MEMORANDUM OPINION
At issue in this Espionage Act
1
prosecution is the government’s second motion pursuant to § 6(c) of the Classified Information Procedures Act (CIPA), 18 U.S.C.App. 3, to introduce certain summaries, redactions, and substitutions at trial in lieu of certain specific classified information, and to use the “silent witness rule” (SWR) with respect to portions of certain documents and recordings. After briefing on the motion, a sealed hearing was held over the course of eleven days in July, August, and September 2007,
2
during the course of which the Court heard argument and made rulings on,
inter alia,
(i) the
I. CIPA Proceedings to Date
Defendants Steven Rosen and Keith Weissman are charged with conspiracy to violate the Espionage Act, in violation of 18 U.S.C. §§ 793(g) and (e). Rosen is also charged with one count of aiding and abetting alleged co-conspirator Larry Franklin’s unauthorized disclosure of national defense information, 3 in violation of 18 U.S.C. § 2, 793(d). The Superseding Indictment generally charges that defendants cultivated sources of information within the United States government, obtained or sought to obtain NDI from those sources, and disclosed that information to a variety of other individuals not authorized to receive it, including American Israel Public Affairs Committee (AIPAC) staffers, journalists, and foreign government officials.
This case involves a large volume of classified information. Discovery of such information, and its use at trial, is governed by CIPA. The preliminary stages of the CIPA process — the CIPA § 2 pre-trial conference, the CIPA § 3 protective order, and classified discovery pursuant to CIPA § 4 — are adequately described in a prior Memorandum Opinion.
See United States v. Rosen,
The government then filed a motion, ostensibly pursuant to CIPA § 6(c), in which it sought application of the SWR to most of the classified information at issue in the case. The Court struck this motion in its entirety, finding,
inter alia,
that the government’s proposed extensive use of the SWR effectively closed the trial to the public and that the government had not adequately justified this trial closure under the applicable standard of
Press-Enterprise Co. v. Superior Court of California,
II. Applicable Law
A. CIPA
The goal of the CIPA process is to identify in advance of trial the universe of classified information to be disclosed at trial and to minimize unnecessary disclosure of classified information by use of substitutions, redactions, and summaries that do not meaningfully impair defendants’ ability to present a defense. This goal is not easily attained, as it requires both prosecutors and defense counsel to disclose, well in advance of trial, certain aspects of their trial strategy, including the identity of potential witnesses and the nature and thrust of expected trial testimony and potential jury arguments. In effect, the CIPA process compels discovery well beyond that required by Rule 16, Fed.R.Crim.P. And attaining the CIPA goal is all the more difficult where, as here, the case is complex, the relevant issues and topics numerous and the volume of pertinent classified documents large by any measure. Thus, it is not surprising that the § 6(c) stage of the CIPA process has required eleven hearing days thus far and may require more.
By the time of the § 6(c) stage of the CIPA process, the universe of classified documents and testimony topics for use at trial has been previously identified. The specific goal at hand is to consider the government’s second § 6(c) motion to allow certain redactions of portions of classified documents and to use in lieu thereof certain substitutions and summaries to the end of avoiding unnecessary disclosure of classified information. This motion is governed chiefly by § 6(c) itself, which, in pertinent part, provides that
The court shall grant such a motion of the United States if it finds that the statement or summary will provide the defendant with substantially the same ability to make his defense as would disclosure of the specific classified information.
The government also proposes that certain classified documents and recordings be admitted at trial in redacted form, a proposal governed by CIPA § 8(b), which, in order to prevent unnecessary disclosure of classified information, authorizes “excision of some or all of the classified information contained therein, unless the whole ought in fairness to be considered.”
It is quite clear, therefore, that the touchstone of permissible CIPA § 6(c) substitutions, summaries or redactions is fairness. It is not open to the court to question or second-guess the classification status of any document or the government’s request to subject parts of docu
This discussion summarizes briefly the principles that govern disposition of the purely § 6(c) issues raised in the government’s motion. But this CIPA § 6(c) discussion does not, by itself, fully describe the legal principles that control disposition of the government’s motion at bar inasmuch as that motion, together with related pleadings, also seeks to use the SWR in connection with a subset of classified matters to be used at trial and also to invoke the government’s common law classified information privilege.
B. The Elements of the Offenses
Given the important role the offense elements play in CIPA § 6(c) judgments, it is useful to restate those elements here in Part B notwithstanding that they have elsewhere been stated. Defendants are charged .under § 793(g) with conspiracy to obtain and disclose NDI to persons not authorized to receive it; they are not charged under § 793(d) or (e) with the substantive disclosure offense itself. The Fourth Circuit has explained that the elements of a conspiracy are “an agreement among the defendants
to do something which the law prohibits;
knowing and willing participation by the defendants in the agreement; and an overt act by the defendants in furtherance of the purpose of the agreement.”
United States v. Hedgepeth,
Based on these principles, the government has argued that it need not prove that defendants actually obtained or dis
The limiting construction of § 793(d) and (e) imposed in
Rosen I
requires proof of both act and mental state elements. As to the former,
Rosen I
stated that, for § 793(d) and (e) to survive a vagueness challenge, the statutory term “information related to the national defense” (NDI) must be confined to information closely held by the government and damaging to national security if revealed.
Rosen I,
I).
Yet
Rosen I
also provided that certain mental states closely related to the “NDI” and “entitled to receive” elements must be proved for § 793 to pass constitutional muster. Because a prosecution for oral disclosure of NDI would be constitutionally infirm if a defendant lacked notice that the information disclosed was NDI or that the recipient was not entitled to receive it, the government must prove beyond a reasonable doubt that a defendant charged with an oral disclosure of NDI under § 793(d) or (e) actually knew that
Thus,
Rosen I
requires that to establish a prosecution for conspiracy to violate § 793(d) and (e) by orally disclosing NDI, the government must prove beyond a reasonable doubt that at the time they entered the unlawful agreement, the defendants (i) knew that the information the conspiracy sought to obtain and disclose was NDI,
ie.,
knew that the information was closely held by the government and that the disclosure of the information would be damaging to the national security, (ii) knew the persons to whom the disclosures would be made were not authorized to receive the information, (iii) knew the disclosures the conspiracy contemplated making were unlawful, (iv) had reason to believe the information disclosed could be used to the injury of the United States or to the aid of a foreign nation, and (v) intended that such injury to the United States or aid to a foreign nation result from the disclosures.
See Rosen I,
In addition to the conspiracy charge, Rosen is also charged with aiding and abetting Larry Franklin’s violation of 18 U.S.C. § 793(d). This charge is based on Rosen’s receipt of a specific facsimile sent to him by Franklin. To prove this offense, the government must prove (i) that Franklin committed the underlying offense, (ii) that Rosen participated in the crime as something he wished to bring about, (iii) that Rosen associated himself with Franklin’s criminal venture knowingly and voluntarily — that is, that he shared Franklin’s criminal intent and was aware of the unlawfulness of their acts — and (iv) that Rosen sought by his actions to make the criminal venture succeed.
See, e.g., United States v. Moye,
C. The Silent Witness Rule
In addition to conventional CIPA substitutions,
ie.
redactions, admissions, and summaries, the government also proposes use of the SWR, a procedure whereby certain evidence designated by the government is made known to the judge, the jury, counsel, and witnesses, but is withheld from the public. Under this procedure, a witness referring to this evidence would not specifically identify or describe it, but would instead refer to it by reference to page and line numbers of a document or transcript, or more commonly by use of codes such as “Person 1,” “Country A,” etc. The jury, counsel, and the judge would have access to a key alerting them to the meaning of these code designations;
(1) Use of conventional CIPA § 6(c) substitutions, summaries, and redactions results in trial participants and the public seeing and hearing the same trial, whereas use of the SWR results in the trial participants hearing or seeing some evidence the public does not see or hear. In other words, the SWR results in closing a part of the trial to the public. (2) Use of the conventional CIPA § 6(c) substitutions, summaries, and redactions results in avoiding unnecessary disclosure of classified information to both trial participants and the public, as both groups see and hear the same substitutions, summaries and redactions of classified information; whereas use of the SWR allows trial participants (including the jury), but not the public, to see and hear certain classified information.
The SWR is a novel evidence presentation technique that has received little judicial attention in the context of the use of classified information in trials. No published decision has explicitly approved or endorsed use of the rule in this context. Indeed, the government has only proposed the SWR in three reported cases.
11
Of these three attempts, only in
Zettl
did the district court permit the SWR’s use, but that case is of limited guidance because the district court’s reasoning in permitting the SWR with respect to the use of classified information is not reflected in any published decision, and the Fourth Circuit declined on appeal to reach the question. This paucity of judicial precedent on the
The threshold question that must be resolved with respect to the SWR’s use in this case is whether it is even permissible to use in the CIPA context. Put differently, the question is whether CIPA provides the exclusive means of dealing with classified information in criminal trials and, even if so, whether the SWR can be said to be authorized by CIPA § 6(c) as constituting a species of “summary” or “substitution” under that provision. These are not easily answered questions. Substantial arguments exist on both sides of these questions. Defendants point chiefly to CIPA’s comprehensiveness in its prescriptions for the handling of classified information in trial. This comprehensiveness, defendants argue, manifests Congress’ intent to forbid the use of any trial presentation techniques not specifically authorized by CIPA, including the SWR. A closely-related statutory construction argument defendants advance relies on the familiar interpretive canon
expressio unius est exclusio alterius,
namely that “[w]hen a statute limits a thing to be done in a particular mode, it [the statute] includes the negative of any other mode.”
Diaz v. Va. Hous. Dev. Auth.,
Although not insubstantial, these arguments, in the end, fail to persuade. CIPA, while undeniably detailed in some respects, is neither explicitly nor implicitly exclusive as to the trial treatment of classified information. CIPA provides no answer, for example, to the question whether the classification markings on relevant documents should be removed as inadmissible hearsay as to the issue whether the document’s contents are NDI within the meaning of the Espionage Act.
12
Nor does CIPA provide any guidance on whether it might either be appropriate or required to issue a jury instruction limiting the purposes for which the jury might consider a document’s classification markings.
13
Similarly, CIPA does not address the question, presented in this case, whether it is appropriate to allow disparate access by experts to certain classified information redacted from a relevant classified trial document.
14
Also not addressed by CIPA is whether witnesses whose identity is classified may appear to testify using a pseudonym, a mask or some other device to conceal the witness’s identity.
15
CIPA is also silent
In sum, CIPA is neither exhaustive nor explicitly exclusive with respect to the presentation of classified testimony or documents at trial. It follows that CIPA cannot be said to exclude the use of the SWR at trial. And, indeed, while no court has squarely addressed this precise question, a few courts have implicitly approved the use of the SWR at trial. 16 Other courts, without using the “SWR” term, have approved the presentation of evidence in one form to the jury and in another form to the public. 17 In doing so, these courts have given effect to Congress’ express intent in enacting CIPA that federal district judges “must be relied on to fashion creative and fair solutions to these problems,” ie., the problems raised by use of classified information in trials. S. Rep. 96-823, reprinted in 1980 U.S.C.C.A.N. 4294. 18 In short, the SWR is precisely the sort of judicially-created fair solution envisioned by Congress.
Nor is Rule 26 of any aid to defendants’ argument. The Rule is general and aspirational and suffers the fate of all general rules: It has well-established exceptions. Courts in criminal cases have in a variety of circumstances partially closed proceedings to accommodate overriding interests, such as the safety of confidential informants and undercover officers.
19
The
Less difficult to answer is the second question posed, namely whether the SWR is merely a species of redaction or substitution authorized by CIPA § 6(c). It is not. CIPA § 6(c) redactions and substitutions, unlike the SWR, do not effect any closing of the trial to the public. To the contrary, CIPA plainly envisions that substitutions and redactions will be made available in the same form to the public as to the trial participants. This is confirmed not only by the plain meaning of CIPA’s text, but also by the absence of any statutory language or legislative history concerning the First Amendment considerations raised by the partial closing of the trial that results from the SWR’s use. It is difficult to believe that this important constitutional consequence went unnoticed by CIPA’s drafters. It went unnoticed because it was not present; CIPA’s redactions and substitutions do not close the trial. The SWR is not part of CIPA. To conclude otherwise impermissibly engrafts on CIPA a judicial gloss of constitutional magnitude never envisioned, discussed, or provided for by CIPA’s architects.
Given that the SWR is not part of CIPA and is neither foreclosed by CIPA nor by Rule 26, the question now presented is what standards apply for its application. As explained in
Rosen VII,
use of the SWR constitutes a partial closure of the trial — or, if used extensively, a complete closure of the trial — because it prevents the public from seeing and hearing the complete body of evidence in the case.
See Rosen VII, 487
F.Supp.2d at 707-21. Of course, the SWR is not
per se
impermissible because it closes the trial, but use of the procedure is permissible only after a searching analysis, both because the rights of the public and defendants to a public trial are constitutionally guaranteed, and also because erroneous deprivation of the right to a public trial is
per se
prejudicial.
See id.
at 716 (citing cases). Specifically, because the SWR effects a partial closure of the trial, the use of the rule must survive scrutiny under
Press-Enterprise Co. v. Superior Court of California,
Although
Press-Enterprise
does not require an explicit finding that a trial closure is fair to defendants, it is appropriate to reject any use of the SWR that is unfair to defendants. This is so for several reasons. First, defendants have a due process right to a fundamentally fair trial.
21
Second,
Press-Enterprise
and its progeny are concerned with conventional sealing of proceedings and simply did not foresee or address this novel procedure, which is a “highly artificial” means of presenting evidence that could, in many circumstances, inhibit the ability of witnesses and counsel to communicate with the jury, to the detriment of defendants’ ability to present their defense fairly.
Fernandez,
Because the SWR, unlike a conventional summary or redaction, permits the jury to view the actual evidence the government seeks to protect from public disclosure, there is no potential for unfairness based on the factfinder’s inability to learn relevant, classified facts which have been summarized or redacted out. Yet there is potential for unfairness in the SWR’s use; it lies (i) in the awkwardness of presentation and resulting jury confusion, (ii) in witnesses’ and counsel’s inability to explore fully and argue about the facts protected by the SWR, and (iii) in the prejudice from employing a procedure that suggests to the jury that the information being discussed is a closely-held government secret when the jury itself must decide that very issue.
See Rosen VII,
The SWR’s use may entail a second type of potential unfairness to a defendant, namely infringement of a defendant’s Sixth Amendment right to a public trial.
22
This right helps ensure that the public sees the evidence and proceedings so that it can make its own assessment about the fairness of the proceedings. This public scrutiny of a trial provides some insurance against an unfair prosecution or proceeding. The public’s assessment of the fairness of a trial may be impaired by the use of the SWR if that use distorts the meaning of the underlying evidence. Thus, even if an SWR proposal does not hinder the defense in presenting its case, it may, in certain circumstances not present here, be appropriate to reject or modify an SWR “substitution” or code if the code significantly distorts the meaning of the underlying information. Unlike the effect the SWR may have on a defendant’s right to cross-examine, this public trial concern is adequately accommodated by the
Press-Enterprise
test for trial closure, as the analysis for closing a trial under the First Amendment is the same as the analysis required for closing a trial under the Sixth Amendment.
See Waller,
To summarize, because the concerns animating both Press-Enterprise and CIPA are present when the SWR is used, it is appropriate to approve use of the SWR only when both tests are satisfied, that is only when the government establishes (i) an overriding reason for closing the trial, (ii) that the closure is no broader than necessary to protect that interest, (iii) that no reasonable alternatives exist to closure, and (iv) that the use of the SWR provides defendants with substantially the same ability to make their defense as full public disclosure of the evidence, presented without the use of codes. 23
The parties dispute whether the government possesses a common law privilege in classified information, and, if so, they dispute its strength. The first question is easily answered: Fourth Circuit precedent makes clear that the government has a common law privilege in classified information and that this privilege is not displaced by CIPA. This circuit’s first pronouncement on this privilege appears in
United States v. Smith,
In support of their opposition to the privilege’s existence, defendants note that other courts have criticized and rejected this aspect of
Smith
24
Defendants also note that this circuit in a later opinion—
United States v. Moussaoui
— arguably criticized
Smith
in other respects. Yet, in the end defendants’ argument must fail inasmuch as
Moussaoui,
the Fourth Circuit’s latest pronouncement on this issue, unequivocally affirmed the existence of the government’s classified information privilege.
See
Defendants fare better on the parties’ dispute over the strength of the privilege, namely what showing a defendant must make to overcome the privilege if the government invokes it. The government, pointing to
Smith,
argues that the privilege is not overcome unless the information as to which the privilege is claimed is “essential to the defense.”
In addition to clarifying the standard a defendant must meet to overcome the privilege,
Moussaoui
specified that it is not for the court to review and second guess the government’s decision to classify a document or information; that decision is committed to the sole discretion of the Executive Branch.
Moussaoui,
In sum, then, there exists a government classified information privilege and a district court’s task in deciding questions relating to this privilege is to determine whether the evidence for which the government claims the privilege is “relevant and helpful to the defense”
or
“essential to a fair determination of a cause.”
Id.
at 472 (internal citations omitted). If so, the privilege is defeated unless the government provides an adequate substitution. Importantly, however, courts must not engage in any balancing of the government’s interest in nondisclosure against the defendant’s interest in disclosure. As noted, of course, the government may propose substitutions, which may be accepted if fair to
This Memorandum Opinion outlines the legal principles governing the disposition of the government’s second motion pursuant to CIPA § 6(c). A separate classified, sealed order will issue applying the principles elucidated here and setting forth the specific rulings made with respect to the government’s second CIPA § 6(c) motion.
Notes
. 18 U.S.C. § 793 et seq.
. A twelfth hearing day is scheduled for November 7, 2007.
. Hereinafter "NDI.”
. Rosen VII is the seventh of nine published opinions and orders that have issued in this case. This is the tenth. The other eight are as follows:
(i) United States v. Rosen,445 F.Supp.2d 602 (E.D.Va.2006) (Rosen I) (denying defendants’ motion to dismiss the indictment on constitutional grounds);
(ii) United States v. Rosen,444 F.Supp.2d 664 (E.D.Va.2006) (Rosen II) (denying government’s motion to prove an overt act at variance with the indictment);
(iii) United States v. Rosen,447 F.Supp.2d 538 (E.D.Va.2006) (Rosen III) (denying defendants' motion for discovery of FISA materials);
(iv) United States v. Rosen,471 F.Supp.2d 651 (E.D.Va.2007) (Rosen TV) (denying defendants' motion for show cause hearing, sanctions, and dismissal of indictment for alleged violation of grand jury secrecy);
(v) United States v. Rosen,474 F.Supp.2d 799 (E.D.Va.2007) (Rosen V) (denying defendants’ motion to suppress defendants’ statements);
(vi) United States v. Rosen,240 F.R.D. 204 (E.D.Va.2007) (Rosen VI) (denying defendants’ motion pursuant to Rule 15, Fed. R.Crim.P., to take depositions in Israel);
(vii) United States v. Rosen,487 F.Supp.2d 721 (E.D.Va.2007) (Rosen VIII) (denying defendants' motion to dismiss the indictment because of alleged government pressure on AIPAC to cease paying defendants attorneys’ fees); and
(viii) United States v. Rosen,518 F.Supp.2d 798 (E.D.Va.2007) (Rosen IX) (denying defendants’ motion for reciprocal discovery).
.Defendants have since hied further CIPA § 5 notices listing additional classified information that may be disclosed at trial. These notices will be the subject of future CIPA proceedings.
.
See Pinkerton v. United States,
.
See United States v. Bolden,
.
See United States v. Fleschner,
.
Fleschner,
. It is important to note that it became apparent during the course of CIPA § 6(c) hearings that vigorous cross-examination may well lead to disclosure in open court of information sought to be protected by the SWR. This is so because the SWR cannot be employed to force all witnesses to refer to protected information in code throughout their testimony. To be sure, a witness can be instructed to refer to a country named in a document or transcript protected by the SWR as "Country A.” Yet that witness and others may be cross-examined about, inter alia, the scope of their job responsibilities and public domain information without being required to testify in code and, in the course of this, the witness may testify that his job focuses on foreign policy with respect to a specific, named country, which, in turn, would likely lead members of the public to decipher the true identity of "Country A.” See Transcript of CIPA § 6(c) Hearing, United States v. Rosen, l:05cr225, at 94-101 (E.D.Va. Aug. 16, 2007).
.
United States v. Fernandez,
. NDI is information that is closely held by the government and potentially harmful to national security if disclosed. See supra Part II.B.
. Such a limiting instruction might appropriately state that the jury may not infer from document markings indicating that the document is "Secret” or "Classified” that the information contained therein was in fact closely held and was therefore NDI, but may consider these markings for the limited purpose of showing that the government attempted to hold the documents closely.
. Here, for instance, the government intends to show its experts the full, unredacted forms of documents that have been subject to the CIPA § 6(c) process, while claiming that it is appropriate to limit the access of defendants’ experts to the redacted and substituted forms of the same documents.
. See United States v. Moussaoui,
.
See Zettl,
.
See United States v. Felton,
. There is no legislative history directly addressing the SWR. Defendants cite statements in the legislative history, including private citizen statements expressing a general desire to preserve public trials. These general statements are not a sound, reliable basis for concluding that Congress intended in CIPA to preclude the use of the SWR. To conclude otherwise would logically lead to prohibiting all partial trial closings in any context, a result clearly at odds with precedent. See supra notes 16-17 and infra note 19.
.
See, e.g., Carson v. Fischer,
. In the government's first motion pursuant to CIPA § 6(c), it requested the use of the SWR for eighteen minutes and twenty-four seconds (18:24) of recorded conversations and thirty-six documents. By contrast, in its second motion, the government reduced its request to six minutes and forty-five seconds (6:45) and one document. During the course of the § 6(c) hearings, the use of the SWR was approved for only four minutes and six seconds (4:06), out of a total of four hours, thirteen minutes and fifty-one seconds (4:13:51) of recorded conversations.
.
See, e.g., Rogers v. Tennessee,
. The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a ... public trial.” U.S. Const, amend. VI.
. At oral argument, the government argued that a court lacks discretion to reject the SWR unless defendants establish a specific need for disclosure of the information to be protected by the SWR. This is incorrect. First, it is clear that, under
Press-Enterprise,
the party seeking a trial closure bears the "weighty” burden of establishing the elements necessary to support the closure.
Press-Enterprise,
.
See, e.g., United States v. Libby,
. It is hard to see any difference, as a practical matter, between information that is "relevant and helpful” to the defense, in which case it is clearly material to the defense, and information that is "essential” to the defense.
See Smith,
.
Cf. Fernandez,
. While the Fourth Circuit in
Moussaoui
found the testimony subject to the government’s privilege was "essential” to the defense, the court did not indicate that such a finding was required to overcome the privilege. Rather, after citing the
Roviaro
"relevant and helpful” or "essential to a fair determination” standard, the court found that the defendant had shown the testimony was essential to the defense. Put differently, the showing of essentiality was more than sufficient,
i.e.,
more than what was required, to overcome the government’s privilege.
See Moussaoui,
.This is arguably a shift from
Smith,
which may be read as limiting the privilege's protection to the government’s means and methods of gathering intelligence.
See Smith,