23 that the government's proposed frequently-changing system of
24 code references not only invites jury confusion, I think it
25 virtually guarantees it. And indeed, other cases have noted
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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28
1 this potential, including Fernandez.
2 Given the sheer number of substitutions of
3 proliferation of coded phrases varying from witness to
4 witness and overt act and overt act, the likelihood of
5 judicial -- juror confusion -- I was about to say "judicial
6 confusion," but I don't want to exclude that, either.
7 (Laughter)
8 THE COURT: It's just less important than juror
9 confusion. I think judicial confusion is generally
10 presumed.
11 (Laughter)
12 THE COURT: In any event, I think the
13 likelihood of juror confusion would be a sufficient ground
14 by itself for rejecting the wholesale proposed Silent
15 Witness Rule use under Section 6(c) of CIPA.
16 I also want to point to out that I think the
17 bifurcation of the jury and the public, that is, the jury
18 and the parties and the Court having one version and the
19 public having another, and the jury then being instructed,
20 "You may not discuss this material," putting to one side how
21 effective such a disclosure or such an instruction might or
22 might not be, I find that it is difficult not to see that
23 such an instruction to the jury might have the unintended,
24 unwarranted effect of suggesting to the jury that the
25 material really does have to be protected, and therefore is,
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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29
1 indeed, NDI. That's part of the jury confusion. That, I
2 think, is unfair and inappropriate.
3 In a normal CIPA case, where the jury and the
4 public hear everything, there isn't that problem. The jury
5 can then talk about it freely afterwards, as juries
6 typically do -- although I instruct most of my juries that
7 they ought not to disclose to the public, generally, what
8 went on in the course of deliberations. That's up to them,
9 I say, "but I suggest it to you only because I think you
10 have a duty of confidentiality to your fellow jurors as to
11 what went on in the course of deliberations. If jurors knew
12 in advance that everything they said and did in
13 deliberations was going to be grist for the media mill, it
14 might have a chilling effect."
15 But that's a matter for them to discuss. I
16 don't instruct them not to do it. I instruct them to think
17 about the issue and make up their owns minds about it. We
18 have only to turn on the television to see that jurors don't
19 usually don't pay much attention to those instructions.
20 Now, there is a paucity of reported cases on
21 the propriety of using the Silent Witness Rule under CIPA.
22 The rule has been infrequently proposed and even more
23 infrequently employed.
24 Some of the cases have approved its use -- the
25 Zeddle case is an important example -- while others have
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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30
1 rejected it. The Fernandez case rejected it there, and in
2 the District of Columbia, the North case rejected the rule.
3 Significantly, the rule's use has never been
4 judicially approved for use in a case where, as here, the
5 volume of classified information to which the rule would
6 apply is large, where the central contested issue is whether
7 that specific portions of that volume of information is NDI
8 and whether the defendants knew it was NDI, or had the
9 requisite mens rea, and where the effective result of the
10 use of the rule excludes the public from the heart of the
11 case.
12 The two most apposite decisions have rejected
13 the procedure on the ground that it would unfairly hinder
14 the defense case. I mentioned those already. Those would
15 be the Fernandez case and the North case.
16 Now, the government protests that the amount of
17 information subject to the Silent Witness Rule, or any other
18 substitution, should not be decisive.
19 In the abstract, I think this is a correct
20 proposition. The amount of information subject to the
21 Silent Witness Rule is not, by itself, determinative.
22 However, if appropriate substitutions provide
23 defendants with -- do not provide defendants with
24 substantially the same ability to make their defense as
25 classified documents, then it doesn't matter whether the
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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31
1 substitutions are few or numerous.
2 It's also true, however, that the quantity of
3 information subject to the Silent Witness Rule does properly
4 inform the CIPA analysis, particularly with respect to
5 administratability and confusion, and also with respect to
6 whether the defense can fairly make its case.
7 In practice, the greater the amount of
8 information and documents subject to the Silent Witness
9 Rule, and more codes involved, then the greater -- and the
10 greater the likelihood of confusion, the more unwieldy the
11 rule becomes, and the more careful a trial judge has to be
12 to insure that a defendant's right to present a defense is
13 not impaired.
14 In the end, the most important consideration is
15 whether the procedure impairs the defendants from
16 effectively presenting their defense. The government's
17 proposed procedure, in my view, impermissibly does so.
18 Now, I have reached the conclusion that the
19 procedure does not comport with CIPA in this case for the
20 reasons I've stated.
21 But the defendants challenged the government's
22 proposed procedure as unconstitutional. They do so on
23 constitutional, as well as statutory, grounds. They argue
24 that even if CIPA's language stretched to cover the
25 government's proposed procedure, that procedure nonetheless
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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32
1 fails as a violation of the defendants' Sixth Amendment
2 right to a public trial, and the government's First
3 Amendment right to a trial open to public scrutiny. This
4 follows, defendants argue, because the proposed procedure
5 does effectively exclude the public from essential portions
6 of the trial.
7 Now, in this regard, I think it is worth noting
8 that the government sensibly appears to have abandoned its
9 original position that the proposed use of the Silent
10 Witness Rule, coded testimony and redacted recordings does
11 not close the trial, because the public would be present
12 physically in the courtroom.
13 Of course, this argument, if credited, leads to
14 the absurd result that a trial unintelligible to the public
15 is still open to the public, simply because the public is
16 physical present to see and hear evidence and witnesses they
17 can't understand.
18 So, I think the quantity and quality of the
19 material the government proposes to exclude from public view
20 is plainly significant. Seven of the nine alleged
21 disclosures of NDI would be partially closed to the public,
22 as would recordings and documents corresponding to this NDI.
23 Notably, the government's proposed procedure treats even
24 certain selected public domain documents, including news
25 reports, as if they were classified documents.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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33
1 Because a crucial issue in this case is whether
2 the information is NDI, whether defendants knew it was NDI,
3 the government's proposal would serve to preclude the public
4 from seeing and hearing and evaluating evidence on these
5 most crucial elements. So, in my view, the government's
6 proposal is equivalent to sealing essential aspects of this
7 case.
8 Now, the analysis of the defendants'
9 constitutional argument should properly begin with the
10 recognition that the defendants and the public do have a
11 fundamental right to a trial open to the public.
12 The right to a public trial contributes to just
13 adjudication, stimulates public confidence in the judicial
14 system, and insures that the public is fairly apprised of
15 the proceedings in cases of public concern.
16 The only place I differ about public trials is
17 I do not favor cameras. But I certainly favor the public.
18 Now, in any event, that isn't an issue here.
19 A public trial contributes also to deterring.
20 It requires -- well, it requires witnesses' testimony to be
21 public, so it deters perjury. It requires a judge's rulings
22 to be made in public, as today, so it deters partiality and
23 bias. And by requiring prosecutors to present their charges
24 and evidence publicly, it deters vindictiveness and abuse of
25 power.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 So, in these ways, the presence of the public
2 encourages accurate fact-finding and wise use of judicial
3 and prosecutorial discretion, and also fair use of those
4 powers, and it contributes to public confidence that justice
5 has prevailed at trial. It's always true that justice must
6 not only be done, it must be seen to be done.
7 The denial of a public trial is a structural
8 error, in the Court's view, not subject to harmless error
9 analysis, as Bell reflects.
10 Now, given the important interests at stake,
11 it's, of course, understandable that it's now well-settled
12 that the defendants' right, defendant in a criminal trial
13 right to a public trial, and the public's right to open
14 trials, is established, well-established, in the Press
15 Enterprises case for the public's First Amendment right, and
16 then the Wallard case for the defendants' Sixth Amendment
17 right.
18 And it's also well-settled that the standard
19 governing whether the public trial right has been infringed
20 is the same; whether the right is the Sixth Amendment right
21 or the First Amendment right, it's the same test. It's also
22 true, I think, that the burden is significant on those
23 advocating closure.
24 The test is one, first, from Press Enterprises
25 and its progeny, that an overriding interest must exist to
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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35
1 close the trial; second, that closure be no broader than
2 necessary to protect that interest; third, that the Court
3 consider reasonable alternatives to closure; and, fourth,
4 that the Court makes specific findings on the record
5 concerning the existence of the overriding interest, the
6 breadth of the closure, and the unavailability of
7 alternatives to facilitate appellate review.
8 Decisions to close trials, of course, must be
9 made on a case-by-case basis, with careful attention to the
10 facts and the circumstances of each case. And the
11 government bears a weighty burden to establish that closure
12 is permissible, as the Press Enterprises opinion reflects.
13 And, of course, before trials may be closed,
14 there should be a hearing about it, which this was to have
15 been. Each of the Press Enterprises elements may be
16 separately considered.
17 The first is the most challenging here. The
18 government argues that its interest in protecting classified
19 information is a compelling and overriding one, and it's
20 cited numerous cases so stating, because it says this is
21 classified information.
22 Normally, this assertion would suffice, and the
23 analysis would then focus on the other Press Enterprises
24 factors. Yet here, I'm compelled to note that the assertion
25 of an overriding interest is somewhat undermined by the
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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36
1 substance of the proposal offered by the government.
2 The government's proposal reflects that the
3 classified information at issue is not so deserving of
4 rigorous protection, since the government is willing to
5 disclose that information to twelve or more uncleared
6 individuals, that is, jurors plus alternates, with only a
7 instruction that they not disclose the information.
8 The government urges that the instruction
9 against disclosure would be sufficient. But such an
10 instruction, I think, would be nearly unworkable here. An
11 instruction that the jurors must treat the information they
12 received as closely-held is, of course, not easily
13 reconciled with the instruction that the jury is the sole
14 judge of the facts of the case, and that they alone
15 determine whether information at issue is NDI, that is,
16 whether it's closely-held and potentially damaging.
17 In other words, here I am telling the jury,
18 "You cannot disclose this information," and then I tell
19 them, "but you decide whether this information is deserving
20 of that kind of protection."
21 Is it completely contradictory?
22 No. I think that it has some basis for being
23 understood logically, but it isn't easy. It isn't easy.
24 And I think the average juror would be quite confused about
25 that.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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37
1 I say that on the basis of 20 years of trying
2 jury cases in this court and a previous number of years of
3 trying them as a lawyer. Since I lost so many cases, I
4 would be more inclined to say that jurors most often don't
5 understand a case.
6 (Laughter)
7 THE COURT: Moreover, while protecting
8 classified or national defense information has been
9 appropriately recognized as a compelling interest justifying
10 some kinds of closures, the government in this case hasn't,
11 of course, adequately supported it by affidavits and the
12 like. It's just a broad, conclusory fashion.
13 Now, the government has told me, "Look, we'll
14 give you the affidavits in the Section 6(c) process," and of
15 course I will examine them there. But what is needed is an
16 affidavit for each particular piece of NDI, not some
17 blanket -- not some blanket assertion of the privilege.
18 It is true that classification decisions are
19 for the Executive Branch, and the information's classified
20 status must inform an assessment of the government's
21 asserted interest under Press Enterprises.
22 But ultimately, trial judges must make their
23 own judgment about whether the government's asserted
24 interest in partially closing the trial is compelling or
25 overriding. So that requires the Court to look at it.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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38
1 Now, the government has said that it will
2 supply affidavits, presumably on Thursday. But I've
3 reviewed this matter, and while I respect and defer to the
4 Executive Branch's decision to classify certain information,
5 that does not control the Press Enterprises analysis. I
6 must still make a determination.
7 There are lots of subtleties. In many
8 instances, the government says, "Look, we concede that this
9 information might be this -- might be seen here or there,"
10 but whether the government actually considered it to be true
11 at that point in time, that's what made the NDI. I
12 understand that. But that doesn't warrant, I think, closing
13 substantial portions of the trial.
14 I don't think this proposal is narrowly
15 tailored as Press would require, Press Enterprises would
16 require.
17 Also, there are alternatives. The alternative,
18 obviously, is Section 6(c), the normal Section 6(c) process,
19 by which the Court will consider specific substitutions in a
20 specific context, and consider whether that specific
21 substitution meets the fairness requirement of CIPA. And if
22 it does, then that ought to be shown to the public, as well
23 as to the parties in court.
24 The Court is required to make findings. But I
25 don't need to make findings here, because I've reached the
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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39
1 conclusion that this procedure does not warrant -- does not
2 pass muster under the statute and does not warrant, under
3 the Constitution, closing the trial as the procedure would
4 require.
5 Now, let met make a few other comments.
6 I said that there was authority on the Silent
7 Witness, use of the Silent Witness Rule, and I want to make
8 clear how I think this procedure differs from those in which
9 it's been approved.
10 For example, in the Peltic (phonetics) case,
11 there was five minutes of closure from public view. That
12 was coupled with a disclosure of all the evidence necessary
13 for public scrutiny in the original brief.
14 The Marzook case, on which the government
15 heavily relies, in the Northern District of Illinois, that
16 case reflects that there was a partial closure of a combined
17 pretrial CIPA and suppression hearing, not a trial. At the
18 Marzook trial, the evidence was disclosed in its entirely to
19 the public. The limited closure protected only the identity
20 of two witnesses, or principally the identity of two
21 witnesses.
22 And the Marzook Court applied a standard that
23 was squarely inconsistent with the law here in the Fourth
24 Circuit. While the Marzook Court was correct in concluding
25 that it must apply the Press Enterprises analysis, it found,
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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40
1 in my view mistakenly, that the government rebutted the
2 presumption of openness by showing merely that the hearing
3 testimony was classified and governed by CIPA.
4 The Fourth Circuit has rejected that argument,
5 that is, that the courts defer entirely to the Executive
6 Branch decisions for applying Press Enterprises for trial
7 proceedings. And that's what I just mentioned a moment ago.
8 In CIPA, I don't second-guess the government on
9 classification. But on Press Enterprises, I still have to
10 evaluate it.
11 Now, in my view, I give significant deference
12 to the government's decision to classify information under
13 Press Enterprises, as well. But I have to still look at it
14 and make an assessment.
15 The assessment doesn't involve my undertaking
16 some prolonged examination of witnesses and experts about
17 whether it was properly classified. But it does involve
18 looking at all the facts and circumstances of this case,
19 which I have done. And I think the asserted overriding
20 interest is undermined significantly. It's less than it is,
21 than it would ordinarily would be.
22 In any event, there was also the -- that, by
23 the way, was the Washington Post Company case in the Fourth
24 Circuit. So I don't find Marzook to be particularly
25 persuasive, for reasons that I may elucidate in the
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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41
1 memorandum opinion.
2 Let me also mention that in the ruling that I
3 reached today, and that I will issue, I am not saying that
4 the Silent Witness Rule can never be used in the CIPA
5 process. That's not what I have held. I am saying that the
6 Silent Witness Rule, with all of its trappings as proposed
7 by the government in the context of this case, to be used as
8 they say, is not warranted or authorized.
9 I'm saying that there's nothing in CIPA that
10 says that a jury can be told something different from the
11 public. And I'm saying that the defendants' right to
12 present -- the defendants' right to present their case is
13 hobbled significantly by the use, the wholesale use of the
14 Silent Witness Rule across the board in the central and
15 centrally important parts of this case.
16 Now, the government has suggested that I
17 shouldn't reach this ruling until after I go through the
18 Section 6(c) process.
19 I don't agree. I think this is the right time
20 and place to make this ruling.
21 Now, it is incumbent on the Court to proceed to
22 the Section 6(c) process and to consider specific
23 substitutions and to consider and make findings about those
24 specific substitutions, if the government wishes to offer
25 them.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
.
42
1 Now, does that mean that nothing I've said
2 today is likely to be heard again on Thursday?
3 I don't know. We'll see. I've looked at some
4 of them already. But what I'm going to be doing is looking
5 at these substitutions as if they are to be shown to the
6 public, as well as to the witnesses and counsel.
7 Now, to some extent, I'm prepared -- I'm not
8 prepared. But I am -- I'm unhappy, but I may hear that the
9 government hasn't yet proposed the substitutions that they
10 want to propose under Section 6(c) for purposes of showing
11 it to the public, as well as to the jury.
12 By saying I'm not prepared, what I meant to
13 say -- what I mean to convey is, I would have hoped that the
14 government would have done that. I'm not sure they have.
15 We shall hear. But I certainly intended that I would view
16 this separately from it.
17 Now, if I rule adversely to the government in
18 the Section 6(c) process, of course, the government has the
19 right under Section 7 of CIPA to take an interlocutory
20 appeal. Whether or not the ruling I made on this process
21 can be part of that, is not for me to determine.
22 But -- in fact, there are lots of rulings I've
23 made in this case that I would love to see reviewed and
24 passed upon.
25 Mr. Lowell and Mr. Nassikas would like very
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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43
1 much to have the motion to dismiss ruling reviewed on
2 appeal. It's not up to me whether that can be done. I'm
3 perfectly happy to have it done.
4 But my principal goal at his time is to
5 continue to do what the law requires me to do, and to have
6 this case, if it can be fairly done, tried as soon as
7 possible, beginning on June 4th.
8 So, I intend to proceed. And there are other
9 issues that I'll address in the memorandum opinion like the
10 arguments the parties have made about the instruction and
11 the like, the instructions to the jury.
12 But what I intend to do now is that we will
13 have a hearing, and it will be closed, at 2:00 o'clock on
14 Thursday, at which time -- unless, Mr. Reilly, you rise to
15 tell me that the record isn't in a posture to do that at
16 this time.
17 But what I would envision doing on Thursday is
18 looking at specific substitutions that the government
19 proposes to use in lieu of disclosure of classified
20 information, and to consider whether those disclosures,
21 those substitutions that would be disclosed to the jury and
22 to the public, would unfairly hamper or hobble the
23 defendants' presentation of their defense.
24 Now, I don't foreclose at all in this
25 Section 6(c) hearing that there might be isolated instances
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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44
1 where a version of the Silent Witness Rule might work. I
2 don't know. I'll look at it in the specific context.
3 But what I am satisfied in is that the
4 wholesale use of it as proposed by the government, across
5 the board on these crucial issues effectively closes
6 portions of this trial, fails Constitutional -- to pass
7 Constitutional muster, or fairness muster under CIPA, as
8 well.
9 And I'll enter an order accordingly.
10 I've already entered orders denying the amicus
11 briefs. They wouldn't have helped.
12 All right. Mr. Reilly, do I anticipate that we
13 may have trouble proceeding on Thursday?
14 ATTORNEY REILLY: You anticipate correctly,
15 your Honor.
16 THE COURT: That's what I was afraid of.
17 How soon can you prepare the proposed
18 substitutions?
19 ATTORNEY REILLY: I would request a moment to
20 confer with my colleagues.
21 THE COURT: Well, I'll take a recess and let
22 you do it, and then confer with Mr. Nassikas and Mr. Lowell.
23 And I will be happy to have your collective views on how we
24 should proceed. I knew that you were counting on this
25 procedure to solve a lot of your problems.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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45
1 I'm not unmindful that you have these problems.
2 And I don't -- I haven't said this, but I will say it: I
3 think the proposal, while I have found that it doesn't pass
4 muster, I do find it to be fairly imaginative and creative.
5 So, I can understand, and I think it was reasonable for the
6 government to hope that this would solve the problem that
7 they have.
8 The government's problem is not an
9 insubstantial one. It has this problem any time it has
10 classified information that it seeks to use in a
11 prosecution.
12 And so, you thought this might solve this
13 problem. I needed to answer that question and tell you, not
14 as far as I am concerned.
15 But I still need to go ahead with the 6(c)
16 process. So I want you all to caucus now and tell me how we
17 can move this matter along quickly, so that either the
18 government can take its appeal, and maybe the defense,
19 too -- although they don't have a right to an interlocutory
20 appeal. But you're imaginative people. But on the other
21 hand, you may want to get this thing tried.
22 It is important that we get it tried as soon as
23 possible, or not tried.
24 If it's to be tried -- what is it, from
25 Macbeth? "If it were done, 'tis well it were done quickly"?
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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46
1 That's true here, too.
2 All right. I thank counsel. We'll reconvene
3 at quarter to 4:00. That will give you a half an hour.
4 That should give you enough time.
5 I thank counsel on the amicus, but I assure
6 you, I didn't need your help.
7 (Laughter)
8 THE COURT: You can try it again at the Court
9 of Appeals.
10 Court stands in recess.
11 (Court recessed at 3:15 p.m.)
12 (Court called to order at 4:00 p.m.)
13 FURTHER PROCEEDINGS
14 THE COURT: All right. Have counsel conferred
15 on -- first of all, let me ask this question: Is there a
16 consensus among counsel that it would be futile to have a
17 Section (c), 6(c) hearing Thursday at 2:00 o'clock, as is
18 currently scheduled?
19 ATTORNEY REILLY: I don't know that there's a
20 consensus. What I can say from the government's point of
21 view is, I can't tell you yet, because we need time to
22 review the Court's order before we can tell you whether
23 Thursday is worthwhile going forward or not.
24 THE COURT: The Court's order that I gave
25 today?
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 ATTORNEY REILLY: That you ruled from the bench
2 today.
3 We don't --
4 THE COURT: Well, the order will be simple. It
5 will say: The motion to strike is granted.
6 That won't tell you very much.
7 ATTORNEY REILLY: The written memorandum -- if
8 there is a written memorandum supporting the order.
9 THE COURT: There is -- or there will be. But
10 you can get a transcript from the court reporter sooner than
11 you're going to get a memorandum from me. I've just written
12 it. It now needs to be polished, and I'm not available to
13 do it.
14 ATTORNEY REILLY: We will need to review that
15 with the Department of Justice, the U.S. Attorney's Office,
16 and the Intelligence Agency victims, to determine what our
17 next course of action is.
18 THE COURT: Well, I don't think it's that
19 complicated --
20 ATTORNEY LOWELL: Can I strike --
21 THE COURT: -- Mr. Reilly.
22 ATTORNEY LOWELL: -- the word, "victims"?
23 THE COURT: Let me, let me -- I don't think
24 it's that difficult. What I've said is that you can't use
25 this procedure. You can use, or try to use, what Section
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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48
1 6(c) explicitly states.
2 ATTORNEY REILLY: We respectfully disagree with
3 the Court on its analysis of the government's proposal --
4 THE COURT: Fine.
5 ATTORNEY REILLY: -- of 6(c).
6 THE COURT: That's why there are Courts of
7 Appeal.
8 ATTORNEY REILLY: We have to review what our
9 options are now --
10 THE COURT: Like they respectfully disagree
11 with you and with me on my motion to dismiss resolution.
12 ATTORNEY REILLY: The government has several
13 options under CIPA on how to proceed, and those options are
14 considered by --
15 THE COURT: What are they, other than
16 Section 6(c)?
17 You've got the summary or you've got a
18 statement of facts.
19 ATTORNEY REILLY: We could go forward on the
20 proposal as it is, and have the Court reject it at the 6(c)
21 hearing, rather than at this general hearing, specific to
22 each proposed substitution.
23 We could go back to our --
24 THE COURT: But I would have to look at each
25 substitution, look at the substitution. I would then think
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1 about it in terms of whether that, by itself, being given to
2 the public and to the jury, would, would pass muster under
3 the fairness requirements of CIPA.
4 ATTORNEY REILLY: That's where we respectfully
5 disagree with the Court. We would not propose that. Our
6 proposal under 6(c) would be the bifurcated -- as the Court
7 has said, bifurcated procedure that we propose. And the
8 Court would have to reject that.
9 THE COURT: I already have.
10 ATTORNEY REILLY: That's what we need to
11 analyze, whether we want to go forward and --
12 THE COURT: I have definitely rejected that,
13 because that closes the trial. Plus, it makes it unfair to
14 these defendants to pursue, on a wholesale basis, their
15 defense.
16 Now, if you want to protect one or two
17 informants, or a specific means and method in some way that
18 I can understand, I will be willing to think about that.
19 But I have to make specific findings under
20 Section 6(c), and I haven't been faced with any
21 substitutions to do that.
22 ATTORNEY REILLY: We believe that we have
23 proposed substitutions to the Court.
24 THE COURT: Where are they?
25 ATTORNEY REILLY: They are in our 6(c)
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1 proposal, wherein the --
2 THE COURT: All right.
3 ATTORNEY REILLY: -- substitutions --
4 THE COURT: I'll look at each of those at
5 Thursday at 2:00 o'clock, and I'll consider whether giving
6 those to the public and to the jury, whether that forecloses
7 fair -- a fairness to the defendant.
8 ATTORNEY REILLY: If I may, your Honor, when I
9 say "substitutions," it's the government's position that the
10 substitution includes the use of the Silent Witness Rule.
11 That's part and parcel of the substitution.
12 THE COURT: Well, I have to look at each
13 substitution and make that determination.
14 ATTORNEY REILLY: That's correct.
15 THE COURT: And I have not done that. I have
16 simply told you that en masse, across the board, you can't
17 do it. It closes the trial. It's unconstitutional. It's
18 unfair to the defendants.
19 Now, I have to look at each substitution under
20 Section 6(c). Are you prepared to do that?
21 ATTORNEY REILLY: I -- the government submitted
22 the proposals with the expectation that the substitutions
23 included both the Silent Witness Rule and the substitution
24 as proposed for the public.
25 We are not prepared to go forward just with the
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1 substitutions, the handwritten substitutions, for the
2 public, unless it includes the application of the Silent
3 Witness Rule to the underlying information.
4 That being said, I would submit to the Court
5 that the government needs time until Thursday to come back
6 to the Court, to advise the Court on what course of action
7 we are going to take.
8 THE COURT: All right.
9 Mr. Lowell, Mr. Nassikas, what's your view?
10 ATTORNEY LOWELL: A couple of points, your
11 Honor.
12 I think I understand Mr. Reilly is saying that
13 they understand that if the Court were to rule on the
14 proposal as it stands now, as what they would show the jury
15 as well as the public, that they understand that, number
16 one, that might not carry their burden of proof --
17 (Simultaneous discussion)
18 THE COURT: It might not.
19 ATTORNEY LOWELL: -- and not --
20 THE COURT: I might have to look at each, and I
21 would have to make the same kind of determination.
22 ATTORNEY LOWELL: And not only not carry the
23 burden of proof, given how much they have taken away from
24 the case, as what would be on that side of the bar, it might
25 not end up being, under the standards of CIPA, giving the
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1 defendants their right to their fair defense.
2 And therefore, what I understand them saying
3 is, if there's a mechanism by which they can stand fast to
4 what they've just proposed, and end up that being without a
5 line-by-line as the 6(c) order, they want to consider that,
6 because they may then decide that that's appealable.
7 At least I understand that that's what they're
8 saying. I don't know that I agree, but I understand it.
9 What we say in response is --
10 (Simultaneous discussion)
11 THE COURT: Well, I'm --
12 ATTORNEY LOWELL: -- they should have had --
13 THE COURT: -- I'm not going to be moved by
14 either your or Mr. Reilly's view. I have to make a 6(c)
15 determination.
16 ATTORNEY LOWELL: We are with you on that.
17 THE COURT: And if Mr. Reilly says, "You've
18 already done it," and I don't agree with it, I rule on that.
19 ATTORNEY LOWELL: No, no. I understand.
20 I'm just trying to understand what Mr. Reilly
21 is saying, your Honor, because I hadn't heard --
22 (Simultaneous discussion).
23 THE COURT: I think --
24 ATTORNEY LOWELL: -- him say --
25 THE COURT: -- waiting until Thursday, so that
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1 he can get his ducks in a row, is not unreasonable.
2 ATTORNEY LOWELL: No.
3 What we were going to propose is, if what
4 they're saying is that they need until Thursday to talk to
5 us and you further, to determine that this is where they
6 want to stand fast, we think Thursday can convert into a
7 status hearing for that purpose.
8 But we're not understanding if that is
9 something they've decided before Thursday, what the schedule
10 for the actual substitutions will be.
11 THE COURT: Suppose, Mr. Lowell, that the
12 substitutions that are currently in the Section 6(c) file --
13 All right? -- suppose those are shown -- are for public
14 consumption, for the public and the jury.
15 Would you then take the position that all of
16 those, even if they're shown to the public as such, or any
17 of them, are not adequate under 6(c)?
18 ATTORNEY LOWELL: That's exactly the position
19 that we would take.
20 THE COURT: Well, wouldn't I have to hear oral
21 argument on that, and make specific findings about each one
22 of them?
23 ATTORNEY LOWELL: You did. And in our
24 submission that we have filed, we have begun that process by
25 informing the Court of our view on that. It's the one
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1 that's under seal.
2 THE COURT: Right.
3 ATTORNEY LOWELL: We have definitely agreed
4 that we need to do that.
5 THE COURT: Well, then, this is useful.
6 Because I think, Mr. Reilly, to the extent that
7 you take the ruling I just made to be a Section 6(c) ruling,
8 it certainly is a ruling that Section 6(c) won't let you do
9 it wholesale, but it isn't a ruling that is contemplated by
10 6(c), because I still have to make the further ruling.
11 Now, that doesn't mean that what I've ruled
12 today won't hang like a rain cloud under your other Section
13 6(c) contentions. But I have to take each one of those and
14 say, "Okay. Now this is going to be shown to the jury, to
15 the public, to anyone."
16 And then I have to say, "Mr. Lowell, does this
17 preclude you from fairly doing what you wanted to do? And
18 if it does, tell me how."
19 And then you get to say, "No, it doesn't
20 unfairly preclude them, because they can do it" -- this,
21 this and this.
22 And to the extent that the Silent -- you want
23 the Silent Witness Rule used occasionally on those, or maybe
24 on all of them, I guess I would consider it again and say
25 no, if it's no. Maybe I might, on one of them, say "Yes."
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1 But I'm certainly not going to approve it across the board,
2 as I just did -- I just didn't approve it.
3 So, I envision -- and you'll have to correct
4 me, Mr. Reilly, on Thursday -- I envision that we would take
5 each of these substitutions and go through them again.
6 I think the battle is already lost in terms of
7 closing the trial as to those. The question then becomes --
8 now, I would have to consider it again individually for the
9 Silent Witness Rule on individual ones, but the wholesale
10 use is gone.
11 So now what I do is take each of the
12 substitutions, Mr. Lowell, Mr. Nassikas would tell me why
13 they think it doesn't meet the fairness requirements
14 individually, with each one, and I would make findings.
15 And then -- and you would point out with
16 respect to each one whether you intended to use the Silent
17 Witness Rule, or would like to use the Silent Witness Rule
18 for that one, or not.
19 And we shall see. And I might make findings
20 and say, "Well, I might allow the Silent Witness use for
21 this one, but I wouldn't for this one, this one, this one,
22 and this one."
23 ATTORNEY REILLY: I don't believe we're going
24 to be able to do that on Thursday.
25 THE COURT: Well, what we can do on Thursday is
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1 we can be clear -- because I'm pretty sure I'm right about
2 my responsibility and the necessity for me to do that. But
3 at least we can be prepared on Thursday, you and
4 Mr. Nassikas and Mr. Lowell can tell me whether I'm wrong in
5 that regard, and why, and I will listen.
6 And if I don't think I'm wrong, then we can
7 schedule, and I can have your considered views, after you've
8 checked with your clients to -- as to when, how soon we can
9 have it.
10 I don't want to lose this June 4th trial date.
11 I have cleared a lot of material away from my docket to get
12 this done.
13 Now, obviously, the June 4th trial date will go
14 if there's an interlocutory appeal. I don't have any
15 control over that.
16 I do have some control how soon we can have
17 this Section 6(c) hearing, and we need to do that.
18 So if there is to be an interlocutory appeal,
19 it happens soon. Then I can put things back on my docket,
20 and so forth.
21 All right. Thursday at 2:00 o'clock?
22 ATTORNEY LOWELL: Your Honor, as to the
23 schedule, then, we understand what will happen on Thursday.
24 As to the trial date --
25 THE COURT: Let me be clear now. What I
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1 understand will happen on Thursday is, I want to hear from
2 each of you if you think I'm right --
3 (Simultaneous discussion)
4 ATTORNEY LOWELL: That you have --
5 THE COURT: -- or wrong --
6 ATTORNEY LOWELL: -- to go to the next step.
7 THE COURT: -- that I have to go to the next
8 step of making specific findings for each of these. And
9 that will include a consideration of whether the Silent
10 Witness Rule will not -- what I'm not -- what's completely
11 gone is that they will be kept, that these excerpts will be
12 kept from the public.
13 ATTORNEY LOWELL: And I think, therefore, there
14 are --
15 THE COURT: Therefore, I don't see why, to a
16 large extent, the public -- or the Silent Witness Rule would
17 be used, except as to places or people.
18 ATTORNEY LOWELL: Right.
19 And I don't know that they have figured that
20 out yet.
21 THE COURT: Right.
22 ATTORNEY LOWELL: So Thursday we will
23 definitely do the first part.
24 If the government were to say, "We are
25 prepared," as we submitted to your Honor our response to
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1 their 6(c) under seal, that that's what we think would be
2 the same for the jury and the public, then we at some point
3 after Thursday, but very soon after Thursday, could proceed
4 down that list, one by one.
5 My imagination is, is that that's not the
6 government's position, that they are not going to go forward
7 unless they want you to enter that order, so that they can
8 take an interlocutory appeal, that that's truly what they
9 think should be the substitutions and summaries for both the
10 jury and the public. That remains to be seen.
11 If they do the third, that they want to now --
12 THE COURT: The other thing you have to
13 consider, Mr. Reilly, is that if that is your view, and it
14 isn't my view, I won't enter the order. I'll wait until I
15 do the 6(c). So you'll have to take that into account, too.
16 ATTORNEY LOWELL: And if they come back, as I
17 imagine they might want to, and actually go back to the
18 drawing board to do what you said is the alternative, which
19 is to do a 6(c) substitution and request, I don't know how
20 long that takes, your Honor, but we would like to hear what
21 they want to do, and be able to respond so that that hearing
22 is informed.
23 THE COURT: I was under the impression that
24 when the government filed its Section 6(c), that there were
25 already substitutions -- and there are some --
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1 ATTORNEY LOWELL: Some.
2 THE COURT: -- that that would be how we would
3 proceed.
4 But, I think it's, it's reasonable, Mr. Reilly,
5 for you all to go back and think about this.
6 What I'm suggesting to you is, I'm not likely
7 to be maneuvered into a situation where you all think you
8 have an appealable order and I don't do what the statute
9 requires.
10 ATTORNEY REILLY: Your Honor, with respect to
11 the substitutions that the government has proposed, they are
12 hand-in-glove with the Silent Witness Rule. They are not
13 separate from the Silent Witness Rule. They are part of one
14 of the same substitution.
15 That was the intention. The intention was
16 never that those substitutions would stand on their own,
17 apart from the Silent Witness Rule.
18 Now, the Court has also ruled --
19 THE COURT: Are you willing, then -- well, you
20 should consider whether you're willing to state on Thursday
21 that you decline to submit any substitutions that you would
22 ever make public.
23 ATTORNEY REILLY: That, we have to consider.
24 That's --
25 (Simultaneous discussion)
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1 THE COURT: And if that's --
2 ATTORNEY REILLY: -- one of our options.
3 THE COURT: -- then maybe the right way to do
4 this is for your to say that. And if you do say that, then
5 maybe under 6(e) I have decide whether to dismiss the
6 indictment, if that's the case.
7 ATTORNEY REILLY: I don't know that I'm going
8 to be able to tell you on Thursday --
9 (Simultaneous discussion)
10 THE COURT: Well, that's --
11 ATTORNEY REILLY: -- exactly --
12 THE COURT: -- that's the next step, isn't it?
13 If you tell me, "This is it; take it or leave
14 it," I have to go to 6(e).
15 ATTORNEY REILLY: That's correct, your Honor.
16 What I'm asking the Court's indulgence is, for
17 additional time. Two days is not enough to consult with the
18 multiple intelligence agencies and senior officials that
19 will have to be consulted with to get a decision on: Are we
20 going to stick with what we proposed?
21 Are we going to change it?
22 Are we going to modify it?
23 Are we going to agree that --
24 THE COURT: All right. I can appreciate that.
25 That's reasonable. So maybe Thursday is too soon.
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1 When is the soonest that it could be done,
2 Mr. Reilly?
3 ATTORNEY REILLY: I would ask the Court that we
4 come back Thursday to tell the Court when that can be done,
5 and give the Court a better idea of what the timing is.
6 THE COURT: All right. I can do that, as well.
7 I'm here Thursday, anyway, so I can do that.
8 ATTORNEY LOWELL: Your Honor, we can be here,
9 and we will be here. I was juste wondering, why can't the
10 government inform the Court and the defendants by Thursday,
11 how much time they need, as opposed to come here --
12 THE COURT: No --
13 ATTORNEY LOWELL: -- to announce it?
14 THE COURT: -- it could be. But there is --
15 you eliminate a lot of potential for misunderstanding and
16 the like if you're here. So let's get it done.
17 ATTORNEY REILLY: Your Honor?
18 THE COURT: So now, it's clear that on Thursday
19 it will merely be a status, at which time Mr. Reilly will
20 advise the Court whether the government will proceed to file
21 6(c) substitutions, or revised, amended 6(c) substitutions;
22 whether it's prepared to go ahead on 6(c) substitutions as
23 they are, and -- otherwise, what I may do, also -- because I
24 want to make findings on each one. So I may at some point
25 set a very quick hearing and require the defendants to
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1 submit, with respect to each one, so that I can use that as
2 an order, and I can either say I agree with the government,
3 or I disagree with the defendants, as to whether it passes
4 muster under 6(c), whether it uses the Silent Witness Rule
5 or not. That may be the way to proceed. And then you would
6 have your order.
7 On the other hand -- and I would also -- I
8 think I would want to know from the parties -- if I rule,
9 for example, that some submission, some specific
10 substitution which the government says it wants to use via
11 the Silent Witness Rule, does not pass muster under 6(c)
12 fairness, shouldn't the order then also address what I think
13 is the appropriate remedy under 6(c), so that that's part of
14 what goes on appeal?
15 I think it should. And that's another thing I
16 want you to think about between now and Thursday.
17 ATTORNEY REILLY: Your Honor, I think there's
18 some confusion on my part. I'm asking the Court to allow us
19 to come back Thursday to advise the Court how much time,
20 additional time, we would need to make that decision.
21 THE COURT: You're right, Mr. Reilly. You're
22 right.
23 So all we're really doing, then -- back to
24 Mr. Lowell's view -- is, how much time?
25 Why can't you just do that by pleading?
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1 ATTORNEY REILLY: I think the Court's point
2 about confusion, and the myriad intricacies of this --
3 (Simultaneous discussion)
4 THE COURT: Well, I --
5 ATTORNEY REILLY: -- is a valid one, and --
6 THE COURT: Yes.
7 And I want you, Mr. Nassikas and Mr. Lowell, to
8 think about this, about what your view is.
9 Let me say once again what I -- what my view
10 is.
11 I have ruled on this proposal and said that it
12 doesn't meet the fairness requirements of Section 6(c). But
13 I've also ruled that it would close, effectively close a
14 large part of the trial, and would fail under the both the
15 Sixth and the First Amendments.
16 Now, what I have not done is to look at each
17 individual proposed substitution and consider whether, if
18 revealed to the public and the jury, whether that would
19 serve adequately under 6(c). I think I need to make that
20 determination.
21 The government says, "But we want the Silent
22 Witness Rule to go with each of those."
23 Well, I would think that it would be
24 appropriate for me, since I've already ruled that it can't
25 be used on all of them, it would close the trial, for me to
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1 consider whether it might be usable on an aspect, or one or
2 more of them, but that it wouldn't be used -- couldn't be
3 used for certain others; and put that in the order, as well
4 as whether it meets the fairness requirements.
5 And then, I think I also, in a Section 6(c)
6 determination, I think I also have to consider what remedy
7 under 6(e) the Court feels is appropriate, if it does find
8 that some substitution or statement of facts does not pass
9 muster.
10 And if that's the case, then I want to know
11 from the parties whether they think that's the right
12 procedure.
13 ATTORNEY REILLY: If I may, your Honor?
14 THE COURT: Yes.
15 ATTORNEY REILLY: The Court's opinion about
16 whether a substitution passes muster or not?
17 THE COURT: Yes.
18 ATTORNEY REILLY: Ultimately, that goes back on
19 the government, where the government then has the option of
20 coming back to the Court with another --
21 (Simultaneous discussion)
22 THE COURT: That's correct.
23 ATTORNEY REILLY: -- substitution --
24 THE COURT: That's right.
25 ATTORNEY REILLY: -- or saying, "We will just
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1 disclose the information" --
2 THE COURT: That's right.
3 ATTORNEY REILLY: -- we're saying we won't.
4 THE COURT: That's true, very true.
5 ATTORNEY RILEY: And then the Court considers
6 what penalties or options it has. So I think we're
7 premature on that.
8 THE COURT: Yes. I think you're correct in
9 that regard.
10 ATTORNEY NASSIKAS: Your Honor?
11 THE COURT: But since this has already drawn
12 out, you ought to be prepared on that. I don't want to
13 hear, "Well, now I've got to go back to my clients again."
14 Do it once and for all. If you're prepared --
15 if that's as far as you're prepared to go, then tell me.
16 Let's get it done.
17 Yes --
18 (Simultaneous discussion)
19 ATTORNEY NASSIKAS: Your Honor --
20 THE COURT: -- Mr. Nassikas.
21 ATTORNEY NASSIKAS: -- that is precisely my
22 point. By Thursday, I would hope the government, if they
23 are going come up with a 6(c) substitution separate from the
24 ones they've currently given the parties and the Court, that
25 they do not ask for an indefinite additional amount of time
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1 to do that.
2 Our presumption would be that the government,
3 with its resources, would already have done that, knowing
4 how novel this approach was that they presented to the
5 Court.
6 THE COURT: Well, like many things, the
7 government's resources is an often-exaggerated concept.
8 More pertinent in this regard are cantankerous, individual,
9 uncooperative clients that Mr. --
10 ATTORNEY REILLY: I --
11 THE COURT: -- Reilly has to deal with.
12 ATTORNEY REILLY: I respectfully disagree, your
13 Honor. The intelligence community has been fully supportive
14 and cooperative. These are not easy decisions. These are
15 very --
16 (Simultaneous discussion)
17 THE COURT: I'm --
18 ATTORNEY REILLY: -- difficult decisions.
19 THE COURT: -- I'm delighted to hear you say
20 that. That will make it easier for me to impose very, very,
21 strict time requirements.
22 All right. I thank counsel. I'll see you at
23 2:00 o'clock on Thursday.
24 ATTORNEY WEISS: Your Honor?
25 THE COURT: Yes.
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1 ATTORNEY WEISS: I assume Thursday is public.
2 ATTORNEY LOWELL: It's public.
3 THE COURT: Absolutely.
4 ATTORNEY WEISS: You originally said it was
5 closed.
6 THE COURT: That's right. Because it isn't --
7 ATTORNEY LOWELL: A status hearing.
8 THE COURT: -- the Section 6 -- I beg your
9 pardon?
10 ATTORNEY LOWELL: I think you converted it to a
11 status conference.
12 THE COURT: That's correct.
13 ATTORNEY WEISS: Thank you, your Honor.
14 (Court recessed at 4:20 p.m.)
15
16 ---
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1
2
3 CERTIFICATE OF REPORTER
4
5 I, MICHAEL A. RODRIQUEZ, an Official Court
6 Reporter for the United States District Court, in the
7 Eastern District of Virginia, Alexandria Division, do hereby
8 certify that I reported by machine shorthand, in my official
9 capacity, the proceedings had upon the motions hearing in
10 the case of UNITED STATES OF AMERICA v. STEVEN J. ROSEN,
11 KEITH WEISSMAN.
12
13 I further certify that I was authorized and did
14 report by stenotype the proceedings in said motions hearing,
15 and that the foregoing pages, numbered 1 to 68, inclusive,
16 constitute the official transcript of said proceedings as
17 taken from my machine shorthand notes.
18
19 IN WITNESS WHEREOF, I have hereto subscribed my
20 name this day of , 2007.
21
22
23 Michael A. Rodriquez, RPR/CM/RMR
Official Court Reporter
24
25
MICHAEL A. RODRIQUEZ, RPR/CM/RMR