Josh Gerstein of Politico reported that U.S. District Court Judge Leonie Brinkema approved the Justice Department's use of the constitutionally-questionable "silent witness rule" in the Espionage Act case against former Central Intelligence Agency (CIA) official Jeffery Sterling.
The controversial "silent witness rule" is an impediment to a defendant's constitutionally-guaranteed right to a public trial. The silent witness rule allows the witness, judge, jurors and attorneys to see evidence, but requires attorneys to question witnesses about the secret evidence in a secret code. Members of the press or public attending the trial will not understand what is happening in a supposedly "public trial."
Sterling's attorneys opposed use of the silent witness rule:
. . . the silent witness rule and the other security measures that the Government seeks to use are highly prejudicial to Mr. Sterling and deprive him of his right to a fair trial and violate his confrontation rights as guaranteed by the United States Constitution.
The Justice Department also tried use the silent witness rule in the case against National Security Agency (NSA) whistleblower Thomas Drake, but the Justice Department's case collapsed in a glaring defeat before the Judge could rule on the silent witness rule motion.
In past rulings in the Sterling case, Judge Brinkema showed real judicial independence and strength in rebuffing the Justice Department's repeated attempts to subpoena reporter and author James Risen to testify about his sources. Brinkema does not explain her ruling on the silent witness rule, but Politico reports that the holding:
. . . 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." . . . [and Brinkema] denied a prosecution request to make some deletions in the documents.
This is hardly an enthusiastic endorsement from Brinkema. Nor should it be. Brinkema is right to be wary of the Justice Department's assertions of danger to national security if documents are shown publicly.
In the Drake case, the Justice Department repeatedly trotted out "national security" to limit Drake's rights, and even used "national security" as the less-than-believable excuse for dropping the prosecution against Drake. Even former George W. Bush classification czar J. William Leonard didn't buy into the hysterics. After the government's case imploded, Leonard wrote that the documents Drake was accused of retaining "never should have been classified in the first place," and filed a complaint requesting disciplinary action against the NSA and Justice Department officials who "overclassified" the documents.
Jesselyn Radack is National Security and Human Rights Director for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.