ALEXANDRIA, Va. Prosecutors suffered a setback yesterday in their case against two former pro-Israel lobbyists accused of violating the 1917 Espionage Act when a federal judge rejected the government's proposal for conducting much of the trial in secret.
U.S. District Judge T.S. Ellis said the government's proposal to keep huge swaths of evidence in the case out of public view was unprecedented and violated the both the defendants' and the public's right to an open trial.
The defendants Steven Rosen and Keith Weissman, who had been lobbyists with the American Israel Public Affairs Committee are charged with illegally disclosing sensitive national defense information to persons not entitled to receive it, including journalists and foreign diplomats.
Concerned that a public trial would result in wholesale disclosures of classified and sensitive information, prosecutors proposed a procedure that would have kept "the heart of the case" forever shielded from public view, Ellis said.
Under the plan, only the judge, lawyers and the jury would have been given access to classified evidence. The trial would have been conducted in open court, but witnesses and lawyers would have referred to classified evidence using coded language such as "Country A" and "Foreign Agent #2." The code would have been continually changed to prevent the public from cracking it.
Ellis said the proposal not only raised constitutional questions, but would have been unwieldy as a practical matter and likely confused jurors trying to keep up with the code.
On rare occasions, prosecutors have been allowed to use what is called the "silent witness" rule, in which only a jury receives classified information that is never disclosed to the public.
But Ellis said the government's proposed use of the silent-witness rule was unprecedented in scope.
"Its use would ... exclude the public from important and substantial parts of the trial," Ellis said. "Justice must not only be done; it must also be seen."
The information would have been at the heart of the case, because much of the defense centers on whether the information Rosen and Weissman allegedly disclosed is actually "national defense information." To qualify as such, the information must be both closely held and potentially damaging to national security.
The defense contends that much of the information in question was already publicly available. Indeed, during yesterday's hearing Ellis said that some of the information deemed classified by the government includes news reports.
Rosen's lawyer, Abbe Lowell, said he was pleased with Ellis' ruling and called the government's proposal unconstitutional and "worse than unprecedented."
A coalition of news-media organizations, including the Associated Press, and a coalition of Jewish organizations had also opposed the government's proposal. In court papers, the Jewish coalition cited the Dreyfus affair, a 19th-century case in France in which a French Army officer, Alfred Dreyfus, was wrongly convicted of treason based in part on secret evidence. The prosecution of Dreyfus, who was Jewish, stirred anti-Semitic sentiment throughout France.
"Any use of 'secret evidence' runs the risk of deepening anti-Jewish sentiment in the United States by perpetuating the myth of overly powerful 'Jewish lobby' composed of people loyal to Israel first and the United States second," said lawyer Steven Lieberman on behalf of AMCHA The Coaltion for Jewish Concerns.
Prosecutors told Ellis after he issued his ruling that they are reviewing their options, including a possible appeal that would delay the scheduled trial date of June 4. Another option is to craft unclassified substitutions of the classified evidence that would be given to the jury and would be made public.
Such substitutions are permitted under a federal law that was written in part to reduce the problem of so-called "graymail," in which espionage defendants could stymie prosecutions by threatening to force classified information into public view during a trial.
Rosen and Weissman are not charged with espionage, but are charged under the 1917 Espionage Act, a rarely used World War I-era law that has never before been applied to lobbyists.
The indictment alleges that Rosen and Weissman conspired to obtain classified reports on issues relevant to American policy, including the al-Qaida terror network; the bombing of the Khobar Towers dormitory in Saudi Arabia, which killed 19 U.S. Air Force personnel; and U.S. policy in Iran.
A former Defense Department official, Lawrence A. Franklin, already has pleaded guilty to providing Rosen and Weissman classified defense information. Franklin was sentenced to more than 12 years in prison.