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.
One law professor from Stanford University and a 6th Amendment expert says that 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.
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. The Judge rules 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.
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 drug trafficking.
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.
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Attorney Ted Bills can be reached at 719.444.1000 or at http://www.SpringsAttorney.com.
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