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A federal judge presiding over a terrorism money laundering case made clear Wednesday that he will not tolerate any unnecessary delays, claims of national security notwithstanding. Senior U.S. District Judge Thomas J. McAvoy expressed dismay that the government apparently intends to withhold information not only from the defense, but also from the court. He sternly warned federal prosecutors during a hearing that their apparent intent to rely on the Classified Information Procedures Act to withhold otherwise discoverable materials is a double-edged sword. McAvoy is presiding over the case of two Albany, N.Y., men, both Muslims, accused of laundering what they were led to believe was terrorism money. The government has moved to withhold some materials from the defense by citing CIPA, a rarely invoked statute designed to simultaneously safeguard defendants’ rights and national security. McAvoy said that if the government insists on withholding information that the defendants need to mount a proper defense, he would have no choice but to dismiss the indictments. Wednesday, prosecutors refused to tell Judge McAvoy what it is they are seeking to withhold, the source of the materials that may be at issue or which agency is reviewing the materials to determine if they raise national security concerns. “Do you know at this point whether there are classified materials we are dealing with? Can you tell me that much?” the judge asked Assistant U.S. Attorney David M. Grable. “I really can’t get into the details,” Grable answered. “I don’t want details,” Judge McAvoy said. “I want to know if you know that among all these materials that you just talked about, that some of that information is classified.” “There is classified information related to this case which may be discoverable,” the government lawyer said. Later, Gregg Sofer, a trial attorney with the counterterrorism section of the Department of Justice, refused to tell the judge which agency provided the potentially sensitive material. CLASSIFIED INFORMATION “We have to be very careful we do not violate restrictions on classified information,” Sofer said. He said authorities would have a better idea in 60 days. “That’s when I might say the trial goes down in 30 days,” Judge McAvoy warned. He gave prosecutors 60 days to sift through what is apparently a mountain of material and begin getting a handle on where they are going with their CIPA motion. But he made plain that the fate of the defendants will not be delayed indefinitely. “You are treading on very dangerous ground,” McAvoy warned the prosecutors. “The defendants have a right to have the charges resolved. The court intends to resolve this as soon as humanly possible. Do you understand that?” McAvoy repeatedly expressed frustration, and in some cases skepticism, over the government’s position. At one point, he said “I don’t believe for a moment that they don’t know” what materials the government may claim are classified. At another, he expressed dismay that the government would not reveal even to the court the source of allegedly sensitive information. “You can’t tell me who is involved in gathering the materials?” he asked. Sofer explained that if classified materials are involved, anyone who may come into contact with those materials during the trial must first receive government clearance. “Well, do you intend to clear me first?” Judge McAvoy asked. Sofer said the court would probably be presumptively cleared to review classified materials. But he said the judge’s law clerks would need special clearance, as would the defense attorneys and anyone in their offices who may view the files. “Well, how long does it take to do all this clearing stuff?” the judge asked. There was no direct answer. McAvoy said this is the first CIPA matter he has encountered in 18 years on the federal bench. He said he is aware that CIPA imposes considerable burdens on all parties, including the court, but said he is determined to move the case as quickly as practical to avoid unnecessarily impacting the speedy-trial interests of the accused. “These people are living under a cloud,” he said. Wednesday’s hearing was the latest development in the nationally prominent prosecution of Mohammed Mosharref Hossain, a 49-year-old U.S. citizen who owns an Albany pizza shop, and Yassin Aref, the 34-year-old imam of an Albany mosque. They were arrested last month on the basis of a sting operation apparently triggered by a Defense Department translation error. Records show that more than a year ago U.S. forces destroyed an encampment, sometimes characterized as a terrorist camp, in the western Iraqi desert. A number of items were found, including what the government describes as “pocket litter.” Among it was a notebook containing the name of Aref, a refugee, and an address where he lived about five years ago. Initially, authorities translated a word preceding Aref’s name as “commander.” Recently, however, the government revealed that its translation was in error. The word actually means “brother” and may have been a courtesy title akin to “mister.” In any case, while operating under the apparently mistaken belief that Aref was some sort of terrorist group leader, authorities set up the Albany operation. Hossain was befriended by a confidential informant from whom he ultimately agreed to borrow money. The borrowed money, the informant explained, involved funds from the sale of weaponry that would be used to further terrorist aims, including the possible assassination of a Pakistani official. Aref witnessed the loan, acting as something of a notary. Hossain and Aref are now facing money laundering charges. INVOKING CIPA After the media reported on the translation error, the government invoked CIPA, claiming in motion papers that discovery in this case “would raise issues of national security that the court should address before any of this material is provided to the defense.” Wednesday’s hearing was the first on that issue. Terence L. Kindlon of Kindlon & Shanks in Albany appeared for Aref. Kevin A. Luibrand of Tobin and Dempf in Albany appeared for Hossain. Luibrand suggested Wednesday that the case is, at most, a garden variety money laundering matter and expressed doubt that any national security issues will emerge. Judge McAvoy did not issue a gag order, but he admonished counsel on all sides to be careful in their comments to the media. Although the government has been mum since the defendants were indicted, after the arrest there were press conferences in both Albany and Washington. Numerous public officials, including New York Gov. George E. Pataki and U.S. Sen. Charles Schumer, spoke out at the time in praise of the sting before the translation error became apparent.

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