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May 2008

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This article is in the news archives --- for current news go to the Third Branch News.


Judges Learn from Terrorism-Related Cases

The correct answer may be any and all of the above. Federal judges now have help in solving the special case-management challenges associated with terrorism-related cases. The Federal Judicial Center has developed materials, not only for terrorism cases, but any type of case that may involve classified evidence or arguments, special security measures for witnesses or jurors, curtailed attorney contact with their clients, and other challenges.

“A number of proceedings may involve the review of classified materials. They wouldn’t necessarily be terrorism cases,” said Chief Judge Vaughn Walker (N.D. Calif.). “They may be employment cases involving an intelligence agency, for example, or a damages case. Before this, we hadn’t had a way to deal with the materials in these cases.”

Using a case study approach, the FJC’s Tim Reagan has assembled some of the various approaches federal judges have taken as they handle everything from terrorism-related to espionage and conspiracy cases. Challenges and their solutions are summarized in a “Problems and Solutions” document. A separate “Case Studies” document includes background factual information about the cases. The information is based on a review of case files and news media accounts and on interviews with the judges.

“Judges can handle the legal issues that arise,” said Reagan. “It’s the unusual procedural issues that come up frequently in these cases. The value of these materials is in helping prevent judges from doing things they wouldn’t do if they had known more.”

For example, a judge inexperienced in terrorism-cases may benefit from what other judges have learned about deposing witnesses in a foreign country, access to classified information in case records, the review of sensitive evidence, extra security at the courthouse, or religious accommodations for participants in court proceedings.

“These materials will help judges,” said Walker. “There are very few procedures regularized to handle terrorism-related materials, most of which are obviously of high sensitivity. The information assembled in the booklets will give judges an idea of how other judges have handled matters, and what they can and should do. They’ll see what others have done and it may trigger ideas in their own minds.”

The case studies are in chronological order in the “Case Studies” booklet and listed by the problem that needed to be overcome in the “Problems and Solutions” booklet. More cases will be added as they occur.

The FJC also has compiled “Keeping Government Secrets: A Pocket Guide for Judges on the State-Secrets Privilege, the Classified Information Procedures Act, and Court Security Officers.” It’s a slim primer on CIPA and classified information.

“I keep this on my desk,” said Judge Gerald Bruce Lee (E.D. Va.). “It’s a good starting point and a practical tool as a judge goes forward in any case with classified materials. All the information is in one place and it’s easy to digest.” Lee has used the Pocket Guide in district judge workshops on handling classified information and state secrets.

“The Pocket Guide and the other materials developed by the FJC let judges see who has had similar cases and what they did. I think all of us, particularly after 9-11 are a lot more sensitive to the issues involved with classified information and we want to be prepared to properly administer the case,” said Lee.

The Pocket Guide, Case Studies, and Problems and Solutions documents are available on the Federal Judicial Center’s Internet website at www.fjc.gov and, for judges and court staff, on the Judiciary’s Intranet, FJC Online.