Panel Report: Issues in Article III Courts

• Author: Debra A. Livingston
• Position: Paul J. Kellner Professor of Law, Columbia University Law School, J.D., Harvard Law School.
• Pages: 45-61

Introduction

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Debra A. Livingston: Paul J. Kellner Professor of Law, Columbia University Law School, J.D., Harvard Law School. Professor Livingston served as the panel's moderator and, in that capacity, has prepared this summary.

Cases implicating classified information can pose difficult legal issues for Article III courts, and these issues may well grow more complicated and arise more frequently as the global war on terror continues. The manner in which these issues are resolved has profound implications for the national security, for the procedural rights of litigants, and for the public's ability to scrutinize legal proceedings. Indeed, the expanded use of secret evidence in Article III courts may raise questions about the very character of the courts themselves. Is there a point at which the demands placed upon these courts, pushing them in the direction of considering evidence and submissions from both adversaries in less than a fully adversarial and public way, threaten the courts' essential character or even their constitutional role? Are Article III courts equipped to deal with terrorism-related cases that implicate national security information?

The panel convened to discuss the use of secret evidence in Article III courts was expert in every sense of the word. Presenting the judicial perspective on these issues was Judge Gerald E. Rosen from the United States District Court for the Eastern District of Michigan. Judge Rosen has presided over a number of cases implicating classified evidence, including most prominently the prosecution of Karim Koubriti, Ahmed Hannan, and Abdel-Ilah Elmardoudi, for conspiracy to provide material support to terrorists, conspiracy to engage in document fraud and document fraud. Following the defendants' convictions in this highly publicized, post-September 11 case, the Government, confessing error, moved to dismiss the terrorism-related charges and acquiesced in a new trial on the document fraud charges, based upon the prosecution team's failure to produce material exculpatory information. Judge Rosen found that the Justice Department's prosecution team had materially misled the court, the jury and the defense as to the nature, character and complexion of Page 46 critical evidence. The prosecution had withheld classified material that was "clearly and materially exculpatory," in Judge Rosen's words. Koubriti, the first major terrorism-related case tried to jury verdict post-September 11, ended up in its post-trial phase presenting the court with "a confounding maze of complicated and interrelated issues" that required Judge Rosen to sift through large amounts of classified material in his effort to assess how the nondisclosure of secret evidence had undermined the trial process.¹

The next speaker, offering the prosecution's perspective, was Andrew C. McCarthy, a senior fellow at the Foundation for the Defense of Democracies and a prolific and oft-cited commentator on counterterrorism issues in National Review, Commentary, and numerous other publications. Mr. McCarthy was an Assistant United States Attorney in the Southern District of New York for eighteen years, during which time he was centrally involved in each of the major terrorism cases prosecuted by that office in the decade before September 11. Mr. McCarthy led the successful 1995 prosecution of Sheik Omar Abdel Rahman and his eleven co-defendants for their roles in connection with the 1993 World Trade Center bombing and a conspiracy to destroy the Lincoln and Holland tunnels as well as to launch simultaneous attacks on the United Nations headquarters, the George Washington Bridge, and the FBI headquarters in New York. Following the September 11 attacks, he supervised the Southern District's Command Post near Ground Zero. Mr. McCarthy also served as a Special Assistant to Deputy Secretary of Defense Paul Wolfowitz.

Joshua Dratel spoke about secret evidence from the perspective of the criminal defense lawyer. Mr. Dratel has practiced criminal defense law in New York City for over twenty-four years. He served as President of the New York State Association of Criminal Defense Lawyers in 2005; he is also co-chair of the National Association of Criminal Defense Lawyers' Select Committee on Military Tribunals. Mr. Dratel was a lead defense attorney in the Southern District of New York prosecution of al Qaeda conspirators involved in the 1998 bombings of the American embassies in Nairobi, Kenya and Dar es Salaam, Tanzania. He has written and lectured widely on terrorism-related issues, including issues connected to the Classified Information Procedures Act ("CIPA"),² the principal law governing the use of classified evidence in Page 47 criminal prosecutions. Mr. Dratel is co-editor, with Karen J. Greenberg, of The Torture Papers: The Legal Road to Abu Ghraib (Cambridge University Press 2005), a compendium of post-September 11 Government memoranda on interrogation techniques.

Nancy Hollander was the final speaker. Ms. Hollander, named as one of America's top fifty women litigators by the National Law Journal and listed in The Best Lawyers in America, is a nationally known and respected criminal defense attorney and a past president of the National Association of Criminal Defense Lawyers. For the panel, however, she focused on her significant involvement in terrorism-related civil litigation implicating secret evidence. Ms. Hollander has played a central role in the representation of Guantanamo detainees. She has also represented the Holy Land Foundation for Relief and Development in connection with its suit, against the United States, challenging the Foundation's designation as a terrorist organization and the consequent blocking of its assets. Ms. Hollander has served as counsel in numerous high-profile cases implicating secret evidence, including the defense of Wen Ho Lee. She is expert in CIPA as well as the Foreign Intelligence Surveillance Act ("FISA").³

I The panel presentations

A The Judicial Perspective

Judge Rosen was the first panelist to speak. He took on the task of framing the issues for the panel as a whole. Judge Rosen began by focusing on the logistical problems that confront Article III courts when a case implicates classified information. He then went on to talk about the constitutional and evidentiary issues that can arise. At the start, however, Judge Rosen noted that cases involving national security secrets "don't come with navigational charts," so that in many instances the participants in the case "find themselves in uncharted water seemingly without a paddle."

On the subject of logistical problems, Judge Rosen began by noting that the first question to be confronted in a "secret evidence" case seems simple but is in fact quite complex-namely, the question to what extent classified information will be involved at all. "Although this may seem to be an easy issue, it's not," he noted. Even the Government may not know at the outset of a case whether classified information will be Page 48 extensively employed. The case "is certainly a moving target as it develops, and certainly through discovery." Judge Rosen advised that when there is the remotest chance that classified information will be implicated, the judge should immediately convene a conference of all counsel so that potential logistical problems can be discussed.

Judge Rosen identified a range of issues to be covered at such a meeting. To what extent are counsel familiar with CIPA's provisions and obligations? Will it be necessary for members of the prosecution and defense team, as well as court staff, to obtain security clearances to review classified information? If so, this process needs to begin immediately, as it can otherwise cause delay. Another logistical issue is whether the anticipated classified information is classified at such a level that it is required to be maintained in a Secure Compartmented Information Facility ("SCIF"). When material that must be used by the court and by the lawyers in a pending case must be maintained in a SCIF, there is the potential for further delay during a SCIF's construction. There are also logistical challenges about affording sufficient access to the material. Judge Rosen advised that the parties need to develop protocols for handling classified information and for litigating privilege claims early on in the proceedings.

Judge Rosen then moved on to address the "extremely daunting" substantive and procedural issues that arise once classified information has become a part of the litigation. First, he spoke about material for which the Government may claim a national security privilege: "CIPA prescribes a privileged log approach in which the Government simply describes in a very generic sort of plain vanilla way documents for which national security privilege is claimed." Judge Rosen noted that general descriptions of this type may be necessary to protect the information for which a privilege is claimed. At the same time, the generic quality of such descriptions can make it very difficult for defense counsel or the court to evaluate the significance of the material to the case and, in particular, whether an item might constitute material exculpatory information that is required to be produced pursuant to Brady v. Maryland4 and its progeny. Judge Rosen observed that the Government is also poorly positioned to evaluate whether the material falls within Brady's due process command. The prosecution team cannot fully anticipate the defense case, so as to know how the classified material might potentially be used in the presentation of a defense.

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Another problem concerns the difficulties of...