December 2011

National Security Cases Pose Special Challenges for Federal Judges

The extraordinary steps sometimes needed in court cases featuring national security issues are brought into sharp focus by a newly published compilation of case-management challenges that confronted federal judges in 27 such cases.

"Evidence or arguments may be classified; witnesses or the jury may require special security measures; attorneys' contacts with their clients may be diminished; other challenges may present themselves," states the Federal Judicial Center's (FJC) publication, National Security Case Studies: Special Case-Management Challenges.

The case studies, authored by the FJC's Robert Timothy Reagan, detail how judges met such challenges. The information is based on a review of case files and interviews with about 60 district and appellate judges. The publication is posted on the FJC's website.

"An issue-by-issue summary of what was learned in the case studies will be published soon," Reagan said. "The purpose is to offer a resource for judges facing these challenges to learn from their colleagues' experience."

The latest compilation is the fourth edition of Reagan's findings. It includes newly added case studies, and updates all those he wrote about previously.

The challenge of dealing with foreign witnesses and witness security confronted Judge Gerald B. Lee (E.D. Va.) when he presided over the 2005 case of Ahmed Omar Abu Ali, convicted of plotting to kill President George W. Bush and aiding Al-Qaeda.

Abu Ali, an American citizen, was arrested in Saudi Arabia by officers of that nation's counter-terrorism agency, Mabahith. He argued that his confession was inadmissible as evidence against him because he was tortured while held in Saudi Arabia.

"To decide whether Abu Ali's confession should be suppressed, Judge Lee arranged for seven days of video depositions of Mabahith officers in Saudi Arabia," the FJC publication said. "Because the identities of Mabahith officers are secret, the Saudi government would not permit them to come to the United States to testify. There also was the risk that dangerous groups in Saudi Arabia would object to the officers' cooperation with an American prosecution."

The judge's solution was, to say the least, imaginative. "Judge Lee sent to Saudi Arabia two prosecutors, two defense attorneys, a camera operator, and an interpreter. A live video feed was established between Saudi Arabia and the United States, and the judge, additional counsel for both sides, and the court reporter were in Alexandria (Va.). The video image was constructed as a split screen with the defendant on one side and the witness on the other, so that the defendant could see the witness and the witness could see the defendant," the case study said.

A subsequent suppression hearing included portions of the depositions, in addition to live testimony from various other witnesses. The judge ruled that Abu Ali's confession was admissible as evidence, but allowed his lawyers to argue to the jury that it had been coerced. The split-screen video deposition evidence was played to the jury as well.

The Mabahith officers had used pseudonyms when they testified. In court, the judge, the attorneys, the defendant, and the jury could see the officers' images, but the public had access only to the audio portions of the depositions.

Judge John R. Tunheim (D. Minn.) had to wrestle with the challenge of classified evidence used in the 2009 prosecution of Mohamed Abdullah Warsame, a Canadian citizen accused of providing material support to Al-Qaeda.

Because the case against Warsame relied on classified evidence, his attorney and Tunheim's staff all obtained security clearances. Early in the case, Warsame's defense team had to review the classified material in a secure room at the courthouse, which included a suitable safe. "The attorneys had to prepare any documents based on or referring to classified material in the secure room. The court reporter, who had a security clearance, also had to work on transcripts containing classified information in this room and store computer equipment she used for such transcripts in the safe. Tunheim could keep classified materials in a safe in his chambers office," the case study said.

Government attorneys declassified some materials, and for other classified materials, they proposed substitutions/ modifications to the evidence intended to excise classified information while retaining evidentiary value. Tunheim compared all proposed substitutions with their corresponding originals.

The publication noted that a crucial element in the courts' handling of classified information are classified information security officers who are detailed to the courts by the Department of Justice's Litigation Security Group. They help the courts store and handle classified information, and facilitate security clearances for court staff and attorneys.