evidence denied to the defendant and his attorneys in the case of those
accused of "terrorism" while denying such use in trials of those accused
of "espionage?" In the "terrorism" cases, the defense cannot cross
examine the evidence. In the "espionage" cases the lawyers can cross
examine.
Robert Wozniak wrote
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.
>
> http://www.fas.org/sgp/jud
>
> A follow-up hearing was scheduled this afternoon (April 20) to
> identify the prosecution's next step.
>
> 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.
>
> http://www.fas.org/sgp/jud
>
> A follow-up hearing was scheduled this afternoon (April 20) to
> identify the prosecution's next step.
>