Graymail - Wikipedia, the free encyclopedia
| Graymail is the threatened revelation of state secrets, in order to manipulate legal proceedings. |
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April 5, 2007 Edition > Section: National
BY JOSH GERSTEIN - Staff Reporter of the Sun
April 5, 2007
A government proposal to limit public access to evidence in the trial of two pro-Israel lobbyists is constitutional and represents a reasonable attempt to safeguard classified information, prosecutors argued in a brief filed last week in federal court in Virginia.
The prosecution rejected claims by attorneys for the two lobbyists, Steven Rosen and Keith Weissman, that giving jurors headphones to listen to recordings not played aloud in the courtroom would violate the Sixth Amendment guarantee to a public trial.
"This will not be a ‘secret trial.' The government has a strong interest in ensuring that the defendants' conduct in this case, their conspiracy to obtain and disclose our nation's secrets is presented in open court," prosecutors wrote in a 30-page brief filed last week. The prosecution said it planned to release edited tapes or transcripts of the intercepted conversations and to give the public summaries or "substitutions" for the deleted materials.
Messrs. Rosen and Weissman, who worked for the American Israel Public Affairs Committee, are charged with conspiring to obtain closely held national security information and to distribute it to American reporters and foreign diplomats. The case has prompted concern among press advocates, who contend that there is little functional difference between what the lobbyists allegedly did and what many journalists do on a daily basis.
The defense has objected to the procedures as unconstitutional and unworkable. News organizations are also resisting any effort to draw a curtain of secrecy around the trial, which is set to begin in June.
At a hearing last month, Judge Thomas Ellis III said the government's proposal was unusual, to say the least. "As far as I'm aware … there is no precedent for this procedure," the judge said. He also indicated that the volume of information the government was seeking to withhold or replace could be a problem if it is not whittled down.
A law professor and longtime press advocate, Jane Kirtley of the University of Minnesota, took issue with the government's claim that a trial is public even when those in the gallery can't follow the proceedings. "Just letting everyone into the courtroom is going to be of marginal utility if they can't hear anything," she said.
An attorney who specializes in classified evidence procedures, John Cline, said he is dubious about an aspect of the government's plan that calls for the use of special codes during questioning and cross-examination of witnesses. "You just can't do that if you've got a system of codes and numbers replacing people and letters replacing places," he said. "Even if the jury can follow along because they've got the key, it just becomes incomprehensible."
Mr. Cline said the restrictions could also make a defendant or another witness look shifty when he is just trying to obey the restrictions. "If he's got to talk in code or follow a script that the government or the judge approved … it makes it difficult for the jury to assess his credibility," the attorney said.
The government's filing notes that procedures issued by Chief Justice Burger in 1981 indicate that jurors may have access to classified evidence and that, after a trial concludes, judges can give jurors a "cautionary instruction" against disclosing classified information.
In the Aipac case, the jury-related issues could be particularly tricky. Telling jurors in advance that they might be sworn to secrecy could undercut the defense's argument that the information is innocuous. Telling them afterward could be seen as unfair.
"The general notion that you can retroactively gag someone is not something that has a lot of currency in U.S. law," Ms. Kirtley observed.
Prosecutors contend that the defense's objections amount to "graymail," a practice by which defendants try to undercut the prosecution by threatening the disclosure of highly classified information.
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