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