United States v. Rosen

Rosen and Lawrence Franklin (defendants) were charged with conspiracy to communicate national defense information (NDI) to unauthorized individuals, in violation of the Espionage Act, 18 U.S.C. § 793. The defendants developed relationships with U.S. government employees, obtained NDI from those sources, and disseminated it to unauthorized people, including journalists and foreign government officials. Before trial, pursuant to the Classified Information Procedures Act (CIPA), 18 U.S.C. App. 3, the defendants proposed to present classified information in their defense at trial and objected to the government’s suggested substitutions. Pursuant to CIPA § 6, the government moved for permission to use an expanded version of the silent-witness procedure, whereby the classified documents would be available to the attorneys, court, and jury, but not read in open court. For each classified document discussed at trial, the court, witness, counsel, and jurors would have the unredacted, classified document, while the public would have access to only a redacted version. Whenever classified information would be addressed out loud, previously agreed-upon codes would be used. The defendants challenged the use of the silent-witness procedure, arguing that it is not authorized by CIPA and is unconstitutional, in violation of their Sixth Amendment right to a public trial and First Amendment right to a trial open to public scrutiny.