April 2007 — Federal Court Provides Public and Media Access to Trial of Two Lobbyists Charged with Disclosing Classified Information in Violation of Espionage Act

On April 16, 2007, the U.S. District Court for the Eastern District of Virginia denied the government's request to prevent the public and press from seeing and hearing portions of evidence presented to the jury in United States v. Rosen. NAA participated in a motion to intervene in March 2007. The case involved two former lobbyists for the American Israel Public Affairs Committee (AIPAC) indicted in 2005 for allegedly receiving classified information related to national defense in conversations with government officials, and for allegedly disclosing the information to AIPAC colleagues, an Israeli Embassy official, and a reporter. U.S. District Judge T.S. Ellis III said the Classified Information Procedures Act of 1980 does not authorize procedures to deny public access to classified information that is presented to the jury. In an oral ruling from the bench, the judge stressed the importance of openness for promoting public confidence; and for deterring witness perjury, judicial partiality, and prosecutorial overreaching. He said, “Justice must be seen to be done.”

Steven J. Rosen and Keith Weissman, former lobbyists for the American Israel Public Affairs Committee (“AIPAC”), were indicted in August 2005 for allegedly receiving classified information related to national defense in conversations with government officials, including Pentagon employee Lawrence A. Franklin; and for allegedly disclosing the information to AIPAC colleagues, an Israeli Embassy official and a Washington Post reporter. The information reportedly pertained to Middle East terrorism and American policy options. Franklin, who warned Weissman that the information was highly classified, was sentenced in January 2006 to 12 years and seven months in prison for giving the classified information.

Rosen and Weissman were accused of violating the 1917 Espionage Act by orally receiving, unlawfully possessing and orally retransmitting national defense information to unauthorized individuals where the information reasonably could be believed potentially to injure the United States or to advantage a foreign nation. The case reportedly was the first prosecution of non-government employees under the Espionage Act for receiving leaks from a government official.

Rosen and Weissman argued that, as applied to them, the statute was unconstitutionally vague in violation of the Fifth Amendment due process clause and violated their First Amendment rights to free speech and to petition the government. They also argued the statute was overbroad and should be interpreted to apply only to transmission of tangible items such as documents, discs or tapes.

U.S. District Judge T.S. Ellis III of the U.S. District Court for the Eastern District of Virginia denied a motion of the Reporter's Committee for Freedom of the Press to file an amicus curiae brief. On August 9, 2006, he held the Espionage Act constitutional, because it confined the term “national defense” to matters involving national security and imposed strict scienter requirements as a condition for criminal liability, but he found the application of the Espionage Act to be unprecedented and urged Congress to review and revise the Act in light of changes in national and world affairs since its drafting in 1917. Trial was set for June 4, 2007. In December 2006, the court set a hearing for March 15, 2007, to address issues under the Classified Information Procedures Act of 1980, 18 U.S.C. App. III Sections 1-16, which guides the use of classified information in criminal prosecutions.

On March 12, 2007, the court clerk docketed a motion by the defendants “to Strike the Government's Request to Close the Trial.” The court suspended the CIPA review and specified that the March 15 hearing would address the defendants' challenge to the government's proposed trial proceedings.

Prompted in part by the March 12 docket activity, on March 13, 2007, a media coalition formed by the Reporter's Committee and joined by NAA filed a motion to intervene in relation to the government's requests to close the upcoming trial or to restrict public or press access. The coalition asked to review the government's request and defendants' opposition, and to argue on closure and sealing. The coalition asserted that a news organization seeking to intervene must be afforded prompt and full hearing and failure to do so renders “a closure of proceedings invalid,” citing In re Associated Press (“Moussaoui”) , 172 Fed. Appx. 1 (4 th Cir. 2006); Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982); Rushford v. New Yorker Magazine, Inc., 846 F.2d 249 (4 th Cir. 1988). Before a proceeding is sealed, the brief noted, criteria to be met include adequate notice to the public, opportunity for interested persons to be heard, and, if sealed, a statement of the court's reasons. As established in Moussaoui , Rushford , and In re Washington Post Co. , 807 F.2d 383 (4 th Cir 1986), the First Amendment guarantees the public and the media the right to attend criminal trials that may be abridged only if full and open hearing establishes a compelling government interest that closure is narrowly tailored to serve and that cannot otherwise be protected.

At the March 15 hearing, which was open to the public, Judge Ellis stated that the government's request was not to close the entire trial, but to have certain portions involving classified information conducted using a process that would only allow the court, parties, counsel and jury to see and hear (such as closed portions or closed circuit audio). The court scheduled the government's closure motion for briefing in late March/early April and for public hearing on April 16. Judge Ellis ordered that briefs on the closure issue be filed publicly, with only necessary redactions for classified information. He directed the Court Security Officer to review the docket to determine whether sealed materials could be unsealed. He said the CIPA review would continue in parallel closed proceedings. In light of these rulings, he denied the media coalition's motion to intervene as “moot and without prejudice.” However, he invited the media coalition to revisit the issue of public access as the case proceeded.

On April 13, Judge Ellis denied the media coalition's motion to intervene, because he deemed the facts and arguments to be adequately set forth in the parties' briefs. Three days later, media coalition representatives attended the April 16 hearing. There, the court denied the government's request to utilize trial procedures to prevent the public and press from seeing and hearing portions of evidence presented to the jury. Judge Ellis said that CIPA does not authorize procedures to deny public access to classified information that is presented to the jury, and, even if it did, the procedures proposed by the government would be unconstitutional under Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984). In an oral ruling issued from the bench, the judge stressed the importance of openness in the judicial process for promoting public confidence; and for deterring witness perjury, judicial partiality, and prosecutorial overreaching. He said, “Justice must be seen to be done.” Though the coalition view was that the press may intervene as of right, and not merely on behalf of a particular party as amicus, the decision was to refrain from appealing the denial of motion to intervene, due to reasons the court expressed for denying the motion and to the favorable outcome on the merits.

First Published:
April 01, 2007