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As the nation marks the fifth anniversary of the Sept. 11 attacks, an international terrorism case in Atlanta’s federal court is�with the intervention of the media�testing the balance between the federal government’s demands for secrecy and America’s constitutional tradition of public access to criminal trials. A federal magistrate has permitted CNN, the Associated Press and the Atlanta Journal-Constitution to intervene formally in the federal prosecution of Syed Haris Ahmed, a 21-year-old former engineering student at the Georgia Institute of Technology, and his friend, Ehsanul Islam Sadequee, a 19-year-old Roswell resident of Bangladeshi descent. The media’s status as intervenors in the case�which is linked to the arrests of a suspected international terrorist cell in Canada last June�will likely test the boundaries of the secrecy requirements mandated by the 1980 Classified Information Procedures Act, known as CIPA, and federal prosecutors’ interpretation of it. U.S. Chief Magistrate Gerrilyn G. Brill on Sept. 1 granted the intervention request by media lawyers, who argued in court filings that they intend to ensure that the public has access to federal criminal proceedings, even when much of the evidence may be classified. Professor Ronald L. Carlson, who teaches courses in evidence and criminal procedure at the University of Georgia School of Law, said that the question of media access in cases involving national security “is one of the fundamental things that society at this point is coming to grips with. � The case in Atlanta is a microcosm of the sort of debates that are going on nationally around the country as terrorism and suspected terrorism cases are adjudicated.” Carlson said that despite the often highly confidential nature of evidence associated with prosecuting suspected terrorists, “The press, nonetheless, has a role to play in a free society.” “The role is,” he added, “to keep the public well informed about the progress of these cases.” Pair charged with aiding terrorists Federal grand juries have charged Ahmed, a naturalized U.S. citizen, and Sadequee, who is American born, with providing and attempting to provide material support to terrorists, specifically the Pakistan-based Lashkar-e-Tayyiba. The U.S. State Department designated Lashkar-e-Tayyiba as a foreign terrorist organization in 2001. The federal indictment charges the two men with conspiring with “like-minded Islamic extremists” to “engage in violent jihad” by attacking strategic U.S. locations, including oil refineries and military bases such as Dobbins Air Reserve Base in Marietta. The indictment also accuses Ahmed and Sadequee of traveling to Washington, D.C. to “case” national landmarks as potential terrorist targets, then providing video of those potential targets�including the U.S. Capitol�to suspected jihadists. According to the indictment, the two Americans also traveled to Canada to meet with suspected jihadists to further their violent plans. Both men also traveled to Pakistan, hoping to obtain paramilitary training and, eventually, enlist in Laskar-e-Tayyiba to join the fight in Kashmir. The indictment against Ahmed, who was arrested while Sadequee was in Pakistan last spring, was sealed. The investigation became public only after Ahmed’s family went to the media last March for help in locating their missing son�whom federal authorities had quietly arrested and jailed. In court filings, federal prosecutors have stated that they intend to litigate the case according to CIPA guidelines, which likely will result in sealing of court documents, evidence, hearings, and portions of the court record. The news outlets, represented by Peter C. Canfield and Thomas M. Clyde of the Atlanta office of Dow Lohnes, are asking to intervene “for the limited purpose of responding to any closure of proceedings or records that may arise” from federal prosecutors’ invocation of CIPA. In their motion, media lawyers argued that CIPA “does not override the court’s responsibility to protect the public’s First Amendment right of access to the proceedings. � The fact that some court records and hearings in this case will involve classified information does not mean that all hearings or records can be closed to the public and press. To the contrary, courts that have handled terrorism cases have consistently recognized many of the pleadings and hearings in such cases do not require the disclosure of classified information and must take place in public.” Not seeking classified info In an interview Friday, Clyde said that the media are not seeking access to classified information. “I think the vast majority of the case is not going to require the disclosure of classified information,” he said, “and that’s what the public is entitled to have access to.” Clyde also said the media will look to the judges assigned to the case�Brill and U.S. District Judge Clarence Cooper�”to look at whether things are being legitimately classified or whether the classified information system is overwhelming the rights of the public to look at the case.” Clyde added that he expects these issues to come up “repeatedly during the case.” David E. Nahmias, U.S. attorney for the Northern District of Georgia, said that when classified information plays a role in a criminal prosecution, the media has no more right to review that classified material than anyone else lacking the proper security clearance. But Nahmias, who was a top anti-terrorism lawyer for the Department of Justice in Washington from 2001 to 2004, asserted, “There is nothing that will happen at a trial that will be considered classified. “The whole point of CIPA,” he added, is to provide procedures to allow the government and the defendant to get the information needed at trial in a form that can be used publicly.” Nahmias said that decisions as to whether the media may attend a particular court hearing or have access to specific documents “will have to be done case by case.” “We recognize there is value to the government and to the defendant in having a proceeding that is as open as possible while protecting information that is sensitive to the government and the defendant,” Nahmias continued. But, he added, “There’s a process to do it carefully. You don’t just throw it all out there. The reality of classified information is that once it gets disclosed, the damage is done. It can never be corrected. You can try to remedy it � [but] once it’s in the public, you might as well hand it over to whoever wants to use it for a bad purpose.” Nahmias suggested that federal prosecutors in Atlanta may follow guidelines that were established regarding the presentation of classified material during the Virginia federal trial of Zacarias Moussaoui, who pleaded guilty in 2005 to participating in the Sept. 11 al-Qaeda conspiracy but who was jailed before the attacks took place. Nahmias also said that court hearings may be held privately, or in camera, and then a redacted, non-classified version of the transcript released to the public. Documents that are filed under seal may be made available to the public in redacted versions stripped of classified information. During the Moussaoui trial, Nahmias said that, once, there was a classified argument and an unclassified argument on the same issue. Attorneys presented their arguments based on unclassified material, took a break and then return to a courtroom cleared of spectators where those people with security clearances presented the classified argument to the judge. Unclassified material sealed But according to federal motions filed in the Ahmed/Sadequee case, federal prosecutors have asked to seal more than classified material. They have also asked for a protective order preventing unauthorized disclosure of unclassified discovery information�including all declassified recorded communications and transcripts, and other declassified information resulting from electronic surveillance or secret searches authorized under the Foreign Intelligence Surveillance Act. Brill, the magistrate judge, has not yet granted those motions, but she has agreed to hold an in camera hearing with prosecutors and the defense this week to discuss some of those matters in private. Media lawyers have until today to file a formal objection. Nahmias said “the case law is clear,” regarding his efforts to secure a second protective order that would cover unclassified information associated with the case. “Our view is that discovery materials are not available to the media.” The protective order for non-classified material, Nahmias continued, “is largely designed to keep both parties from providing discovery materials to the media or any third party . … We go through this process of being careful to make sure that we are not revealing sensitive information without everyone being aware that it is happening. � We can’t say it can’t come out in court one day, [but] we’ve got to be extremely careful.” Defense attorney Donald F. Samuel, a partner with Garland, Samuel & Loeb in Atlanta who is defending Sadequee, said defense lawyers did not object to the media’s intervention in the criminal case. However, Samuel, who has not yet received security clearance to review classified material regarding Sadequee, said the defense and prosecutors intend to resolve the case in an open courtroom. While acknowledging that there are certain to be some closed door sessions from which the media is barred, Samuel said that he finds more troublesome the possibility that defense lawyers may not be provided with the evidence they need to adequately defend their clients, or, if they do obtain that classified material, by law they won’t be able to share it with the defendants. “At that point, you start to get into a pretty bizarre realm,” he said. But Samuel also argued that the media has never had an unfettered right to all criminal discovery in a case. “This is not a transparent process. It’s translucent,” he said. “We get to see the light. We don’t get to see the details.” Lucy Dalglish, the executive director of the Reporters Committee for the Freedom of the Press in Washington, said that her organization’s concern is that, in screening court documents for classified material, federal prosecutors “start closing down hearings, closing down records just because they can.” “If you have information that clearly is classified or you have testimony from a person whose identity is classified, you can narrowly tailor the closure,” Dalglish said. “Closure cannot be any more broad than is required by the law. You can’t just decide you can shut down everything. A judge has to work pretty hard.” �Protective order creep’ Dalglish also expressed reservations about federal prosecutors’ intention to seal non-classified as well as classified information�a phenomenon she labeled “protective order creep.” “When everything filed is secret or every hearing is secret, you need to be very suspicious,” she said. “That’s something the news media, on behalf of the public, should be very aggressive about pursuing. Make sure there is a hearing, and the judge makes findings of fact that closure is absolutely necessary, and that the closure order is no more restrictive of First Amendment rights and the public’s right to attend the trial than is necessary. “It all boils down to this,” said Dalglish. “We don’t secretly try people and throw them in prison for the rest of their lives in this country.” Washington attorney Jay Ward Brown of the firm Levine Sullivan Koch & Schulz�who represented a coalition of media outlets that repeatedly strove to balance First Amendment rights with CIPA during the Moussaoui trial�suggested that, so far, CIPA “has not led to a lot of head-on confrontations between the public, the media and the government” because it has been narrowly construed. “I don’t think I have ever seen a case where there was egregious misuse of CIPA,” he said. But, he noted, CIPA and, indeed, the country’s entire national classification security system is based on trusting the government. “There is no way around that, and you either do or you don’t,” he said. “Part of the purpose of public scrutiny of these proceedings is whether the government merits that trust.” UGA’s Carlson suggested that the First Amendment doesn’t�and shouldn’t�always carry the day. “There are limits to the First Amendment, and critical national security interests will sometimes trump the First Amendment,” he said. However, he continued, “There cannot be in a free society the unlimited right by the executive to simply close things down.” The person in the best position to weigh those issues and, when necessary, adjust the limits on both sides, Carlson said, is “a wise trial judge.” “That’s one of the roles and responsibilities of the judiciary�to make sure we properly balance the public’s right to know with the executive right to protect information the disclosure of which might endanger lives or threaten investigations.” The case is U.S. v. Ahmed, No. 1:06-cr-00147 (N.D. Ga.) R. Robin McDonald can be reached at [email protected]

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