## Facts

- The United States prosecuted Steven J. Rosen and Keith Weissman, former employees of the American Israel Public Affairs Committee, for conspiracy and related offenses involving communication of national defense information to unauthorized persons under 18 U.S.C. § 793.
- The indictment alleged the defendants cultivated government sources, obtained national defense information, and disseminated it to unauthorized recipients, including journalists and foreign officials.
- Before trial, defendants provided notice under the Classified Information Procedures Act (CIPA) of their intent to use classified information and challenged the government’s proposed substitutions and handling of classified material.
- The government moved under CIPA § 6 to use an “expanded” silent-witness procedure at trial: the judge, jury, counsel, and witnesses would see unredacted classified materials, while the public would receive redacted exhibits and hear only coded references to classified portions.
- Defendants opposed the motion, arguing CIPA did not authorize the procedure and that it would violate the Sixth Amendment public-trial right and the First Amendment public access right.

## Issues

1. Whether CIPA authorizes a silent-witness procedure as a method of presenting classified evidence at trial.
2. Whether an expanded silent-witness procedure constitutes an unconstitutional closure of criminal proceedings under the Sixth Amendment and the First Amendment.
3. What findings and limits are required before restricting public access to classified trial evidence and testimony.

## Decision

- The court held that CIPA does not, by itself, supply stand-alone authorization for a silent-witness procedure as a default trial mechanism; trial presentation limits remain governed by constitutional openness requirements.
- The court held a silent-witness procedure is not per se unconstitutional but functions as a partial closure requiring strict safeguards.
- The court granted the government’s motion in substantial part only for a limited, modified silent-witness procedure applicable to particularly sensitive classified items.
- The court rejected broad, categorical, or routine use of silent-witness methods and required further item-specific showings and on-the-record findings before use at trial.
- The court required measures aimed at preserving maximum public access consistent with security and ensuring the defense could fully present its case to the jury.

## Legal Principles

- CIPA primarily governs pretrial management of classified information (including in camera hearings and substitutions) and does not displace constitutional limits on restricting public access at trial.
- Criminal trials are presumptively open; any closure or functional closure must be supported by an overriding interest likely to be harmed by openness, be no broader than necessary, consider reasonable alternatives, and be justified by adequate findings.
- Protecting properly classified national security information can qualify as an overriding interest, but restrictions must be narrowly applied and reassessed as needed.
- A silent-witness procedure may be used only when less restrictive options (such as redactions, substitutions, summaries, stipulations, or limited conventional closure) cannot adequately protect the interest at stake.
- Any protective procedure must not materially impair defendants’ ability to confront witnesses, use admissible evidence, and present a complete defense to the jury, even if the public cannot hear classified specifics.

## Conclusion

The court permitted a carefully limited silent-witness procedure for select classified evidence, treating it as a form of partial closure that requires specific necessity, narrow tailoring, consideration of alternatives, and detailed findings, while maintaining the defendants’ ability to litigate the case fully before the jury.


United States v. Rosen, 487 F. Supp. 2d 703 (E.D. Va. 2007)