United States v. Rosen
2007 U.S. Dist. LEXIS 81531, 520 F. Supp. 2d 786, 2007 WL 3243919 (2007)
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Rule of Law:
The 'silent witness rule' (SWR), a procedure where evidence is shown to the jury but not the public, is not authorized by the Classified Information Procedures Act (CIPA) but is a permissible, judicially-created tool that constitutes a partial trial closure and must satisfy a four-part test blending First Amendment and defendant-fairness standards. Separately, the government's common law privilege over classified information is overcome if a defendant shows the information is 'relevant and helpful to the defense' or 'essential to a fair determination of a cause.'
Facts:
- Steven Rosen and Keith Weissman were charged with conspiracy to obtain and disclose National Defense Information (NDI) to unauthorized individuals.
- The indictment alleged that Rosen and Weissman cultivated sources within the U.S. government to obtain the NDI.
- The defendants allegedly disclosed the NDI to American Israel Public Affairs Committee (AIPAC) staffers, journalists, and foreign government officials.
- Rosen was also separately charged with aiding and abetting co-conspirator Larry Franklin’s unauthorized disclosure of NDI.
- The aiding and abetting charge against Rosen was based on his receipt of a specific facsimile sent to him by Franklin.
- The prosecution involved a large volume of classified documents and information.
Procedural Posture:
- The United States government filed a Superseding Indictment against Steven Rosen and Keith Weissman in the U.S. District Court for the Eastern District of Virginia, the court of first instance.
- Pursuant to the Classified Information Procedures Act (CIPA), the defendants filed a notice under § 5 identifying classified information they expected to disclose at trial.
- The district court held a sealed CIPA § 6(a) hearing and made preliminary determinations on the relevance of the noticed information.
- The government filed an initial CIPA § 6(c) motion proposing extensive use of the 'silent witness rule' (SWR).
- The court struck the government's first motion, ruling that the proposed use of the SWR was excessive and constituted an unjustified closure of the trial.
- The government then filed a second, more limited CIPA § 6(c) motion, again proposing use of the SWR along with other substitutions, which is the subject of this opinion.
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Issue:
Does the 'silent witness rule' (SWR), a procedure that presents classified evidence to the jury but withholds it from the public, constitute a permissible method for managing classified information in a criminal trial, and if so, what legal standard governs its application?
Opinions:
Majority - T.S. Ellis, III, District Judge.
Yes. The 'silent witness rule' (SWR) is a permissible, judicially-created tool for presenting classified evidence at trial, even though it is not explicitly authorized by the Classified Information Procedures Act (CIPA). The court reasoned that CIPA is not an exhaustive or exclusive framework for handling classified information, as it is silent on numerous procedural issues. However, the SWR is not a substitution under CIPA § 6(c), because CIPA substitutions are presented to the jury and public in the same form, whereas the SWR creates a disparity. Because the SWR results in a partial closure of the trial, its use must satisfy the demanding test from Press-Enterprise Co. v. Superior Court. The court established a four-part test for its application, requiring the government to show: (1) an overriding interest justifying closure, (2) the closure is narrowly tailored, (3) no reasonable alternatives exist, and (4) its use provides the defendant with substantially the same ability to present a defense as full public disclosure. The court also affirmed the existence of a common law classified information privilege but held it can be overcome if the defendant shows the information is 'relevant and helpful to the defense' or 'essential to a fair determination of a cause.' If this standard is met, the court must admit the evidence or an adequate substitution without balancing national security interests against the defendant's right to a fair trial.
Analysis:
This memorandum opinion provides a foundational legal framework for managing the tension between national security and trial rights in espionage prosecutions. By formally adopting and articulating a specific, four-part test for the novel 'silent witness rule,' the court created durable precedent for future cases involving classified evidence. The decision's synthesis of First Amendment trial closure standards (Press-Enterprise) with CIPA's statutory fairness requirements establishes a high bar for the government, protecting both public access and defendants' due process rights. Furthermore, by adopting the more lenient 'relevant and helpful' standard for overcoming the government's classified information privilege, the court provided a significant tool for defendants in national security cases.
