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The Oregonian April 25, 2006
More secrecy cloaking terror cases
Surveillance - Attorneys in an Oregon lawsuit contend
government is trying to keep proceedings in the dark
BY ASHBEL S. GREEN
Nothing in Terence L. Kindlon's 30-year legal career prepared him to represent a man facing terrorism charges.
Kindlon got security clearance to look at classified documents in the case, but watched as government lawyers repeatedly brought matters to the judge privately.
However the judge responded, he did so without telling Kindlon.
"Despite my elevated status as a trustworthy, secure guy, I was defending a case in which there were, I think, 19 (private) communications of which I know absolutely nothing," Kindlon said.
Kindlon's case is unfolding in upstate New York, but secret discussions between government lawyers and judges are cropping up at what experts say is an unprecedented level in terrorism-related cases around the country, including in Oregon.
The emerging national trend goes to the very foundation of America's legal system: transparency. If one side makes an argument to a judge, the other side gets to be there to disagree.
In Oregon, the issue is before the judge presiding over a lawsuit by Al-Haramain, an Ashland-based Islamic charity challenging the legality of a warrantless surveillance program set up by the National Security Agency.
U.S. District Judge Garr M. King will hold a telephone conference call with lawyers today to discuss the government's request to communicate privately with the judge.
"Something remarkable and disturbing is happening in this case and in others across the country," Al-Haramain lawyers wrote in a court brief filed Monday. The government "is attempting to draw a veil of secrecy over judicial proceedings."
Bryan Sierra, a Justice Department spokesman, said federal law permits prosecutors to communicate privately with judges in cases of national security.
"The protection of classified information is monitored, enforced and adjudicated by a federal judge. It is not the result of unilateral determinations by the government," Sierra said in an e-mail.
Although lawyers occasionally communicate privately with judges, a wide range of experts expressed surprise at the government's extensive use of the practice in terrorism cases.
"It seems anathema to our adversarial system," said Geoffrey S. Mearns, a former federal prosecutor who is dean of Cleveland-Marshall College of Law at Cleveland State University.
Mearns said the rules should be changed to provide better safeguards. But other experts said judges simply need to stand up to the government's dire talk about national security.
"I don't think it's a matter of the laws being deficient," said Bruce Fein, an associate deputy attorney general during the Reagan administration. "I think it's some of the judges getting frightened."
Secret Oregon filing
The Oregon lawsuit accuses federal officials of illegally intercepting telephone calls between Soliman al-Buthe, a director of Al-Haramain, and two of the charity's American lawyers, Wendell Belew and Asim Ghafoor, in 2004.
After filing the suit in late February, attorneys filed under seal a classified document that they said supports the allegations.
Government officials have acknowledged in court papers that a classified document was inadvertently turned over to Al-Haramain lawyers while the Treasury Department was in the process of designating the charity as providing support for terrorists.
Neither government lawyers nor lawyers for Al-Haramain have specifically described the document, which The Oregonian in March moved to unseal. The government filed a 19-page response this month opposing the unsealing of the classified document. The government filed another response, but for the judge's eyes only.
Al-Haramain lawyers asked Judge King not to look at the secret court filing.
"Unless a party can see and respond to evidence submitted against it, the court's impartiality is jeopardized," Al-Haramain lawyers wrote. Private "contacts that limit a party's ability to participate in hearings or refute the government's evidence violate the spirit of due process."
Al-Haramain lawyers also argued more broadly for public access to the proceedings.
"Publicity is precisely what is needed in this case -- and in others like it," they wrote. "Defendants' warrantless surveillance program has been the subject of intense public concern since its December 2005 disclosure by The New York Times. That program raises profoundly important constitutional and policy issues concerning the post-9/11 tension between civil liberties and national security, which issues should not be litigated in the dark. This program, which began in secrecy, should now be scrutinized in full sunlight."
Rulings favor government
If King sides with lawyers for Al-Haramain, he will be bucking the trend of other federal judges.
- Kindlon, who represents one of two men from Albany, N.Y., who are accused of agreeing to help launder money for terrorists, filed a motion earlier this year demanding any evidence from the NSA wiretapping program.
U.S. District Judge Thomas J. McAvoy allowed the government to respond privately, then rejected Kindlon's motion and classified his reasoning.
- In Sacramento, lawyers filed a motion earlier this year seeking evidence derived from NSA wiretapping against a man accused of attending a terrorist training camp in Pakistan and his father, who is accused of lying to the FBI.
The government filed a secret response, and U.S. District Judge Garland E. Burrell, Jr. agreed with the government without explanation.
"Publicity is precisely what is needed in this case -- and in others like it," they wrote. "Defendants' warrantless surveillance program has been the subject of intense public concern since its December 2005 disclosure by The New York Times. That program raises profoundly important constitutional and policy issues concerning the post-9/11 tension between civil liberties and national security, which issues should not be litigated in the dark. This program, which began in secrecy, should now be scrutinized in full sunlight."
Tactical moves
Jonathan Turley, a George Washington University Law School professor who is handling the case, said it appears that the government is privately communicating with judges "for purely tactical purposes."
"The problem is that federal judges are simply not doing their job," Turley said. "They're not just supposed to roll over when federal prosecutors say they can't release classified information."
John R. Kroger, a former federal prosecutor who teaches at Lewis & Clark Law School, said lawyers sometimes need to talk to a judge in private. In an organized crime case, for example, prosecutors might tell the judge that they do not intend to tell the defense the name of a key witness until after the trial for fear of putting the witness at risk……….
http://www.oregonlive.com/news/oregonian/index.ssf?/base/news/114593373013910.xml&coll=7&thispage=1
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