EASTERN DISTRICT OF VIRGINIA
                                       Alexandria Division

                  UNITED STATES OF AMERICA,          )
                                         Plaintiff,  )
                        v.                           )    CRIMINAL ACTION
                  STEVEN J. ROSEN,                   )    1:05 CR 225
                  KEITH WEISSMAN,                    )
                                         Defendants. )

                                      REPORTER'S TRANSCRIPT

                                         MOTIONS HEARING

                                      Monday, April 16, 2007


                  BEFORE:       THE HONORABLE T.S. ELLIS, III

                                BY:  KEVIN DIGREGORY, AUSA
                                     NEIL HAMMERSTROM, AUSA
                                     THOMAS REILLY, SAUSA (DOJ)
                                     MICHAEL MARTIN, SAUSA (DOJ)

                                   For the Government


                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR
                                     Official Court Reporter
                               USDC, Eastern District of Virginia
                                       Alexandria, Virginia

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     APPEARANCES (Continued):

            2                  ABBE LOWELL, ESQ.
                               ERICA PAULSON, ESQ.
                                  For Defendant Rosen
                               JOHN NASSIKAS, ESQ.
            5                  KAVITHA BABU, ESQ.
                               KATE BRISCOE, ESQ.
            6                  BARUCH WEISS, ESQ.

            7                     For Defendant Weissman


















                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                                 INDEX


            3     RECAPITULATION BY THE COURT                              5

            4     RULING BY THE COURT                                      7

            5     FURTHER PROCEEDINGS                                     46

                        (Court recessed)


















                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                              PROCEEDINGS


            3                  (Court called to order at 2:07 p.m. in USA v.

            4     Rosen, Weissman)

            5                  THE CLERK:  1:05 Criminal 225, United States

            6     versus Rosen and Weissman.

            7                  Would counsel please note your appearances?

            8                  THE COURT:  All right, for the record,

            9     Mr. Reilly, you're here for the government?

           10                  ATTORNEY REILLY:  That's correct, your Honor.

           11     I'm here with Kevin DiGregory and Neil Hammerstrom from the

           12     United States Attorney's Office, and Michael Martin from the

           13     Counterespionage Section at the Department of Justice.

           14                  THE COURT:  All right.  Good afternoon to you.

           15                  And for Mr. Rosen?

           16                  ATTORNEY LOWELL:  Good afternoon, your Honor.

           17     Abbe Lowell and Erica Paulson on behalf of Dr. Rosen.

           18                  We want to note, your honor, as we have filed

           19     our appellate case, Rosen has gone over to the other side.

           20                  THE COURT:  Where -- where has he gone?

           21                  ATTORNEY LOWELL:  He has gone back from whence

           22     he came, to be head of the Division of the United States

           23     Attorney's Office in District of Delaware.

           24                  THE COURT:  I see.

           25                  ATTORNEY LOWELL:  And our colleague,

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     Scott Balbert, from New York would be here to have been

            2     introduced, but every plane and every train has been

            3     canceled, apparently, today.

            4                  THE COURT:  Is that right?

            5                  ATTORNEY LOWELL:  Almost every one this morning

            6     was canceled, yes.

            7                  THE COURT:  Must be the wind.

            8                  ATTORNEY LOWELL:  Yes, it was.

            9                  THE COURT:  All right.  Thank you, Mr. Lowell.

           10                  Mr. Nassikas, you're here for Mr. Weissman?

           11                  ATTORNEY NASSIKAS:  Yes, your Honor.

           12                  THE COURT:  But Mr. Weiss is still here.

           13                  ATTORNEY NASSIKAS:  Yes, Mr. Weiss is here.

           14                  Ms. Briscoe, Kate Briscoe, and Kavitha Babu on

           15     behalf of Keith Weissman.

           16                  THE COURT:  All right.  Thank you.

           17                      RECAPITULATION BY THE COURT

           18                  THE COURT:  All right.  This matter was

           19     scheduled today with respect to the defendant's motion to

           20     strike the government's request for a proposed procedure to

           21     be used in connection with certain classified material, and

           22     This is an open hearing.

           23                  I received two requests to intervene, but the

           24     Reporters' Committee for -- well, a whole Bunch of folks --

           25     Reporters' Committee For Freedom of the Press, ABC,

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     et cetera, et cetera, et cetera.  And also AMCHA, the

            2     coalition for Jewish concerns.

            3                  I have denied both requests to participate as

            4     amicus in this case, because I have found that the parties'

            5     briefs adequately present the issues and the arguments, and

            6     that the further participation by the amicus parties would

            7     not aid the decisional process.

            8                  Similarly, I have reached the conclusion that

            9     oral argument would not aid the decisional process, and I

           10     have decided the matter.  While I have not yet completed the

           11     memorandum opinion, I'm going to render my decision orally

           12     now from the bench.  The -- this is --

           13                  ATTORNEY LIEBERMAN:  Excuse me, your Honor.

           14                  THE COURT:  Yes?

           15                  ATTORNEY LIEBERMAN:  My name is Steven

           16     Lieberman --

           17                  THE COURT:  I've ruled.

           18                  ATTORNEY LIEBERMAN:  I understand, your Honor.

           19     I'm asking your Honor to reconsider --

           20                  THE COURT:  I have.

           21                  ATTORNEY LIEBERMAN:  -- the ruling in light of

           22     two Fourth Circuit cases.

           23                  THE COURT:  I have ruled.

           24                  ATTORNEY LIEBERMAN:  Thank you, your Honor.


                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                          RULING BY THE COURT

            2                  THE COURT:  This is an Espionage Act

            3     prosecution.  It involves substantial amounts of classified

            4     information.  The government contends this information, much

            5     of it, is national defense information, and it seeks to

            6     avoid public disclosure of this material in the course of

            7     the trial.

            8                  Now, at the outset I think it is important to

            9     keep in mind that there is a distinction between classified

           10     material and NDI.  Those sets may not be coextensive.

           11                  The Executive Branch, pursuant to regulations,

           12     of course, may classify material in various categories and

           13     may take appropriate measures to protect that information

           14     from disclosure.  That's classified material.

           15                  In contrast, national defense information is a

           16     statutory term.  It's an element of an Espionage Act

           17     violation.  To qualify as NDI, information must meet a

           18     number of requirements, including that it be closely held

           19     and potentially damaging to national security if disclosed.

           20                  Other opinions that I've written in this case

           21     make clear the role that the element of NDI plays in this

           22     case.

           23                  In any event, it's possible that the set of

           24     classified information may not be coextensive with NDI.  In

           25     other words, all material that the Executive Branch

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     classifies is -- is not, ipso facto, NDI.  The government

            2     must prove beyond reasonable doubt that it's NDI, as I have

            3     written about before.  Classified status may be probative of

            4     whether something is NDI, but it's only a factor.  It's not

            5     conclusive.

            6                  I'm not going to summarize the allegations of

            7     the superseding indictment, but it's sufficient to say that

            8     both of these defendants are charged with conspiracy to

            9     communicate NDI to persons not authorized to receive it.

           10     And one of the defendants, Rosen, is additionally charged

           11     with aiding and abetting an alleged coconspirator, Lawrence

           12     Franklin, in making unauthorized communications of NDI to

           13     persons not authorized to receive it.

           14                  Essentially, what the factual context is, is

           15     that over the course of several years these defendants, as

           16     members of their lobbying organization, cultivated sources

           17     of information within the government.  And the superseding

           18     indictment suggests they obtained NDI from these sources,

           19     and then disseminated the NDI to persons not authorized to

           20     receive it, including coworkers, foreign government

           21     officials, journalists and others.  There are more complete

           22     recitation of the allegations in the various opinions that

           23     I've previously written.

           24                  Now, because the prosecution involved

           25     classified material, or it does involve classified material,

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     CIPA governs the use of the material at trial.  And the

            2     purpose of CIPA, of course, is to provide a process that

            3     harmonizes the defendants' right to obtain and present

            4     exculpatory material, and the government's right to protect

            5     classified information.  And I think it is useful, as both

            6     preface and context, for the Court to recite briefly what

            7     the CIPA procedures have been so far in this case.

            8                  Well, there was a pretrial conference held

            9     pursuant to Section 2, and protection orders issued pursuant

           10     to CIPA Section 3.  I think there were a couple of

           11     protective orders that were in this public order.  I think

           12     one protective order is sealed.  November 15th, I believe,

           13     is sealed.  In any event, following entry of these orders,

           14     discovery proceeded as authorized by the Federal Criminal

           15     Procedure and CIPA Section 4.

           16                  Then, pursuant to CIPA Section 5, defendants

           17     gave notice, as required, of their intention to introduce at

           18     trial a substantial amount of material they reasonably

           19     expected might disclose or cause the disclosure of

           20     classified material.

           21                  And as I said, this notice listed a large

           22     volume of material.  This is so, in part, because the

           23     indictment alleges a number of distinct elements of NDI

           24     covering a range of distinct subjects, and in part because

           25     defense counsel cannot know whether the government might

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     assert that certain materials defendants propose for use at

            2     trial would be classified or would cause disclosure of

            3     classified information.

            4                  So the next step in the CIPA process was a

            5     hearing requested by the government pursuant to CIPA Section

            6     6(a), at which the Court would begin the process of making

            7     determinations concerning the use, relevance or

            8     admissibility of classified information that would otherwise

            9     be made during the trial.

           10                  I think in the course of those I would

           11     occasionally grouse about the need, or the statutory

           12     necessity, essentially, to try a case in excruciating detail

           13     before it's tried.  But that's what the law required,

           14     that -- and understandably and reasonably -- that these

           15     determinations have to be made in this hearing.

           16                  In the course of the hearings, some of the

           17     potentially classified material defendants sought to be used

           18     at trial was ruled irrelevant and inadmissible by the Court,

           19     pursuant for Rules 402 and 403, while still a quite

           20     substantial volume of material considered to be classified

           21     or to cause the disclosure of classified material was ruled

           22     relevant and admissible.

           23                  And an order entered to that effect.  It's a

           24     sealed order.

           25                  This hearing, and the rulings that grew out of

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     it, began, but didn't complete, the Section 6 process.  A

            2     further hearing is now required pursuant to Section 6(c), at

            3     which the government would be afforded an opportunity either

            4     to declassify material ruled relevant and admissible at

            5     trial, or, alternatively, to move that, in lieu of

            6     disclosing the classified information, that the government

            7     be allowed to substitute for such classified information a

            8     statement either admitting certain relevant facts that the

            9     classified information would tend to prove, or a summary of

           10     the specified classified information.

           11                  The government has filed such a motion with

           12     respect to a substantial volume of the classified

           13     information ruled relevant material.  And the Section 6(c)

           14     hearings now scheduled for Thursday at 2:00 o'clock will be

           15     a closed hearing, as the government has so requested, and

           16     CIPA provides that any such hearing shall be held in camera

           17     at the request of the attorney general.

           18                  Now, the defendants for their part contest the

           19     substitution advanced by the government for approximately 38

           20     to 40 government documents, a number of public source

           21     documents, and a number of recordings.

           22                  Now, should the government's motion for

           23     substitutions under CIPA 6(c) fail, the government may still

           24     object to disclosure of the classified information at issue.

           25     And if the government does so, the information may not be

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     disclosed.  But the Court may dismiss the indictment in

            2     whole or in part, or find against the United States on any

            3     issue as to which the classified information relates or

            4     preclude a witness' testimony.  That's part of

            5     Section 6(c) -- (e) of CIPA.

            6                  Now, it bears emphasis here that CIPA does not

            7     authorize a trial judge to second-guess the government's

            8     decision to classify information, nor does it authorize a

            9     trial judge to conclude that the information isn't damaging

           10     to national security if revealed.

           11                  The only place a trial judge can make that

           12     determination is on a Rule 29 basis after the government's

           13     case-in-chief, if the Court finds that the government has

           14     not proved that the information is NDI.  And that would have

           15     to be very specific.

           16                  In other words, I might find that the Rule 29

           17     motion would have to be granted, but I still might not reach

           18     that conclusion based on disclosure.  In any event, it

           19     doesn't matter.  That's irrelevant to what I'm considering

           20     today.

           21                  What I do want to point out is that CIPA

           22     doesn't authorize trial judges to second-guess the

           23     government's decision to classify material or to conclude

           24     that the material really isn't damaging to the national

           25     security if disclosed.

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  The CIPA 6 inquiry, 6(c), is simply to

            2     determine whether the proposed substitution affords the

            3     defendants substantially the same ability to make a defense

            4     as the specific classified information.

            5                  Now, that's the section -- that's the CIPA

            6     process and where we are in it.

            7                  In addition to that, the government has now

            8     proposed a procedure for handling classified material at

            9     trial, and it is this proposal that is at issue on the

           10     defendants' motion to strike.

           11                  I think it is fair to say that the government's

           12     proposal is novel.  No published opinion has been found or

           13     cited in which the precise procedure in its scope in this

           14     kind of context has been judicially approved or used.

           15                  Now, simply put, what the government proposes

           16     here is that while the jury, the Court, and counsel will,

           17     for the most part, have access to the unredacted classified

           18     information, the public will not.  Instead, the public, in

           19     the course of the trial, will see and hear only the

           20     substitutions that may have passed through the Section 6(c)

           21     process.

           22                  In other words, in putting to one side the

           23     non-insubstantial practical problems inherent in conducting

           24     a trial pursuant to this procedure, its use would appear to

           25     exclude the public from substantial and critical parts of

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     the trial.

            2                  Now, this result is evident from a more

            3     detailed description of the proposed procedure.  The

            4     government's proposed procedure is, in effect, a variant and

            5     a substantial expansion of the so-called Silent Witness

            6     Rule, a rule that has been used and judicially approved in

            7     certain, but not all, circumstances.

            8                  And I'll come to more about that later.  I'll

            9     just say here that the Fourth Circuit itself in the Zeddle

           10     case coined the term, "the Silent Witness Rule," and

           11     permitted its use in a limited circumstance.

           12                  But unlike the procedure used in Zeddle, the

           13     procedure proposed in this case would be used for all

           14     classified material in both the government's case and the

           15     defense case.  And also, I don't think the procedure in

           16     Zeddle really involved giving the jury something different

           17     from the public.

           18                  As noted, the effect of using the procedure in

           19     this case -- and I'll say more about this in a moment --

           20     will be the exclusion of the public from substantial and

           21     important portions of the trial.

           22                  Now, the proposed procedure would work as

           23     follows.  For each classified document discussed at trial,

           24     the Court, witness and counsel and the jurors would have the

           25     document, classified document, in front of them, either in

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     paper form or via screens viewable only by those persons.

            2     Actually, that would be a little hard in this courtroom, but

            3     it may not be this courtroom in which the case is tried.

            4                  In any event, when a counsel or witness wishes

            5     to direct the jury to a classified portion of the document,

            6     counsel and the witness would refer to a page number and a

            7     paragraph and line numbers, and the Court and opposing

            8     counsel and the jury would follow along, but not the public,

            9     as it would be unaware of this specific referenced

           10     information.

           11                  And presumably, the witness who's answering the

           12     question about the document would not be permitted to refer

           13     to the specific language or the information in the document,

           14     except by use of location or certain codes.

           15                  For example, to rebut the government's

           16     contention that certain material is NDI, defendants will

           17     likely wish to call witnesses to compare various public

           18     source documents with the alleged NDI.  To do so effectively

           19     may well require the witness to refer to specific language

           20     or contents of both the public source document and the

           21     alleged NDI.

           22                  Now, the government has anticipated this, and

           23     they propose that -- or it proposes that the witness would

           24     not speak the names of certain specific countries, foreign

           25     persons, or other things, but would instead use a code,

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     "Country A," "Report X," "Foreign Person Y," "Foreign

            2     Person Z" and the like.  That code would be provided to

            3     counsel, the Court and the jury.

            4                  The system of codes would change, moreover, to

            5     reflect with respect to different alleged overt acts

            6     disclosing -- of disclosing classified information

            7     presumably to prevent the public from inferring the meaning

            8     or discerning the meaning of the code that's being used.

            9                  For example, if a witness discussing a

           10     particular alleged disclosure is instructed to refer to --

           11     the first time I wrote this, I wrote in "New Zealand."

           12     Somehow or other, over yesterday and last night and today,

           13     that has, that has progressed to "Monaco."  Obviously, I

           14     don't want anyone to draw any inferences from that, except

           15     that I do have a yen some day to visit New Zealand, and I've

           16     enjoyed a visit to Monaco.

           17                  So the code -- when a witness discussing a

           18     particular alleged disclosure is instructed to refer to

           19     Monaco as Country A, a different witness, or maybe even the

           20     same witness, discussing another alleged disclosure might

           21     use "Country B" or "C" to refer to New Zealand or Monaco.

           22                  Likewise, when recordings discussing classified

           23     information are played, the government proposes that the

           24     Court, counsel, the witness and the jury listen on special

           25     headphones to the entire recording.

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  The public, however, would not hear the full

            2     recording.  Instead, the recorded conversations would be

            3     played aloud in the courtroom, but when the recording comes

            4     to classified information, the public version would revert

            5     to static, which can be done in this courtroom (indicating).

            6     Also, the public would have, of course, redacted transcripts

            7     available in the record.

            8                  In sum, the novel and distinctive feature, as I

            9     see it, of the government's proposed procedure is that the

           10     public is effectively walled off from seeing and hearing

           11     everything the jury, the Court, the attorney and the

           12     witnesses see and hear.  What the public does not see or

           13     hear is at the heart of this case, namely the classified

           14     material the government claims is the NDI that the

           15     defendant's allegedly received and distributed without

           16     authorization.

           17                  Now, a further related novel and distinctive

           18     feature of the government's proposal relates to the jury.

           19     Although jurors will see and hear classified information, of

           20     course they will not have security clearances.  Security

           21     clearances are very time-consuming and extensive procedures.

           22     So far as I'm aware, I have never heard of a jury being

           23     cleared for classified material.

           24                  So it has never been done, to my knowledge or

           25     based on my research.  And, as I say, the reason for this is

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     obvious, that it takes a lot of time and efforts to require

            2     that.  There may be other materials, I don't know if it's

            3     constitutional to exclude people because they can't pass

            4     security, security tests or investigations.

            5                  The government's remedy, however, for this

            6     anomaly -- that is, to have the jurors hear classified

            7     information while not being cleared for it -- is to have

            8     them instructed that they cannot disclose to anyone the

            9     classified material they will see and hear during trial.

           10                  Interestingly, there is some authority for

           11     that.  I found it in Section 6 of the security procedures

           12     established by the Chief Justice in 19- -- I don't have the

           13     date.  I think it was 1980-something.  But in any event, it

           14     appears -- I'll have the full citation of it in the

           15     memorandum opinion that I publish.  I'm sure that counsel

           16     are aware of it.

           17                  In any event, that description, I think,

           18     furnishes an adequate preface.

           19                  You don't need to find it.  I'm not interested

           20     in it right now.  We all know it exists.  Although I can

           21     tell you I was surprised, to some extent, to find it.

           22                  In any event, the description of the proposal,

           23     I think, now gives us a basis for considering the following

           24     questions about the procedure that are raised by the

           25     government's motion to strike:  First, whether the

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     government's proposed procedure is either explicitly or

            2     implicitly authorized by CIPA; and secondly, whether the

            3     government's proposed procedure, even if it is authorized by

            4     CIPA, nonetheless impermissibly violates the right to a

            5     public trail by the defendant by the Sixth Amendment, and to

            6     the public by the Fifth Amendment.

            7                  Notice I said "the public," not "the press."

            8     They're just the instruments by which the public gets it.

            9     Too often -- I have friends who are journalists who claim it

           10     to be their right.  It isn't their right.  It's our right,

           11     every member of the public.

           12                  In any event, defendants urge first that the

           13     government's proposed procedure is nowhere authorized by

           14     CIPA, explicitly or implicitly.

           15                  To answer or to consider whether this

           16     conclusion is correct, it's important to focus on CIPA

           17     Section 6(c) and 8(b).  6(c), as I already said, 6(c) allows

           18     the government to move that in lieu of disclosing classified

           19     information, a substitution be used in the form of a summary

           20     or a statement of facts.

           21                  Now, no substitutions can be used, however,

           22     under Section 6(c) unless there is a judicial finding that

           23     the substitution provides defendants with substantially the

           24     same ability to make his defense as would disclosure of the

           25     specific classified information.

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  Consistent with this, CIPA Section 8(b) also

            2     permits the introduction and use at trial of redacted

            3     versions of classified materials, unless the whole ought, in

            4     fairness, be considered.

            5                  So, I think it is plain that neither 6(c) nor

            6     8(b) explicitly authorize or state that substitutions may be

            7     made available to the public and the jury on different

            8     terms.  It seems clear to me to the contrary, that CIPA

            9     envisions that substitutions, if not unfair to the

           10     defendants, will be used at a public trial for both the jury

           11     and the public.

           12                  Put another way, nothing, I think, in CIPA

           13     authorizes, either explicitly or implicitly, closing

           14     substantial portions of the trial from public scrutiny.  At

           15     most, it authorizes use of substitution to avoid disclosure

           16     of disclosure of classified information to the public and

           17     the jury, provided defendants' right to present a fair

           18     defense, a defense, isn't impaired.

           19                  So simply put, the authority to use

           20     substitutions is not the authority to close the trial to the

           21     public.  While it's true, as reflected in CIPA's legislative

           22     history, that Congress has expected trial judges to fashion

           23     creative solutions in the interest of justice for classified

           24     information problems, there is no evidence that Congress

           25     expected this creativity to extend to closure of trials.

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  Even assuming arguendo -- and I do assume

            2     arguendo -- that CIPA allows -- a provision allowing

            3     substitutions might be stretched to encompass the

            4     government's proposed procedure, there is no doubt -- and

            5     I'll come to this in a moment -- there has been an approval,

            6     a judicial approval, of the Silent Witness Rule, indeed, in

            7     the Fourth Circuit.  I'll come to that.

            8                  But even assuming that CIPA is stretched to fit

            9     what is proposed here, there's no doubt that the procedure

           10     here would not past muster under CIPA's fairness

           11     requirements.  Whereas here, a central issue in the case is

           12     whether the government's alleged NDI is indeed NDI, and

           13     the -- and where the proposed procedure would amount to a

           14     wholesale use of the Silent Witness Rule to cover all of

           15     this alleged NDI, it cannot be said that the procedure

           16     affords defendants substantially the same ability to make

           17     their case as would disclosure of the specific classified

           18     information.

           19                  A few examples, I think, help vividly

           20     illustrate this.  It's difficult to get too precise without

           21     disclosing, but I think that some of these examples are

           22     helpful.

           23                  As noted, the government has to prove beyond a

           24     reasonable doubt that the alleged NDI is indeed NDI.  The

           25     government also has to prove beyond a reasonable doubt that

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     the defendants' mens rea.  To this end, the government will

            2     likely invite witnesses to compare the substance of certain

            3     of defendants' e-mails, telephone conservations or faxes

            4     with certain alleged NDI, to show that the defendants had

            5     obtained NDI and were disseminating it without

            6     authorization.

            7                  Defendants may, of course, may wish to show

            8     that lack of similarity between the alleged NDI and what

            9     they obtained and plainly, they would be significantly

           10     hobbled in doing so by the use of the government's proposed

           11     procedure.  The silent comparison of paragraphs and

           12     sentences, even where supplement by codes, would effectively

           13     preclude defense counsel from driving home important points

           14     to the jury.

           15                  It's also apparent that the defendants plan, at

           16     trial, to attempt to rebut the government's claim that

           17     certain material is NDI by having witnesses compare the

           18     alleged NDI to public source material.  Once again, the

           19     proposed procedure would unfairly impact defendants' ability

           20     to establish this defense.

           21                  The Silent Witness Rule in this context

           22     essentially robs defendant of a chance to make vivid and

           23     drive home to the jury their view that the alleged NDI is no

           24     such thing, as essentially similar material was abundant in

           25     the public domain essentially contemporaneously, and that

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     any differences between the public source material and the

            2     alleged NDI are minor or trivial.

            3                  It is hard for me to see how this can be done

            4     in any effective way to the jury without being able to point

            5     to and to argue about specific substantive things.

            6                  Now, suppose the government, let's say, for

            7     example, would call as a witness the coconspirator, the

            8     alleged coconspirator, and he testifies that the defendants

            9     solicited him to provide particular information about

           10     American policy towards Country A, which I previously said

           11     was either New Zealand or Monaco, but of course it may not

           12     be.

           13                  Suppose the government then calls an expert who

           14     testifies that the information the defendants solicited was

           15     NDI, namely that the information, among other things, was

           16     closely held by the government and would damage national

           17     security if disclosed.

           18                  Now, on cross-examination, surely the defense

           19     counsel would want to compare the alleged NDI to the

           20     contemporaneously available sources in the public domain.

           21                  And in this event, let's say a news article is

           22     used directing the jurors and the witness' attention to

           23     information in the article.  It seems fairly antiseptic

           24     simply to say, "Well, how about sentence number four; isn't

           25     that essentially the same as sentence three on this?"

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  And then the witness says, "Well, no.

            2     Country A isn't mentioned.  Instead it's Country C."

            3                  Country A and Country C may be adjoining, and

            4     it may be the same sort of thing.  It's very hard to convey

            5     that, I think, by this process.

            6                  I'm not so sure that it wouldn't be so possible

            7     to do if this were just one occasion, one piece of NDI or

            8     one witness.  But when it is the heart of the case that

            9     spreads across the entire case, I'm persuaded it cannot be

           10     done effectively.

           11                  It seems clear that questions attempting to

           12     probe the similarity of putatively classified information to

           13     public domain information would require questions and

           14     answers in open court about the details of the substance of

           15     the relevant public source documents and the alleged NDI.

           16     You have such questions and answers of precisely what would

           17     be foreclosed by proposed procedure.  At most, coded

           18     references would have to be used.

           19                  But if the differences between the alleged NDI

           20     and the public domain information is particularly elusive or

           21     difficult to describe in abstract terms, it would be

           22     impossible for defense counsel to demonstrate effectively,

           23     via the Silent Witness Rule or argument, that any

           24     differences between the alleged NDI and the public domain

           25     information do not support NDI status for the material

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     information.

            2                  So the code and the unspoken comparisons, I

            3     think, would -- might well gloss over precisely the

            4     similarities and the insignificance of differences in

            5     government held information and public domain information

            6     that may be crucial to the defendants' position.

            7                  So, in short, the use of -- the expansive use

            8     of the Silent Witness Rule and codes would render virtually

            9     impossible an effective line of cross-examination that might

           10     be vital to the defense.

           11                  Now, I don't address here whether an impaired

           12     cross-examination would rise to the level of a confrontation

           13     clause violation.  That's a more difficult question and is

           14     more difficult to assess without even more detail.  But I

           15     did not find it necessary to reach or to address that

           16     question.

           17                  Now, quite apart from the difficulties in

           18     compound -- or the difficulties that I described,

           19     compounding those difficulties is that the proposed

           20     procedures would make it virtually impossible to

           21     cross-examine on why the putative NDI, if disclosed, would

           22     be damaging to the national security.  It would be very,

           23     very difficult to cross-examine on that.

           24                  I think it is not plausible to suggest that

           25     defense counsel could effectively cross-examine witnesses

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     about whether information is potentially damaging to the

            2     national security by use of coded euphemisms like "the

            3     redacted policy assessment" or "the fact on page 10 about

            4     Country A's activity, and Country B really does."

            5                  It's at the point that I began reflecting on

            6     that, it occurred to me whether this might rise to a

            7     Confrontation Clause violation.  But as I said, I don't have

            8     to reach it.

            9                  Now, another defect, fatal in my view, in the

           10     fairness of the proposed procedure, is apparent from the way

           11     it would hamper defendants should they choose to testify in

           12     their own defense.

           13                  Again, it's clear, they would be unfairly

           14     hindered in their effort to explain why they believed

           15     information that they sought to obtain, and the information

           16     they received and disseminated, was not NDI.  They should be

           17     able to explain precisely what they knew, when, from whom

           18     they learned it, why they didn't have the requisite mens

           19     rea, which I have discussed in several of the opinions that

           20     I have already written.

           21                  Statements like, "I heard from Foreign Person C

           22     the fact about Country X, reflected at Exhibit A, page

           23     three, paragraph four, line two," seem to me to be

           24     insufficient for fairness.

           25                  But that would be what essentially they would

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     have to say:  "I heard from Foreign Person C the fact about

            2     Country A reflected at Exhibit A, page three, line --

            3     paragraph four, line two, except for the last clause.  And

            4     so when I asked X or B for confirmation of that effect, I

            5     thought I was asking for a matter of public record."

            6                  It's very difficult to do.  That's certainly

            7     important testimony.  It provides an exculpatory explanation

            8     concerning the defendant's state of mind and the kinds of

            9     codes and -- that would be used.

           10                  It's conceivable, of course, that a jury might

           11     follow it, but it would be difficult, if not impossible, for

           12     the defendants to drive home the important points they are

           13     entitled to by using this procedure.

           14                  I don't see how they could explain why they

           15     believed the information they sought or had was in the

           16     public domain without revealing details about the

           17     information, the identity and reliability of the persons

           18     from whom they received it, and the like.

           19                  In short, I think the proposed procedure

           20     shackles defendants in a way that cannot pass muster under

           21     CIPA.

           22                  Finally, I think it also is important to note

           23     that the government's proposed frequently-changing system of

           24     code references not only invites jury confusion, I think it

           25     virtually guarantees it.  And indeed, other cases have noted

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     this potential, including Fernandez.

            2                  Given the sheer number of substitutions of

            3     proliferation of coded phrases varying from witness to

            4     witness and overt act and overt act, the likelihood of

            5     judicial -- juror confusion -- I was about to say "judicial

            6     confusion," but I don't want to exclude that, either.

            7                  (Laughter)

            8                  THE COURT:  It's just less important than juror

            9     confusion.  I think judicial confusion is generally

           10     presumed.

           11                  (Laughter)

           12                  THE COURT:  In any event, I think the

           13     likelihood of juror confusion would be a sufficient ground

           14     by itself for rejecting the wholesale proposed Silent

           15     Witness Rule use under Section 6(c) of CIPA.

           16                  I also want to point to out that I think the

           17     bifurcation of the jury and the public, that is, the jury

           18     and the parties and the Court having one version and the

           19     public having another, and the jury then being instructed,

           20     "You may not discuss this material," putting to one side how

           21     effective such a disclosure or such an instruction might or

           22     might not be, I find that it is difficult not to see that

           23     such an instruction to the jury might have the unintended,

           24     unwarranted effect of suggesting to the jury that the

           25     material really does have to be protected, and therefore is,

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     indeed, NDI.  That's part of the jury confusion.  That, I

            2     think, is unfair and inappropriate.

            3                  In a normal CIPA case, where the jury and the

            4     public hear everything, there isn't that problem.  The jury

            5     can then talk about it freely afterwards, as juries

            6     typically do -- although I instruct most of my juries that

            7     they ought not to disclose to the public, generally, what

            8     went on in the course of deliberations.  That's up to them,

            9     I say, "but I suggest it to you only because I think you

           10     have a duty of confidentiality to your fellow jurors as to

           11     what went on in the course of deliberations.  If jurors knew

           12     in advance that everything they said and did in

           13     deliberations was going to be grist for the media mill, it

           14     might have a chilling effect."

           15                  But that's a matter for them to discuss.  I

           16     don't instruct them not to do it.  I instruct them to think

           17     about the issue and make up their owns minds about it.  We

           18     have only to turn on the television to see that jurors don't

           19     usually don't pay much attention to those instructions.

           20                  Now, there is a paucity of reported cases on

           21     the propriety of using the Silent Witness Rule under CIPA.

           22     The rule has been infrequently proposed and even more

           23     infrequently employed.

           24                  Some of the cases have approved its use -- the

           25     Zeddle case is an important example -- while others have

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     rejected it.  The Fernandez case rejected it there, and in

            2     the District of Columbia, the North case rejected the rule.

            3                  Significantly, the rule's use has never been

            4     judicially approved for use in a case where, as here, the

            5     volume of classified information to which the rule would

            6     apply is large, where the central contested issue is whether

            7     that specific portions of that volume of information is NDI

            8     and whether the defendants knew it was NDI, or had the

            9     requisite mens rea, and where the effective result of the

           10     use of the rule excludes the public from the heart of the

           11     case.

           12                  The two most apposite decisions have rejected

           13     the procedure on the ground that it would unfairly hinder

           14     the defense case.  I mentioned those already.  Those would

           15     be the Fernandez case and the North case.

           16                  Now, the government protests that the amount of

           17     information subject to the Silent Witness Rule, or any other

           18     substitution, should not be decisive.

           19                  In the abstract, I think this is a correct

           20     proposition.  The amount of information subject to the

           21     Silent Witness Rule is not, by itself, determinative.

           22                  However, if appropriate substitutions provide

           23     defendants with -- do not provide defendants with

           24     substantially the same ability to make their defense as

           25     classified documents, then it doesn't matter whether the

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     substitutions are few or numerous.

            2                  It's also true, however, that the quantity of

            3     information subject to the Silent Witness Rule does properly

            4     inform the CIPA analysis, particularly with respect to

            5     administratability and confusion, and also with respect to

            6     whether the defense can fairly make its case.

            7                  In practice, the greater the amount of

            8     information and documents subject to the Silent Witness

            9     Rule, and more codes involved, then the greater -- and the

           10     greater the likelihood of confusion, the more unwieldy the

           11     rule becomes, and the more careful a trial judge has to be

           12     to insure that a defendant's right to present a defense is

           13     not impaired.

           14                  In the end, the most important consideration is

           15     whether the procedure impairs the defendants from

           16     effectively presenting their defense.  The government's

           17     proposed procedure, in my view, impermissibly does so.

           18                  Now, I have reached the conclusion that the

           19     procedure does not comport with CIPA in this case for the

           20     reasons I've stated.

           21                  But the defendants challenged the government's

           22     proposed procedure as unconstitutional.  They do so on

           23     constitutional, as well as statutory, grounds.  They argue

           24     that even if CIPA's language stretched to cover the

           25     government's proposed procedure, that procedure nonetheless

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     fails as a violation of the defendants' Sixth Amendment

            2     right to a public trial, and the government's First

            3     Amendment right to a trial open to public scrutiny.  This

            4     follows, defendants argue, because the proposed procedure

            5     does effectively exclude the public from essential portions

            6     of the trial.

            7                  Now, in this regard, I think it is worth noting

            8     that the government sensibly appears to have abandoned its

            9     original position that the proposed use of the Silent

           10     Witness Rule, coded testimony and redacted recordings does

           11     not close the trial, because the public would be present

           12     physically in the courtroom.

           13                  Of course, this argument, if credited, leads to

           14     the absurd result that a trial unintelligible to the public

           15     is still open to the public, simply because the public is

           16     physical present to see and hear evidence and witnesses they

           17     can't understand.

           18                  So, I think the quantity and quality of the

           19     material the government proposes to exclude from public view

           20     is plainly significant.  Seven of the nine alleged

           21     disclosures of NDI would be partially closed to the public,

           22     as would recordings and documents corresponding to this NDI.

           23     Notably, the government's proposed procedure treats even

           24     certain selected public domain documents, including news

           25     reports, as if they were classified documents.

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  Because a crucial issue in this case is whether

            2     the information is NDI, whether defendants knew it was NDI,

            3     the government's proposal would serve to preclude the public

            4     from seeing and hearing and evaluating evidence on these

            5     most crucial elements.  So, in my view, the government's

            6     proposal is equivalent to sealing essential aspects of this

            7     case.

            8                  Now, the analysis of the defendants'

            9     constitutional argument should properly begin with the

           10     recognition that the defendants and the public do have a

           11     fundamental right to a trial open to the public.

           12                  The right to a public trial contributes to just

           13     adjudication, stimulates public confidence in the judicial

           14     system, and insures that the public is fairly apprised of

           15     the proceedings in cases of public concern.

           16                  The only place I differ about public trials is

           17     I do not favor cameras.  But I certainly favor the public.

           18     Now, in any event, that isn't an issue here.

           19                  A public trial contributes also to deterring.

           20     It requires -- well, it requires witnesses' testimony to be

           21     public, so it deters perjury.  It requires a judge's rulings

           22     to be made in public, as today, so it deters partiality and

           23     bias.  And by requiring prosecutors to present their charges

           24     and evidence publicly, it deters vindictiveness and abuse of

           25     power.

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  So, in these ways, the presence of the public

            2     encourages accurate fact-finding and wise use of judicial

            3     and prosecutorial discretion, and also fair use of those

            4     powers, and it contributes to public confidence that justice

            5     has prevailed at trial.  It's always true that justice must

            6     not only be done, it must be seen to be done.

            7                  The denial of a public trial is a structural

            8     error, in the Court's view, not subject to harmless error

            9     analysis, as Bell reflects.

           10                  Now, given the important interests at stake,

           11     it's, of course, understandable that it's now well-settled

           12     that the defendants' right, defendant in a criminal trial

           13     right to a public trial, and the public's right to open

           14     trials, is established, well-established, in the Press

           15     Enterprises case for the public's First Amendment right, and

           16     then the Wallard case for the defendants' Sixth Amendment

           17     right.

           18                  And it's also well-settled that the standard

           19     governing whether the public trial right has been infringed

           20     is the same; whether the right is the Sixth Amendment right

           21     or the First Amendment right, it's the same test.  It's also

           22     true, I think, that the burden is significant on those

           23     advocating closure.

           24                  The test is one, first, from Press Enterprises

           25     and its progeny, that an overriding interest must exist to

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     close the trial; second, that closure be no broader than

            2     necessary to protect that interest; third, that the Court

            3     consider reasonable alternatives to closure; and, fourth,

            4     that the Court makes specific findings on the record

            5     concerning the existence of the overriding interest, the

            6     breadth of the closure, and the unavailability of

            7     alternatives to facilitate appellate review.

            8                  Decisions to close trials, of course, must be

            9     made on a case-by-case basis, with careful attention to the

           10     facts and the circumstances of each case.  And the

           11     government bears a weighty burden to establish that closure

           12     is permissible, as the Press Enterprises opinion reflects.

           13                  And, of course, before trials may be closed,

           14     there should be a hearing about it, which this was to have

           15     been.  Each of the Press Enterprises elements may be

           16     separately considered.

           17                  The first is the most challenging here.  The

           18     government argues that its interest in protecting classified

           19     information is a compelling and overriding one, and it's

           20     cited numerous cases so stating, because it says this is

           21     classified information.

           22                  Normally, this assertion would suffice, and the

           23     analysis would then focus on the other Press Enterprises

           24     factors.  Yet here, I'm compelled to note that the assertion

           25     of an overriding interest is somewhat undermined by the

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     substance of the proposal offered by the government.

            2                  The government's proposal reflects that the

            3     classified information at issue is not so deserving of

            4     rigorous protection, since the government is willing to

            5     disclose that information to twelve or more uncleared

            6     individuals, that is, jurors plus alternates, with only a

            7     instruction that they not disclose the information.

            8                  The government urges that the instruction

            9     against disclosure would be sufficient.  But such an

           10     instruction, I think, would be nearly unworkable here.  An

           11     instruction that the jurors must treat the information they

           12     received as closely-held is, of course, not easily

           13     reconciled with the instruction that the jury is the sole

           14     judge of the facts of the case, and that they alone

           15     determine whether information at issue is NDI, that is,

           16     whether it's closely-held and potentially damaging.

           17                  In other words, here I am telling the jury,

           18     "You cannot disclose this information," and then I tell

           19     them, "but you decide whether this information is deserving

           20     of that kind of protection."

           21                  Is it completely contradictory?

           22                  No.  I think that it has some basis for being

           23     understood logically, but it isn't easy.  It isn't easy.

           24     And I think the average juror would be quite confused about

           25     that.

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  I say that on the basis of 20 years of trying

            2     jury cases in this court and a previous number of years of

            3     trying them as a lawyer.  Since I lost so many cases, I

            4     would be more inclined to say that jurors most often don't

            5     understand a case.

            6                  (Laughter)

            7                  THE COURT:  Moreover, while protecting

            8     classified or national defense information has been

            9     appropriately recognized as a compelling interest justifying

           10     some kinds of closures, the government in this case hasn't,

           11     of course, adequately supported it by affidavits and the

           12     like.  It's just a broad, conclusory fashion.

           13                  Now, the government has told me, "Look, we'll

           14     give you the affidavits in the Section 6(c) process," and of

           15     course I will examine them there.  But what is needed is an

           16     affidavit for each particular piece of NDI, not some

           17     blanket -- not some blanket assertion of the privilege.

           18                  It is true that classification decisions are

           19     for the Executive Branch, and the information's classified

           20     status must inform an assessment of the government's

           21     asserted interest under Press Enterprises.

           22                  But ultimately, trial judges must make their

           23     own judgment about whether the government's asserted

           24     interest in partially closing the trial is compelling or

           25     overriding.  So that requires the Court to look at it.

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  Now, the government has said that it will

            2     supply affidavits, presumably on Thursday.  But I've

            3     reviewed this matter, and while I respect and defer to the

            4     Executive Branch's decision to classify certain information,

            5     that does not control the Press Enterprises analysis.  I

            6     must still make a determination.

            7                  There are lots of subtleties.  In many

            8     instances, the government says, "Look, we concede that this

            9     information might be this -- might be seen here or there,"

           10     but whether the government actually considered it to be true

           11     at that point in time, that's what made the NDI.  I

           12     understand that.  But that doesn't warrant, I think, closing

           13     substantial portions of the trial.

           14                  I don't think this proposal is narrowly

           15     tailored as Press would require, Press Enterprises would

           16     require.

           17                  Also, there are alternatives.  The alternative,

           18     obviously, is Section 6(c), the normal Section 6(c) process,

           19     by which the Court will consider specific substitutions in a

           20     specific context, and consider whether that specific

           21     substitution meets the fairness requirement of CIPA.  And if

           22     it does, then that ought to be shown to the public, as well

           23     as to the parties in court.

           24                  The Court is required to make findings.  But I

           25     don't need to make findings here, because I've reached the

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     conclusion that this procedure does not warrant -- does not

            2     pass muster under the statute and does not warrant, under

            3     the Constitution, closing the trial as the procedure would

            4     require.

            5                  Now, let met make a few other comments.

            6                  I said that there was authority on the Silent

            7     Witness, use of the Silent Witness Rule, and I want to make

            8     clear how I think this procedure differs from those in which

            9     it's been approved.

           10                  For example, in the Peltic (phonetics) case,

           11     there was five minutes of closure from public view.  That

           12     was coupled with a disclosure of all the evidence necessary

           13     for public scrutiny in the original brief.

           14                  The Marzook case, on which the government

           15     heavily relies, in the Northern District of Illinois, that

           16     case reflects that there was a partial closure of a combined

           17     pretrial CIPA and suppression hearing, not a trial.  At the

           18     Marzook trial, the evidence was disclosed in its entirely to

           19     the public.  The limited closure protected only the identity

           20     of two witnesses, or principally the identity of two

           21     witnesses.

           22                  And the Marzook Court applied a standard that

           23     was squarely inconsistent with the law here in the Fourth

           24     Circuit.  While the Marzook Court was correct in concluding

           25     that it must apply the Press Enterprises analysis, it found,

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     in my view mistakenly, that the government rebutted the

            2     presumption of openness by showing merely that the hearing

            3     testimony was classified and governed by CIPA.

            4                  The Fourth Circuit has rejected that argument,

            5     that is, that the courts defer entirely to the Executive

            6     Branch decisions for applying Press Enterprises for trial

            7     proceedings.  And that's what I just mentioned a moment ago.

            8     In CIPA, I don't second-guess the government on

            9     classification.  But on Press Enterprises, I still have to

           10     evaluate it.

           11                  Now, in my view, I give significant deference

           12     to the government's decision to classify information under

           13     Press Enterprises, as well.  But I have to still look at it

           14     and make an assessment.

           15                  The assessment doesn't involve my undertaking

           16     some prolonged examination of witnesses and experts about

           17     whether it was properly classified.  But it does involve

           18     looking at all the facts and circumstances of this case,

           19     which I have done.  And I think the asserted overriding

           20     interest is undermined significantly.  It's less than it is,

           21     than it would ordinarily would be.

           22                  In any event, there was also the -- that, by

           23     the way, was the Washington Post Company case in the Fourth

           24     Circuit.  So I don't find Marzook to be particularly

           25     persuasive, for reasons that I may elucidate in the

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     memorandum opinion.

            2                  Let me also mention that in the ruling that I

            3     reached today, and that I will issue, I am not saying that

            4     the Silent Witness Rule can never be used in the CIPA

            5     process.  That's not what I have held.  I am saying that the

            6     Silent Witness Rule, with all of its trappings as proposed

            7     by the government in the context of this case, to be used as

            8     they say, is not warranted or authorized.

            9                  I'm saying that there's nothing in CIPA that

           10     says that a jury can be told something different from the

           11     public.  And I'm saying that the defendants' right to

           12     present -- the defendants' right to present their case is

           13     hobbled significantly by the use, the wholesale use of the

           14     Silent Witness Rule across the board in the central and

           15     centrally important parts of this case.

           16                  Now, the government has suggested that I

           17     shouldn't reach this ruling until after I go through the

           18     Section 6(c) process.

           19                  I don't agree.  I think this is the right time

           20     and place to make this ruling.

           21                  Now, it is incumbent on the Court to proceed to

           22     the Section 6(c) process and to consider specific

           23     substitutions and to consider and make findings about those

           24     specific substitutions, if the government wishes to offer

           25     them.

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  Now, does that mean that nothing I've said

            2     today is likely to be heard again on Thursday?

            3                  I don't know.  We'll see.  I've looked at some

            4     of them already.  But what I'm going to be doing is looking

            5     at these substitutions as if they are to be shown to the

            6     public, as well as to the witnesses and counsel.

            7                  Now, to some extent, I'm prepared -- I'm not

            8     prepared.  But I am -- I'm unhappy, but I may hear that the

            9     government hasn't yet proposed the substitutions that they

           10     want to propose under Section 6(c) for purposes of showing

           11     it to the public, as well as to the jury.

           12                  By saying I'm not prepared, what I meant to

           13     say -- what I mean to convey is, I would have hoped that the

           14     government would have done that.  I'm not sure they have.

           15     We shall hear.  But I certainly intended that I would view

           16     this separately from it.

           17                  Now, if I rule adversely to the government in

           18     the Section 6(c) process, of course, the government has the

           19     right under Section 7 of CIPA to take an interlocutory

           20     appeal.  Whether or not the ruling I made on this process

           21     can be part of that, is not for me to determine.

           22                  But -- in fact, there are lots of rulings I've

           23     made in this case that I would love to see reviewed and

           24     passed upon.

           25                  Mr. Lowell and Mr. Nassikas would like very

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     much to have the motion to dismiss ruling reviewed on

            2     appeal.  It's not up to me whether that can be done.  I'm

            3     perfectly happy to have it done.

            4                  But my principal goal at his time is to

            5     continue to do what the law requires me to do, and to have

            6     this case, if it can be fairly done, tried as soon as

            7     possible, beginning on June 4th.

            8                  So, I intend to proceed.  And there are other

            9     issues that I'll address in the memorandum opinion like the

           10     arguments the parties have made about the instruction and

           11     the like, the instructions to the jury.

           12                  But what I intend to do now is that we will

           13     have a hearing, and it will be closed, at 2:00 o'clock on

           14     Thursday, at which time -- unless, Mr. Reilly, you rise to

           15     tell me that the record isn't in a posture to do that at

           16     this time.

           17                  But what I would envision doing on Thursday is

           18     looking at specific substitutions that the government

           19     proposes to use in lieu of disclosure of classified

           20     information, and to consider whether those disclosures,

           21     those substitutions that would be disclosed to the jury and

           22     to the public, would unfairly hamper or hobble the

           23     defendants' presentation of their defense.

           24                  Now, I don't foreclose at all in this

           25     Section 6(c) hearing that there might be isolated instances

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     where a version of the Silent Witness Rule might work.  I

            2     don't know.  I'll look at it in the specific context.

            3                  But what I am satisfied in is that the

            4     wholesale use of it as proposed by the government, across

            5     the board on these crucial issues effectively closes

            6     portions of this trial, fails Constitutional -- to pass

            7     Constitutional muster, or fairness muster under CIPA, as

            8     well.

            9                  And I'll enter an order accordingly.

           10                  I've already entered orders denying the amicus

           11     briefs.  They wouldn't have helped.

           12                  All right.  Mr. Reilly, do I anticipate that we

           13     may have trouble proceeding on Thursday?

           14                  ATTORNEY REILLY:  You anticipate correctly,

           15     your Honor.

           16                  THE COURT:  That's what I was afraid of.

           17                  How soon can you prepare the proposed

           18     substitutions?

           19                  ATTORNEY REILLY:  I would request a moment to

           20     confer with my colleagues.

           21                  THE COURT:  Well, I'll take a recess and let

           22     you do it, and then confer with Mr. Nassikas and Mr. Lowell.

           23     And I will be happy to have your collective views on how we

           24     should proceed.  I knew that you were counting on this

           25     procedure to solve a lot of your problems.

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  I'm not unmindful that you have these problems.

            2     And I don't -- I haven't said this, but I will say it:  I

            3     think the proposal, while I have found that it doesn't pass

            4     muster, I do find it to be fairly imaginative and creative.

            5     So, I can understand, and I think it was reasonable for the

            6     government to hope that this would solve the problem that

            7     they have.

            8                  The government's problem is not an

            9     insubstantial one.  It has this problem any time it has

           10     classified information that it seeks to use in a

           11     prosecution.

           12                  And so, you thought this might solve this

           13     problem.  I needed to answer that question and tell you, not

           14     as far as I am concerned.

           15                  But I still need to go ahead with the 6(c)

           16     process.  So I want you all to caucus now and tell me how we

           17     can move this matter along quickly, so that either the

           18     government can take its appeal, and maybe the defense,

           19     too -- although they don't have a right to an interlocutory

           20     appeal.  But you're imaginative people.  But on the other

           21     hand, you may want to get this thing tried.

           22                  It is important that we get it tried as soon as

           23     possible, or not tried.

           24                  If it's to be tried -- what is it, from

           25     Macbeth?  "If it were done, 'tis well it were done quickly"?

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     That's true here, too.

            2                  All right.  I thank counsel.  We'll reconvene

            3     at quarter to 4:00.  That will give you a half an hour.

            4     That should give you enough time.

            5                  I thank counsel on the amicus, but I assure

            6     you, I didn't need your help.

            7                  (Laughter)

            8                  THE COURT:  You can try it again at the Court

            9     of Appeals.

           10                  Court stands in recess.

           11                  (Court recessed at 3:15 p.m.)

           12                  (Court called to order at 4:00 p.m.)

           13                           FURTHER PROCEEDINGS

           14                  THE COURT:  All right.  Have counsel conferred

           15     on -- first of all, let me ask this question:  Is there a

           16     consensus among counsel that it would be futile to have a

           17     Section (c), 6(c) hearing Thursday at 2:00 o'clock, as is

           18     currently scheduled?

           19                  ATTORNEY REILLY:  I don't know that there's a

           20     consensus.  What I can say from the government's point of

           21     view is, I can't tell you yet, because we need time to

           22     review the Court's order before we can tell you whether

           23     Thursday is worthwhile going forward or not.

           24                  THE COURT:  The Court's order that I gave

           25     today?

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  ATTORNEY REILLY:  That you ruled from the bench

            2     today.

            3                  We don't --

            4                  THE COURT:  Well, the order will be simple.  It

            5     will say:  The motion to strike is granted.

            6                  That won't tell you very much.

            7                  ATTORNEY REILLY:  The written memorandum -- if

            8     there is a written memorandum supporting the order.

            9                  THE COURT:  There is -- or there will be.  But

           10     you can get a transcript from the court reporter sooner than

           11     you're going to get a memorandum from me.  I've just written

           12     it.  It now needs to be polished, and I'm not available to

           13     do it.

           14                  ATTORNEY REILLY:  We will need to review that

           15     with the Department of Justice, the U.S. Attorney's Office,

           16     and the Intelligence Agency victims, to determine what our

           17     next course of action is.

           18                  THE COURT:  Well, I don't think it's that

           19     complicated --

           20                   ATTORNEY LOWELL:  Can I strike --

           21                  THE COURT:  -- Mr. Reilly.

           22                  ATTORNEY LOWELL:  -- the word, "victims"?

           23                  THE COURT:  Let me, let me -- I don't think

           24     it's that difficult.  What I've said is that you can't use

           25     this procedure.  You can use, or try to use, what Section

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     6(c) explicitly states.

            2                  ATTORNEY REILLY:  We respectfully disagree with

            3     the Court on its analysis of the government's proposal --

            4                  THE COURT:  Fine.

            5                  ATTORNEY REILLY:  -- of 6(c).

            6                  THE COURT:  That's why there are Courts of

            7     Appeal.

            8                  ATTORNEY REILLY:  We have to review what our

            9     options are now --

           10                  THE COURT:  Like they respectfully disagree

           11     with you and with me on my motion to dismiss resolution.

           12                  ATTORNEY REILLY:  The government has several

           13     options under CIPA on how to proceed, and those options are

           14     considered by --

           15                  THE COURT:  What are they, other than

           16     Section 6(c)?

           17                  You've got the summary or you've got a

           18     statement of facts.

           19                  ATTORNEY REILLY:  We could go forward on the

           20     proposal as it is, and have the Court reject it at the 6(c)

           21     hearing, rather than at this general hearing, specific to

           22     each proposed substitution.

           23                  We could go back to our --

           24                  THE COURT:  But I would have to look at each

           25     substitution, look at the substitution.  I would then think

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     about it in terms of whether that, by itself, being given to

            2     the public and to the jury, would, would pass muster under

            3     the fairness requirements of CIPA.

            4                  ATTORNEY REILLY:  That's where we respectfully

            5     disagree with the Court.  We would not propose that.  Our

            6     proposal under 6(c) would be the bifurcated -- as the Court

            7     has said, bifurcated procedure that we propose.  And the

            8     Court would have to reject that.

            9                  THE COURT:  I already have.

           10                  ATTORNEY REILLY:  That's what we need to

           11     analyze, whether we want to go forward and --

           12                  THE COURT:  I have definitely rejected that,

           13     because that closes the trial.  Plus, it makes it unfair to

           14     these defendants to pursue, on a wholesale basis, their

           15     defense.

           16                  Now, if you want to protect one or two

           17     informants, or a specific means and method in some way that

           18     I can understand, I will be willing to think about that.

           19                  But I have to make specific findings under

           20     Section 6(c), and I haven't been faced with any

           21     substitutions to do that.

           22                  ATTORNEY REILLY:  We believe that we have

           23     proposed substitutions to the Court.

           24                  THE COURT:  Where are they?

           25                  ATTORNEY REILLY:  They are in our 6(c)

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     proposal, wherein the --

            2                  THE COURT:  All right.

            3                  ATTORNEY REILLY:  -- substitutions --

            4                  THE COURT:  I'll look at each of those at

            5     Thursday at 2:00 o'clock, and I'll consider whether giving

            6     those to the public and to the jury, whether that forecloses

            7     fair -- a fairness to the defendant.

            8                  ATTORNEY REILLY:  If I may, your Honor, when I

            9     say "substitutions," it's the government's position that the

           10     substitution includes the use of the Silent Witness Rule.

           11     That's part and parcel of the substitution.

           12                  THE COURT:  Well, I have to look at each

           13     substitution and make that determination.

           14                  ATTORNEY REILLY:  That's correct.

           15                  THE COURT:  And I have not done that.  I have

           16     simply told you that en masse, across the board, you can't

           17     do it.  It closes the trial.  It's unconstitutional.  It's

           18     unfair to the defendants.

           19                  Now, I have to look at each substitution under

           20     Section 6(c).  Are you prepared to do that?

           21                  ATTORNEY REILLY:  I -- the government submitted

           22     the proposals with the expectation that the substitutions

           23     included both the Silent Witness Rule and the substitution

           24     as proposed for the public.

           25                  We are not prepared to go forward just with the

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     substitutions, the handwritten substitutions, for the

            2     public, unless it includes the application of the Silent

            3     Witness Rule to the underlying information.

            4                  That being said, I would submit to the Court

            5     that the government needs time until Thursday to come back

            6     to the Court, to advise the Court on what course of action

            7     we are going to take.

            8                  THE COURT:  All right.

            9                  Mr. Lowell, Mr. Nassikas, what's your view?

           10                  ATTORNEY LOWELL:  A couple of points, your

           11     Honor.

           12                  I think I understand Mr. Reilly is saying that

           13     they understand that if the Court were to rule on the

           14     proposal as it stands now, as what they would show the jury

           15     as well as the public, that they understand that, number

           16     one, that might not carry their burden of proof --

           17                  (Simultaneous discussion)

           18                  THE COURT:  It might not.

           19                  ATTORNEY LOWELL:  -- and not --

           20                  THE COURT:  I might have to look at each, and I

           21     would have to make the same kind of determination.

           22                  ATTORNEY LOWELL:  And not only not carry the

           23     burden of proof, given how much they have taken away from

           24     the case, as what would be on that side of the bar, it might

           25     not end up being, under the standards of CIPA, giving the

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     defendants their right to their fair defense.

            2                  And therefore, what I understand them saying

            3     is, if there's a mechanism by which they can stand fast to

            4     what they've just proposed, and end up that being without a

            5     line-by-line as the 6(c) order, they want to consider that,

            6     because they may then decide that that's appealable.

            7                  At least I understand that that's what they're

            8     saying.  I don't know that I agree, but I understand it.

            9                  What we say in response is --

           10                  (Simultaneous discussion)

           11                  THE COURT:  Well, I'm --

           12                  ATTORNEY LOWELL:  -- they should have had --

           13                  THE COURT:  -- I'm not going to be moved by

           14     either your or Mr. Reilly's view.  I have to make a 6(c)

           15     determination.

           16                  ATTORNEY LOWELL:  We are with you on that.

           17                  THE COURT:  And if Mr. Reilly says, "You've

           18     already done it," and I don't agree with it, I rule on that.

           19                  ATTORNEY LOWELL:  No, no.  I understand.

           20                  I'm just trying to understand what Mr. Reilly

           21     is saying, your Honor, because I hadn't heard --

           22                  (Simultaneous discussion).

           23                  THE COURT:  I think --

           24                  ATTORNEY LOWELL:  -- him say --

           25                  THE COURT:  -- waiting until Thursday, so that

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     he can get his ducks in a row, is not unreasonable.

            2                  ATTORNEY LOWELL:  No.

            3                  What we were going to propose is, if what

            4     they're saying is that they need until Thursday to talk to

            5     us and you further, to determine that this is where they

            6     want to stand fast, we think Thursday can convert into a

            7     status hearing for that purpose.

            8                  But we're not understanding if that is

            9     something they've decided before Thursday, what the schedule

           10     for the actual substitutions will be.

           11                  THE COURT:  Suppose, Mr. Lowell, that the

           12     substitutions that are currently in the Section 6(c) file --

           13     All right? --  suppose those are shown -- are for public

           14     consumption, for the public and the jury.

           15                  Would you then take the position that all of

           16     those, even if they're shown to the public as such, or any

           17     of them, are not adequate under 6(c)?

           18                  ATTORNEY LOWELL:  That's exactly the position

           19     that we would take.

           20                  THE COURT:  Well, wouldn't I have to hear oral

           21     argument on that, and make specific findings about each one

           22     of them?

           23                  ATTORNEY LOWELL:  You did.  And in our

           24     submission that we have filed, we have begun that process by

           25     informing the Court of our view on that.  It's the one

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     that's under seal.

            2                  THE COURT:  Right.

            3                  ATTORNEY LOWELL:  We have definitely agreed

            4     that we need to do that.

            5                  THE COURT:  Well, then, this is useful.

            6                  Because I think, Mr. Reilly, to the extent that

            7     you take the ruling I just made to be a Section 6(c) ruling,

            8     it certainly is a ruling that Section 6(c) won't let you do

            9     it wholesale, but it isn't a ruling that is contemplated by

           10     6(c), because I still have to make the further ruling.

           11                  Now, that doesn't mean that what I've ruled

           12     today won't hang like a rain cloud under your other Section

           13     6(c) contentions.  But I have to take each one of those and

           14     say, "Okay.  Now this is going to be shown to the jury, to

           15     the public, to anyone."

           16                  And then I have to say, "Mr. Lowell, does this

           17     preclude you from fairly doing what you wanted to do?  And

           18     if it does, tell me how."

           19                  And then you get to say, "No, it doesn't

           20     unfairly preclude them, because they can do it" -- this,

           21     this and this.

           22                  And to the extent that the Silent -- you want

           23     the Silent Witness Rule used occasionally on those, or maybe

           24     on all of them, I guess I would consider it again and say

           25     no, if it's no.  Maybe I might, on one of them, say "Yes."

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     But I'm certainly not going to approve it across the board,

            2     as I just did -- I just didn't approve it.

            3                  So, I envision -- and you'll have to correct

            4     me, Mr. Reilly, on Thursday -- I envision that we would take

            5     each of these substitutions and go through them again.

            6                  I think the battle is already lost in terms of

            7     closing the trial as to those.  The question then becomes --

            8     now, I would have to consider it again individually for the

            9     Silent Witness Rule on individual ones, but the wholesale

           10     use is gone.

           11                  So now what I do is take each of the

           12     substitutions, Mr. Lowell, Mr. Nassikas would tell me why

           13     they think it doesn't meet the fairness requirements

           14     individually, with each one, and I would make findings.

           15                  And then -- and you would point out with

           16     respect to each one whether you intended to use the Silent

           17     Witness Rule, or would like to use the Silent Witness Rule

           18     for that one, or not.

           19                  And we shall see.  And I might make findings

           20     and say, "Well, I might allow the Silent Witness use for

           21     this one, but I wouldn't for this one, this one, this one,

           22     and this one."

           23                  ATTORNEY REILLY:  I don't believe we're going

           24     to be able to do that on Thursday.

           25                  THE COURT:  Well, what we can do on Thursday is

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     we can be clear -- because I'm pretty sure I'm right about

            2     my responsibility and the necessity for me to do that.  But

            3     at least we can be prepared on Thursday, you and

            4     Mr. Nassikas and Mr. Lowell can tell me whether I'm wrong in

            5     that regard, and why, and I will listen.

            6                  And if I don't think I'm wrong, then we can

            7     schedule, and I can have your considered views, after you've

            8     checked with your clients to -- as to when, how soon we can

            9     have it.

           10                  I don't want to lose this June 4th trial date.

           11     I have cleared a lot of material away from my docket to get

           12     this done.

           13                  Now, obviously, the June 4th trial date will go

           14     if there's an interlocutory appeal.  I don't have any

           15     control over that.

           16                  I do have some control how soon we can have

           17     this Section 6(c) hearing, and we need to do that.

           18                  So if there is to be an interlocutory appeal,

           19     it happens soon.  Then I can put things back on my docket,

           20     and so forth.

           21                  All right.  Thursday at 2:00 o'clock?

           22                  ATTORNEY LOWELL:  Your Honor, as to the

           23     schedule, then, we understand what will happen on Thursday.

           24                  As to the trial date --

           25                  THE COURT:  Let me be clear now.  What I

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     understand will happen on Thursday is, I want to hear from

            2     each of you if you think I'm right --

            3                  (Simultaneous discussion)

            4                  ATTORNEY LOWELL:  That you have --

            5                  THE COURT:  -- or wrong --

            6                  ATTORNEY LOWELL:  -- to go to the next step.

            7                  THE COURT:  -- that I have to go to the next

            8     step of making specific findings for each of these.  And

            9     that will include a consideration of whether the Silent

           10     Witness Rule will not -- what I'm not -- what's completely

           11     gone is that they will be kept, that these excerpts will be

           12     kept from the public.

           13                  ATTORNEY LOWELL:  And I think, therefore, there

           14     are --

           15                  THE COURT:  Therefore, I don't see why, to a

           16     large extent, the public -- or the Silent Witness Rule would

           17     be used, except as to places or people.

           18                  ATTORNEY LOWELL:  Right.

           19                  And I don't know that they have figured that

           20     out yet.

           21                  THE COURT:  Right.

           22                  ATTORNEY LOWELL:  So Thursday we will

           23     definitely do the first part.

           24                  If the government were to say, "We are

           25     prepared," as we submitted to your Honor our response to

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     their 6(c) under seal, that that's what we think would be

            2     the same for the jury and the public, then we at some point

            3     after Thursday, but very soon after Thursday, could proceed

            4     down that list, one by one.

            5                  My imagination is, is that that's not the

            6     government's position, that they are not going to go forward

            7     unless they want you to enter that order, so that they can

            8     take an interlocutory appeal, that that's truly what they

            9     think should be the substitutions and summaries for both the

           10     jury and the public.  That remains to be seen.

           11                  If they do the third, that they want to now --

           12                  THE COURT:  The other thing you have to

           13     consider, Mr. Reilly, is that if that is your view, and it

           14     isn't my view, I won't enter the order.  I'll wait until I

           15     do the 6(c).  So you'll have to take that into account, too.

           16                  ATTORNEY LOWELL:  And if they come back, as I

           17     imagine they might want to, and actually go back to the

           18     drawing board to do what you said is the alternative, which

           19     is to do a 6(c) substitution and request, I don't know how

           20     long that takes, your Honor, but we would like to hear what

           21     they want to do, and be able to respond so that that hearing

           22     is informed.

           23                  THE COURT:  I was under the impression that

           24     when the government filed its Section 6(c), that there were

           25     already substitutions -- and there are some --

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  ATTORNEY LOWELL:  Some.

            2                  THE COURT:  -- that that would be how we would

            3     proceed.

            4                  But, I think it's, it's reasonable, Mr. Reilly,

            5     for you all to go back and think about this.

            6                  What I'm suggesting to you is, I'm not likely

            7     to be maneuvered into a situation where you all think you

            8     have an appealable order and I don't do what the statute

            9     requires.

           10                  ATTORNEY REILLY:  Your Honor, with respect to

           11     the substitutions that the government has proposed, they are

           12     hand-in-glove with the Silent Witness Rule.  They are not

           13     separate from the Silent Witness Rule.  They are part of one

           14     of the same substitution.

           15                  That was the intention.  The intention was

           16     never that those substitutions would stand on their own,

           17     apart from the Silent Witness Rule.

           18                  Now, the Court has also ruled --

           19                  THE COURT:  Are you willing, then -- well, you

           20     should consider whether you're willing to state on Thursday

           21     that you decline to submit any substitutions that you would

           22     ever make public.

           23                  ATTORNEY REILLY:  That, we have to consider.

           24     That's --

           25                  (Simultaneous discussion)

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  THE COURT:  And if that's --

            2                  ATTORNEY REILLY:  -- one of our options.

            3                  THE COURT:  -- then maybe the right way to do

            4     this is for your to say that.  And if you do say that, then

            5     maybe under 6(e) I have decide whether to dismiss the

            6     indictment, if that's the case.

            7                  ATTORNEY REILLY:  I don't know that I'm going

            8     to be able to tell you on Thursday --

            9                  (Simultaneous discussion)

           10                  THE COURT:  Well, that's --

           11                  ATTORNEY REILLY:  -- exactly --

           12                  THE COURT:  -- that's the next step, isn't it?

           13                  If you tell me, "This is it; take it or leave

           14     it," I have to go to 6(e).

           15                  ATTORNEY REILLY:  That's correct, your Honor.

           16                  What I'm asking the Court's indulgence is, for

           17     additional time.  Two days is not enough to consult with the

           18     multiple intelligence agencies and senior officials that

           19     will have to be consulted with to get a decision on:  Are we

           20     going to stick with what we proposed?

           21                  Are we going to change it?

           22                  Are we going to modify it?

           23                  Are we going to agree that --

           24                  THE COURT:  All right.  I can appreciate that.

           25     That's reasonable.  So maybe Thursday is too soon.

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  When is the soonest that it could be done,

            2     Mr. Reilly?

            3                  ATTORNEY REILLY:  I would ask the Court that we

            4     come back Thursday to tell the Court when that can be done,

            5     and give the Court a better idea of what the timing is.

            6                  THE COURT:  All right.  I can do that, as well.

            7     I'm here Thursday, anyway, so I can do that.

            8                  ATTORNEY LOWELL:  Your Honor, we can be here,

            9     and we will be here.  I was juste wondering, why can't the

           10     government inform the Court and the defendants by Thursday,

           11     how much time they need, as opposed to come here --

           12                  THE COURT:  No --

           13                  ATTORNEY LOWELL:  -- to announce it?

           14                  THE COURT:  -- it could be.  But there is --

           15     you eliminate a lot of potential for misunderstanding and

           16     the like if you're here.  So let's get it done.

           17                  ATTORNEY REILLY:  Your Honor?

           18                  THE COURT:  So now, it's clear that on Thursday

           19     it will merely be a status, at which time Mr. Reilly will

           20     advise the Court whether the government will proceed to file

           21     6(c) substitutions, or revised, amended 6(c) substitutions;

           22     whether it's prepared to go ahead on 6(c) substitutions as

           23     they are, and -- otherwise, what I may do, also -- because I

           24     want to make findings on each one.  So I may at some point

           25     set a very quick hearing and require the defendants to

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     submit, with respect to each one, so that I can use that as

            2     an order, and I can either say I agree with the government,

            3     or I disagree with the defendants, as to whether it passes

            4     muster under 6(c), whether it uses the Silent Witness Rule

            5     or not.  That may be the way to proceed.  And then you would

            6     have your order.

            7                  On the other hand -- and I would also -- I

            8     think I would want to know from the parties -- if I rule,

            9     for example, that some submission, some specific

           10     substitution which the government says it wants to use via

           11     the Silent Witness Rule, does not pass muster under 6(c)

           12     fairness, shouldn't the order then also address what I think

           13     is the appropriate remedy under 6(c), so that that's part of

           14     what goes on appeal?

           15                  I think it should.  And that's another thing I

           16     want you to think about between now and Thursday.

           17                  ATTORNEY REILLY:  Your Honor, I think there's

           18     some confusion on my part.  I'm asking the Court to allow us

           19     to come back Thursday to advise the Court how much time,

           20     additional time, we would need to make that decision.

           21                  THE COURT:  You're right, Mr. Reilly.  You're

           22     right.

           23                  So all we're really doing, then -- back to

           24     Mr. Lowell's view -- is, how much time?

           25                  Why can't you just do that by pleading?

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  ATTORNEY REILLY:  I think the Court's point

            2     about confusion, and the myriad intricacies of this --

            3                  (Simultaneous discussion)

            4                  THE COURT:  Well, I --

            5                  ATTORNEY REILLY:  -- is a valid one, and --

            6                  THE COURT:  Yes.

            7                  And I want you, Mr. Nassikas and Mr. Lowell, to

            8     think about this, about what your view is.

            9                  Let me say once again what I -- what my view

           10     is.

           11                  I have ruled on this proposal and said that it

           12     doesn't meet the fairness requirements of Section 6(c).  But

           13     I've also ruled that it would close, effectively close a

           14     large part of the trial, and would fail under the both the

           15     Sixth and the First Amendments.

           16                  Now, what I have not done is to look at each

           17     individual proposed substitution and consider whether, if

           18     revealed to the public and the jury, whether that would

           19     serve adequately under 6(c).  I think I need to make that

           20     determination.

           21                  The government says, "But we want the Silent

           22     Witness Rule to go with each of those."

           23                  Well, I would think that it would be

           24     appropriate for me, since I've already ruled that it can't

           25     be used on all of them, it would close the trial, for me to

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     consider whether it might be usable on an aspect, or one or

            2     more of them, but that it wouldn't be used -- couldn't be

            3     used for certain others; and put that in the order, as well

            4     as whether it meets the fairness requirements.

            5                  And then, I think I also, in a Section 6(c)

            6     determination, I think I also have to consider what remedy

            7     under 6(e) the Court feels is appropriate, if it does find

            8     that some substitution or statement of facts does not pass

            9     muster.

           10                  And if that's the case, then I want to know

           11     from the parties whether they think that's the right

           12     procedure.

           13                  ATTORNEY REILLY:  If I may, your Honor?

           14                  THE COURT:  Yes.

           15                  ATTORNEY REILLY:  The Court's opinion about

           16     whether a substitution passes muster or not?

           17                  THE COURT:  Yes.

           18                  ATTORNEY REILLY:  Ultimately, that goes back on

           19     the government, where the government then has the option of

           20     coming back to the Court with another --

           21                  (Simultaneous discussion)

           22                  THE COURT:  That's correct.

           23                  ATTORNEY REILLY:  -- substitution --

           24                  THE COURT:  That's right.

           25                  ATTORNEY REILLY:  -- or saying, "We will just

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     disclose the information" --

            2                  THE COURT:  That's right.

            3                  ATTORNEY REILLY:  -- we're saying we won't.

            4                  THE COURT:  That's true, very true.

            5                  ATTORNEY RILEY:  And then the Court considers

            6     what penalties or options it has.  So I think we're

            7     premature on that.

            8                  THE COURT:  Yes.  I think you're correct in

            9     that regard.

           10                  ATTORNEY NASSIKAS:  Your Honor?

           11                  THE COURT:  But since this has already drawn

           12     out, you ought to be prepared on that.  I don't want to

           13     hear, "Well, now I've got to go back to my clients again."

           14                  Do it once and for all.  If you're prepared --

           15     if that's as far as you're prepared to go, then tell me.

           16     Let's get it done.

           17                  Yes --

           18                  (Simultaneous discussion)

           19                  ATTORNEY NASSIKAS:  Your Honor --

           20                  THE COURT:  -- Mr. Nassikas.

           21                  ATTORNEY NASSIKAS:  -- that is precisely my

           22     point.  By Thursday, I would hope the government, if they

           23     are going come up with a 6(c) substitution separate from the

           24     ones they've currently given the parties and the Court, that

           25     they do not ask for an indefinite additional amount of time

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     to do that.

            2                  Our presumption would be that the government,

            3     with its resources, would already have done that, knowing

            4     how novel this approach was that they presented to the

            5     Court.

            6                  THE COURT:  Well, like many things, the

            7     government's resources is an often-exaggerated concept.

            8     More pertinent in this regard are cantankerous, individual,

            9     uncooperative clients that Mr. --

           10                  ATTORNEY REILLY:  I --

           11                  THE COURT:  -- Reilly has to deal with.

           12                  ATTORNEY REILLY:  I respectfully disagree, your

           13     Honor.  The intelligence community has been fully supportive

           14     and cooperative.  These are not easy decisions.  These are

           15     very --

           16                  (Simultaneous discussion)

           17                  THE COURT:  I'm --

           18                  ATTORNEY REILLY:  -- difficult decisions.

           19                  THE COURT:  -- I'm delighted to hear you say

           20     that.  That will make it easier for me to impose very, very,

           21     strict time requirements.

           22                  All right.  I thank counsel.  I'll see you at

           23     2:00 o'clock on Thursday.

           24                  ATTORNEY WEISS:  Your Honor?

           25                  THE COURT:  Yes.

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  ATTORNEY WEISS:  I assume Thursday is public.

            2                  ATTORNEY LOWELL:  It's public.

            3                  THE COURT:  Absolutely.

            4                  ATTORNEY WEISS:  You originally said it was

            5     closed.

            6                  THE COURT:  That's right.  Because it isn't --

            7                  ATTORNEY LOWELL:  A status hearing.

            8                  THE COURT:  -- the Section 6 -- I beg your

            9     pardon?

           10                  ATTORNEY LOWELL:  I think you converted it to a

           11     status conference.

           12                  THE COURT:  That's correct.

           13                  ATTORNEY WEISS:  Thank you, your Honor.

           14                  (Court recessed at 4:20 p.m.)


           16                                  ---










                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR



            3                        CERTIFICATE OF REPORTER


            5                  I, MICHAEL A. RODRIQUEZ, an Official Court

            6     Reporter for the United States District Court, in the

            7     Eastern District of Virginia, Alexandria Division, do hereby

            8     certify that I reported by machine shorthand, in my official

            9     capacity, the proceedings had upon the motions hearing in

           10     the case of UNITED STATES OF AMERICA v. STEVEN J. ROSEN,

           11     KEITH WEISSMAN.


           13                  I further certify that I was authorized and did

           14     report by stenotype the proceedings in said motions hearing,

           15     and that the foregoing pages, numbered 1 to 68, inclusive,

           16     constitute the official transcript of said proceedings as

           17     taken from my machine shorthand notes.


           19                  IN WITNESS WHEREOF, I have hereto subscribed my

           20     name this        day of                    , 2007.



           23                              Michael A. Rodriquez, RPR/CM/RMR
                                                Official Court Reporter


                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR