In his most sweeping ruling yet in the case against Steve Rosen, the AIPAC's former foreign policy chief, and Keith Weissman, its former Iran analyst, Judge T.S. Ellis III rejected a government proposal to obscure evidence from the public.
Ellis, who until now has sought compromises in a series of pretrial rulings, was unequivocal: The government's request violates not only the procedures of the Classified Information Protection Act but two articles of the U.S. Constitution.
The plan "closes significant parts of this trial and fails to pass constitutional muster," Ellis ruled Monday in the U.S. District Court in Alexandria, Va.
The government's plan would have sworn jurors to secrecy; referred to countries and individuals mentioned in the document in codes that would change from reference to reference; and kept documents discussed at trial out of public view.
The crux of the charges against Rosen and Weissman is that they allegedly shared information on Iran with Israeli diplomats, journalists and others. The defense strategy will be to argue that much of the information was in the public domain.
The government's proposal was "novel," "creative" and "imaginative," Ellis said, but it would mean "what the public does not see or hear is the heart of this case."
That would violate two constitutional amendments, he said: the sixth, protecting a defendant's right to a public trial, and the first, protecting the public's right to be apprised of judicial proceedings.
"It is always true that justice must not only be done, it must be seen to be done," he said.
Defense lawyers looked back at Rosen and Weissman and smiled.
Rabbi Shmuel Herzfeld of Amcha, the only Jewish organization that has formally come to the defense of Rosen and Weissman, through an amicus brief, welcomed the ruling.
"How do they propose to close the court?" Herzfeld said of the prosecution. "Is this Soviet Russia?"
The ruling was watched closely by major media groups and free-speech advocates. A number of them combined to file an amicus brief.
Ellis also said the procedure would confuse and prejudice the jury against the defense, since how could they judge whether information was properly in the public domain if they were told to keep it secret?
"It not only invites juror confusion, I think it virtually guarantees it," he said. The prosecution appeared unprepared for Ellis' sweeping dismissal.
The judge was prepared to schedule a session Thursday to move to the next stage and decide whether to apply more moderate secrecy restrictions on some of the evidence on a case-by-case basis, as is routine in such cases. Government prosecutors admitted that they had not prepared for such an eventuality, apparently believing their proposal to black out most of the evidence would pass muster.
Such presumptions appeared to annoy the usually avuncular Ellis.
Ellis' pretrial rulings have tended to favor the government, albeit with caveats. Last summer he rejected a defense motion to dismiss as unconstitutional the government's unprecedented use of a 1917 statute that criminalizes the receipt of classified information, but struck down its provision that obtaining such information would be unlawful if it were "to the advantage of any foreign nation."
That would be unconstitutional, Ellis ruled at the time, were it applied to allies, leaving prosecutors with the hurdle of either proving that releasing the information "could be used to the injury of the United States," according to the statute, or that Israel is not an ally.
On Monday, prosecutors left open the possibility that they would appeal Ellis' decision to the 4th Circuit appeals court, although Ellis emphasized that he had based his
decision principally on that court's opinions.
Ellis's frustration appeared driven in part by delays in trying the case. FBI agents raided the offices of Rosen and Weissman in August 2004, and the AIPAC pair was indicted a year later. The latest trial date -- the fifth -- is June 4.
"It is important we get it tried as soon as possible -- or not tried," Ellis said.
That was the first of two times that Ellis appeared to hint that the prosecution should consider dropping the case.
In a tense exchange with Ellis, Thomas Reilly, the Justice Department's liaison with intelligence agencies, insisted that prosecutors still held that the whole trial could be subject to secrecy, despite Ellis' ruling.
"You have to decide" whether to advance to the next stage, Ellis said. "If you tell me that this is it, take it or leave it, I have to go to 6E," the section of the Classified Information Protection Act that would allow Ellis to throw out the whole case.
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