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ALBANY, N.Y. — The federal judge presiding over an alleged money-laundering-for-terrorism case is literally giving defense counsel the keys to the courthouse. Northern District Judge Thomas J. McAvoy has rejected a prosecution proposal that would have resulted in limited defense access to sensitive materials and only under the direct oversight of a Justice Department security specialist. Judge McAvoy held that defense counsel Terence Kindlon and Kevin Luibrand “will be deemed trustworthy to view the classified material at any time they wish and without the presence of” the court security officer. They will be permitted to view classified information only in a special area designated in the federal courthouse. Thus, they must have access to their respective secure rooms at all times, the judge said. He directed the government to provide the attorneys with keys to their room and with swipe cards so they can get into the building whenever they want. The court instructed the government to provide Kindlon and Luibrand with safes for their notes, computers, printers, printer cartridges and other materials that “will never leave the secure room and will be returned to the possession of the Court Security Officer at the conclusion of this case.” Judge McAvoy’s protective order this week in U.S. v. Aref and Hossain, 04-CR-402, contained fewer constraints than the U.S. Department of Justice sought and more than the defense and intervenor media organizations preferred. The case involves two members of an Albany mosque who were arrested this summer on money laundering charges. Yassin Muhiddin Aref and Mohammed Mosharref Hossain were caught in a sting operation and accused of laundering funds that they were led to believe were the proceeds from the sale of a missile launcher that would be used to carry out a terrorist plot in New York City. Prosecutors invoked the Classified Information Procedures Act to restrict the flow of information. In a proposed order submitted last month, Assistant U.S. Attorneys David Grable and Gregory West and Justice Department counterterrorism specialist Gregg Sofer sought a number of restrictions to prevent the unauthorized release of classified information. The prosecutors insisted, notwithstanding the fact that defense counsel must receive the same security clearances as court staff, that Kindlon and Luibrand be under the direct observation of a security officer whenever they view classified materials. Although that officer, Michael Macisso, is a Justice Department employee, he is required to serve the court rather than the prosecution or the defense. Kindlon and Luibrand objected to large portions of the proposed order. They argued that it would interfere with their ability to provide effective assistance to their clients. They were especially uneasy with Macisso’s role, and the fact that a Justice employee would essentially be looking over their shoulders as they reviewed sensitive materials. Judge McAvoy said that “the defense overstates the peril” from the security officer’s being privy to their notes. But he prohibited Macisso from listening to any conversation between or among counsel or to tell the government which documents defense attorneys examine in the secure area. “Despite the fact that the [security officer] and the prosecution are both employed by the [Justice Department], the court is confident that there will be no divulging of confidences and counsel’s notes will not be reviewed” by the security officer, he wrote. IN CAMERA REVIEW Judge McAvoy also recognized a problem of revealing classified information only to those with the appropriate clearances, which would prevent the defendants from viewing information that could be crucial to their defense. “Because it is highly unlikely that the [Justice Department] would grant security clearances to someone charged with providing material support to a foreign terrorist organization, the practical effect of the Government’s proposed Order is that the defendants themselves would have no access to any classified material,” Judge McAvoy said. He said that proposed order is “too broad,” especially since at least one of the defendants is likely to assert an entrapment defense. An entrapment defense would require the government to establish a defendant’s propensity to support terrorist activities, and evidence of that nature would likely be classified, Judge McAvoy said. The court said “defense counsel must be afforded the right to open certain classified evidence to their clients.” Judge McAvoy is requiring the prosecution to present each piece of classified material at issue for an in camera hearing where, he said, the government must be ready to explain the “security significance thereof so the Court can balance the defendants’ right to access the material against the Government’s interest in non-disclosure.” Judge McAvoy addressed a motion by several media companies to intervene. He noted the media’s interest in open proceedings and open records, but refused to grant newspapers, TV and radio stations full party status so they can be advised of or granted an opportunity to be heard any time information is sealed. “There is no First Amendment right of access to classified materials filed in a court proceeding under CIPA’s provisions,” Judge McAvoy said, referring to the Classified Information Procedures Act. “The invocation of CIPA no more warrants making Press Intervenors (or any other party styling themselves as the public’s surrogate) a party to this action than it does abandoning . . . First Amendment and common law rights.” John Caher is a reporter with the New York Law Journal, a Recorder affiliate.

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