- A federal judge has closed the courtroom for three government witnesses in the Huawei trial
- DOJ says the witnesses or their families could face retaliation from a foreign government
- Similar closures in previous national-security trials have protected intelligence and security personnel — which raises an obvious question about who these witnesses are
There was a shutout in Brooklyn this week. Not on the basketball court — in federal court.
Judge Ann Donnelly has granted a Department of Justice request to exclude the press and public while three government witnesses testify in the criminal trial of Huawei. The government's application, Huawei's opposition and the subsequent briefing are themselves sealed. The public explanation is that the witnesses or their families could face retaliation by a foreign government. Prosecutor Meredith Arfa told the court there were “no reasonable alternatives to closure,” describing the problem as specific to the individual witnesses.
And on Friday, the courtroom was shut to the public and press while one of those witnesses testified.
I don't like this.
The DOJ’s actions may be perfectly legitimate. China and Iran are capable of putting pressure on witnesses and their families, and genuine witness-security concerns should obviously be taken seriously. However, this is not an episode of "Lioness" Or "Slow Horses"; 🚩 it is largely a case about nerds allegedly stealing techy nerd stuff from other techy nerds. I make a modest living from pissing off governments and large multinational companies, and no one has threatened me. Yet.
Thus, closing an American criminal courtroom is an extraordinary measure. And when both the secret testimony and the secret arguments explaining why it must be secret are themselves … secret, skepticism isn't unreasonable; it's necessary.
Who are these witnesses? Why can't they testify under pseudonyms? Why can't their faces or identifying details simply be concealed with a paper bag with eyeholes or some sort of comedy Groucho Marx disguise? Why isn't the testimony restricted only where genuinely classified information is involved? Why must the public be excluded altogether?
We just don't know. It is a courtroom riddle, wrapped in an enigma, buried in the forest. But history gives us some clues as to the sort of witnesses that sometimes receive this level of protection.
Secret squirrels
During the 2017 federal trial of Ahmed Abu Khatallah over the Benghazi attacks, for example, a CIA support operative and the CIA's senior security officer in Libya testified under assumed names with the courtroom largely closed. Journalists and other observers were given an audio feed instead.
In the prosecution of former CIA officer Kevin Mallory for passing national-defense information to Chinese agents, the federal courts used classified-information procedures and special protections for intelligence-community witnesses because revealing their U.S. intelligence affiliations created serious national security and personal safety concerns. Jurors were permitted to see sensitive material that the public could not.
Other federal cases have protected foreign intelligence officers, undercover agents and informants in much the same way. Therefore, it is entirely reasonable to ask whether these Huawei witnesses come from the American intelligence or national-security apparatus.
To be very clear: There is currently no public evidence that these witnesses are CIA, FBI or intelligence officers. That is a question, not a fact. But because everything has now gone into full lockdown, shhhhh! It's-a-secret mode, these questions must be asked.
And if the trial is indeed entering the spook zone (just in time for Halloween, amirite?), secrecy should not make their testimony more authoritative. Quite the opposite.
Put simply, the CIA’s record of testifying before judicial bodies and congressional oversight panels is dismal. This is perhaps not surprising for an agency that specializes in subterfuge. Still.
The Senate Intelligence Committee's investigation of the agency's post-9/11 detention and interrogation program documented repeated instances in which the CIA gave “inaccurate or misleading information” — aka lies — to Congress, the White House, the Justice Department and the American public.
That deception is hardly an isolated incident. The agency’s history is a lowlight reel of institutional dishonesty: from former Director Richard Helms’s 1973 misleading testimony over covert operations in Chile, to the convoluted fabrications of the Iran-Contra affair, to the infamously flawed "weapons of mass destruction" intelligence presented to the U.N. 2003.
Between those failures and the documented misrepresentations surrounding rendition, detention and interrogation, history provides ample reason not to accept intelligence-agency testimony at face value.
Huawei stands accused of operating a decades-long criminal enterprise. If the DOJ proves that case, Huawei should be held responsible. I've said from the beginning that I'm rooting for the evidence, not for Huawei and not for Washington. And evidence works best in daylight.
Meanwhile, back at the trial…
With the courtroom doors firmly shut, now is a good time to review the testimony to date.
Since the trial started, the government has produced substantially more evidence than the narrative laid out on opening day.
Jurors have heard about T-Mobile's finger robot Tappy; emails connecting Huawei personnel in America and China; Quintel's allegation that confidential antenna technology found its way into a Futurewei patent application; former employees describing corporate authority centered in China; and testimony linking Huawei directly to Skycom's Iranian operation.
The trial has now reached the crucial banking allegations as well. Former HSBC executive Alan Thomas testified about Meng Wanzhou's 2013 presentation concerning Huawei and Skycom, while Huawei's lawyers countered with evidence suggesting HSBC already understood considerably more about that relationship than the government's original story might imply.
This is important because the fundamental question identified in my report from opening arguments has not changed.
The prosecution has produced plenty of anecdotes. Can it show us the hand (or the finger) directing them? Perhaps these three secret witnesses help answer that question. We don't know. Because we're not allowed in the room.
That is not a good look for American justice.
Read more about Huawei on Fierce Network
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The gaping hole in America's case against Huawei
The U.S. vs Huawei: A battle of narratives, not criminality
Huawei: They may rip out our networks, but they'll never take our patents!
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Stephen M. Saunders MBE is a communications analyst and USPTO-registered inventor examining how digital infrastructure — 5G, cloud and AI — is reshaping industry, power and society, as well as underpinning the emerging, ubiquitous global digital economy. As anchor of FNTV and a longtime industry insider, he focuses less on growth narratives and more on execution, risk and how hyperscale technology is distorting markets, governance and society at scale.
Opinion pieces from industry experts, analysts or our editorial staff do not represent the opinions of Fierce Network.