In three current high-profile criminal cases, federal prosecutors have asked that the identities of Israeli government witnesses be withheld from defendants and their attorneys -- a move some legal scholars see as a highly unusual end run around the 6th Amendment.
Defense attorneys in all three cases have argued, with mixed results, that allowing U.S. prosecutors to keep the witnesses' identities secret -- as demanded by Israel to protect its agents -- violates their clients' constitutional right to confront their accusers.
Though courts have allowed witnesses to testify in secured courtrooms or found other ways to protect their identities when they might be in danger, experts say it is extraordinary to keep the identities secret even from defense attorneys.
"It absolutely gives me pause," said Jeffrey L. Fisher, a Stanford University law professor and 6th Amendment expert. "The essence of cross-examination is often being able to do a background investigation on the witness and use that as a lever for questioning their testimony. And if you take that away from a defendant, he is not left with very much."
Fisher added, "I can safely say the Supreme Court has never had a case about testifying under a pseudonym."
In Chicago, a federal judge recently permitted two Israeli agents to testify anonymously against two men accused of aiding the Palestinian group Hamas, designated by the U.S. as a terrorist organization since 1995. Judge Amy J. St. Eve said that the right to learn a witness' identity was "not absolute" and that the use of pseudonyms for the Israeli agents was justified because of their assignments.
"Given the safety issues inherent in revealing the [Israeli] agents' true identities, the government has met its burden that it need not disclose this identifying information," St. Eve said.
In Miami, however, a federal judge rejected a government request that six Israeli undercover police officers testify in disguises and without revealing their identities against a man awaiting trial on charges of trafficking in the drug Ecstasy.
Now a federal judge in Dallas, hearing the Bush administration's highest-profile prosecution of alleged terrorist financiers, is weighing a request to allow two Israeli security officials to testify anonymously in a courtroom closed to the public.
The Texas case involves seven former officials of the now-defunct Holy Land Foundation for Relief and Development, once the nation's largest Islamic charity, which was founded in Los Angeles and later based in Texas. The defendants, all but one a U.S. citizen, are charged with supporting terrorism by sending money to overseas charities that the U.S. and Israel contend are controlled by Hamas.
Uneasy over anonymity
Justice Department officials declined to comment about the Texas case or others in which prosecutors had sought anonymity for Israeli witnesses. Defense attorneys in the Dallas case also declined to comment.
But defense attorneys in the Chicago and Miami cases, where the issue has been settled, objected to hiding the identity of prosecution witnesses.
In the ongoing Chicago trial, defense lawyers were able to cross-examine the Israeli agents but were restricted in asking about their training, methods of interrogation or other matters. And the lawyers could not investigate their credibility as witnesses because their identities were unknown.
"It is a scary development," said attorney Michael Deutsch, who represents one of the two Chicago defendants. "It really gets us close to secret trials and secret evidence in this country."
Added attorney Roy Black, who represents Miami defendant Zeev Rosenstein, alleged to be a major international drug trafficker: "One of the most important things we have in our country's court system is a right to confront witnesses against you ... and certainly the judge in our case took that issue seriously."
Two years ago, Stanford's Fisher successfully argued before the U.S. Supreme Court that the attempted-murder conviction of a man in Washington state was wrong partly because prosecutors used a written statement to police by the man's wife when she could not be called to testify.
In a unanimous opinion written by the one of the court's most consistently conservative voices, Justice Antonin Scalia, the Supreme Court ruled that defendants have a right to know their accusers and challenge the reliability of their statements, no matter their credentials.
"Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty," Scalia wrote. "This is not what the 6th Amendment prescribes."
Conditions set abroad
Court testimony by spies or other undercover agents has always been problematic. When necessary, such personnel in the CIA and other U.S. agencies have testified with measures to protect their identities. But experts could not recall any cases -- apart from a military trial two decades ago -- in which testifying agents were allowed to hide their identities even from defense attorneys.
In the Dallas case, prosecutors argued in court papers that allowing the Israeli witnesses to testify anonymously was necessary to ensure their safety. The government has relied heavily on Israeli expertise to investigate terrorist financing, especially involving Hamas.
The request, they added, was "narrowly tailored to accomplish these ends without unnecessarily interfering with the defendants' right to confront witnesses under the 6th Amendment, and their and the public's right to an open trial."
But University of Michigan law school professor Richard Friedman, a 6th Amendment expert, said Israel's concerns about protecting the security of intelligence and law enforcement officials should not be allowed to trump the Constitution.
"Israel doesn't conduct our criminal procedures, and there is no reason why a defendant's rights in court should be determined by Israeli criminal procedure," he said.
One proposed witness is described as an intelligence officer with the Israeli Defense Forces who could authenticate financial documents and other material allegedly seized by the IDF during military operations in the West Bank and Gaza. The other witness has been a legal advisor with Israel's secret service, the Shin Beit, since 2000 and would testify on the alleged use of charities to finance Hamas.
Prosecutors have asked Judge A. Joseph Fish to allow the witnesses to use pseudonyms, enter and leave the courtroom through private doors, and testify in a courtroom cleared of all but attorneys, defendants and their immediate families. These and other measures, prosecutors said, were imposed by Israel as a condition for allowing the officials to testify.
From the time the government froze the assets of the Texas-based charity in 2001, records and interviews show, federal authorities have relied extensively on Israeli intelligence and documents in claiming that Holy Land raised millions of dollars in the United States for Hamas.
Defense attorneys have challenged that reliance because Israel has different standards for interrogations and evidence collection. And some legal scholars have warned that U.S. authorities must be cautious in depending on any foreign intelligence.
The defense argues that the two Israeli witnesses would only duplicate other testimony and that the real reason for the proposed secrecy is to sway jurors by implying the defendants are "dangerous men."
"This court cannot allow it to call a witness merely to create an atmosphere of fear," the attorneys said in court filings.
Not every expert voiced concern about the government's requests.
Law professor Michael Graham at the University of Miami said he was not troubled by hiding the witnesses' identities since their security assignments made it unlikely the defense would uncover anything damaging about them anyway.
But other legal scholars said the government's move raised obvious questions about rules of evidence and the 6th Amendment.
"What I want to know is: Could the government make the same point with a witness that does not require anonymity?" asked UCLA law professor Jennifer Mnookin. "And if the answer is yes, I see no reason why we should permit this witness."
Mnookin noted that there had been a few cases where government witnesses, for security reasons, had been allowed to testify anonymously in court with their identities known to defense attorneys but not their clients.
Other than the pending Chicago case, Mnookin said, she could recall only one other trial -- the 1987 court-martial of former Marine Clayton Lonetree for espionage -- in which the courts agreed to let the identity of a government witness, a U.S. intelligence agent, be withheld from the defense lawyers.
"The question is: How far does this go?" said Mnookin.
(BEGIN TEXT OF INFOBOX)
The 6th Amendment to the Constitution, part of the Bill of Rights, was ratified Dec. 15, 1791. The amendment guarantees the right to a speedy trial and to confront witnesses. This is the wording:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."
Source: Times research