Politico on October 3, 2011 released the following:
By Josh Gerstein
“A federal judge has ruled that prosecutors pursuing a leak case against a former Central Intelligence Agency officer may present evidence to the jury that will not be seen by the public.
U.S. District Court Judge Leonie Brinkema ruled in an order made public Friday that prosecutors may use a controversial procedure known as the “silent witness rule” to present three classified exhibits during the upcoming trial of former CIA officer Jeffrey Sterling. Sterling is set to go on trial later this month in Alexandria, Va. on a ten-count indictment charging him with leaking information about a highly-classified CIA program to New York Times reporter James Risen.
In response to pleas from the White House, Risen’s editors at the Times never published details of the program, which was aimed at undermining Iran’s nuclear efforts by giving that country flawed nuclear designs. However, Risen revealed the program in his 2006 book, “State of War.”
Under the “silent witness rule,” a document is shown to jurors, the defendant, the judge and the jury, but not to the public. Witnesses may refer to the documents in general terms, but do not read from them. The procedure has been used in several trials, but its constitutionality is not firmly established.
Brinkema’s order (posted here) does not provide any rationale for her decision, but tersely indicates that the prosecution will be allowed to use the “silent witness” procedure to present what a prosecution filing describes as “three CIA operational documents, all marked ‘secret,’ relating to the use of telephones.” The judge deferred ruling on a fourth document prosecutors wanted to present through the procedure, a CIA personnel evaluation report for Sterling for 1993.
All four documents were recovered in an FBI raid of Sterling’s home in Missouri in 2006. CIA rules prohibit employees from taking classified documents home without express permission, prosecutors contend.
Sterling is not charged with leaking information from the four documents to Risen. Prosecutors want to show that it is likely that Sterling had similar documents at home that he leaked to or discussed with Risen.
Prosecutors have argued that denying the public access to the evidence is necessary to safeguard national security secrets and will be of little significance since the prosecution’s questioning about the documents is likely to last only five to ten minutes. (Their motion is posted here.)
Sterling’s defense team has been hostile to the proposal. “Use of the silent witness rule in this case would seriously prejudice Mr. Sterling and totally eviscerate his right to a fair trial,” defense lawyers Ed MacMahon Jr. and Barry Pollack wrote in a recent court filing (posted here).
Press advocates have also expressed concern about the use of the technique. However, none has intervened in Sterling’s case.
The issue was apparently argued in closed-door hearings held by Brinkema in recent weeks.
One twist in the judge’s order could complicate the issue further. She denied a prosecution request to make some deletions in the documents. If the CIA is skittish about showing the entirety of the documents to jurors, prosecutors might have to drop the evidence altogether.
In another ruling in the same order, Brinkema denied the defense’s request to call a Russian nuclear scientist key to the CIA’s attempt to snooker the Iranians. She also offered no explanation for that decision.
Sterling’s trial is set to open October 17. Brinkema ruled in July that Risen would not have to identify his confidential source or sources at the trial. However, prosecutors have asked her to reconsider that ruling.”
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