SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2007, Issue No. 42
April 19, 2007

Secrecy News Blog: http://www.fas.org/blog/secrecy/

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COURT RULES THAT AIPAC TRIAL MUST BE OPEN

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 information.

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 rejected.

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.

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

OTHER SECRECY NEWS

Independent press reporting of Army plans to extend soldiers' tours of duty in Iraq by three months prompted outraged warnings from the Army vice chief of staff about the need to improve control of Army information against unauthorized disclosure. See "General: Embarrassing = Secret" in the Danger Room blog, April 18:

The government asserted the "state secrets" privilege in a Nevada lawsuit involving eTreppid Technologies (and the classified BIG SAFARI program). But instead of trying to shut the case down, as commonly occurs in state secrets cases, the government, which is not a party to the case, is proposing a way that it could proceed. See "eTreppid case gets special treatment" by Martha Bellisle, Reno Gazette-Journal, April 19:

Senate efforts to advance the FY2007 Intelligence Authorization Act collapsed again on April 17 in the face of Republican opposition to several provisions of the legislation, further undermining congressional oversight of intelligence.

SELECTED CRS REPORTS

Some noteworthy new reports of the Congressional Research Service include the following.

"Environmental Impacts of Airport Operations, Maintenance, and Expansion," April 5, 2007:

"What's the Difference? -- Comparing U.S. and Chinese Trade Data," April 10, 2007:

"Vulnerability of Concentrated Critical Infrastructure: Background and Policy Options," updated January 26, 2007:

"Polar Bears: Proposed Listing Under the Endangered Species Act," updated March 30, 2007:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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