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.
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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