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Federal prosecutors handling an alleged terrorism money laundering case in Albany are demanding extraordinary security protections, including direct oversight by a Justice Department employee, whenever defense counsel and their clients view sensitive materials. The government wants a Justice Department security specialist in a secured room where attorneys and the defendants will examine and discuss confidential, secret, top secret or “sensitive compartmentalized information,” according to documents filed late last week in U.S. v. Aref and Hossain, 04-CR-402. Prosecutors also would restrict counsel to using only government computers while working with the sensitive information and to leave behind, in a room apparently annexed to the court and controlled by the government, all of their notes. The proposed protective order was submitted in a case where authorities instigated a sting operation and arrested two Albany men, both Muslims, on charges of laundering funds they were led to believe were proceeds from the sale of a surface-to-air missile to terrorists in New York City. Last summer, the government invoked the Classified Information Procedures Act (CIPA) to restrict the flow of information that may implicate national security concerns. The act imposes a heavy administrative burden on courts to balance the rights of criminal defendants with national security. It also gives the Department of Justice exceptional power. Already, defense counsel and court staff have been subjected to security clearance procedures that required them to divulge personal information, including their credit histories. The proposed protective order submitted to Northern District Judge Thomas J. McAvoy goes much further and would strip the judiciary of much of its traditional case management authority. Under the proposed order: � A Justice Department security specialist, Michael P. Macisso, would largely control defense access to classified materials that it may need to prepare its case. � Macisso would monitor the review of classified materials, which would take place in a specially designated area that he would secure for the defense. Defense counsel Terence L. Kindlon and Kevin A. Luibrand would be required to seek Macisso’s “guidance … with regard to appropriate storage, handling, transmittal, disclosure, and the use of such documents and information.” � If Macisso determines that a document contains classified information, it would be marked and sealed. If he decides the information is not classified, it would be placed on the public record. � No documents could be copied. All notes, recordings, typewriter ribbons and other materials used by the defense in the secured room would have to remain in that room until Macisso “determines that those documents or associated materials are unclassified in their entirety.” � Macisso would be barred from disclosing to the government the content of any conversations he overhears between Kindlon and Luibrand and their clients. “[T]he presence of the Court Security Officer shall not operate as a waiver of, limit, or otherwise render inapplicable, the attorney-client privilege,” according to the proposed order. Assistant U.S. Attorneys David M. Grable and Gregory A. West and Justice Department counterterrorism specialist Gregg N. Sofer said in the motion for a protective order that the measures are “designed to protect the rights of a defendant while minimizing the associated harm to national security in cases where classified information may be relevant to the criminal proceedings.” Grable said the security measures proposed by the government, including the presence of Macisso when classified data is examined, are necessary to prevent even the inadvertent disclosure of national secrets. “It is my understanding that the court security officer is present at certain times, in particular if any classified materials are reviewed,” Grable said, discussing the Classified Information Procedures Act requirements. “In the event that a case involves classified information, a court security officer needs to be appointed in order to make sure that information and material is handled properly and not disclosed either intentionally or unintentionally,” said Grable. McAvoy, on an earlier motion by the government, appointed Macisso to the position of court security officer. He has served in a similar role in other high-profile cases, including the prosecutions of Jonathan Pollard, the Navy intelligence analyst who sold information to Israel, and Robert P. Hanssen, the FBI agent who spied for the Soviet Union and then Russia. His office is also handling security in the case of terror suspect Zacarias Moussaoui. ‘BREATHTAKING’ SCOPE Luibrand, a partner at Tobin and Dempf, called the scope of the proposed protective order “dramatic, breathtaking.” He said there is no way he will consent to having a government agent present when he consults with his client or prepares his defense. “He [Macisso] is from the Justice Department,” Luibrand said. “The witnesses are from the Justice Department. The prosecutors are from the Justice Department. Any work we do is under the eyes of the Justice Department. This makes our jobs extraordinarily difficult. “ Kindlon, of Kindlon & Shanks in Albany, said the prosecution’s proposed protective order is “so over-reaching that it cannot survive judicial scrutiny.” McAvoy is slated to consider the proposed order, which Kindlon and Luibrand will oppose, at a Nov. 8 conference. “I think they are trying to render meaningless the right to counsel, the right to present a defense, the privilege against self-incrimination,” Kindlon said. “It strikes me as grossly excessive — all smoke and no mirrors.” But Macisso, a Justice Department employee who works out of a seven-person office in Washington, D.C., said in an interview Wednesday that his office has served controlled security for numerous cases without incident since the Classified Information Procedures Act was enacted in 1980. “We basically work for the judge to help protect the classified information,” he said. “We serve in a neutral capacity. Our function is to serve the court, much like his own staff. Our only role is to help protect the documents. “ In the Aref and Hossain cases, prosecutors have yet to acknowledge there are indeed classified materials. Last month, the prosecution refused to reveal to McAvoy not only the nature of any classified materials, but even whether such materials exist. Wednesday, Grable would not say whether there are any documents or other materials in the case that may implicate national security claims. CASE BACKGROUND Yassin Muhiddin Aref and Mohammed Mosharref Hossain were arrested last summer and charged with laundering funds they were led to believe were proceeds from the sale of a missile launcher that would be used to assassinate a Pakistani official. They were caught in a sting operation after an informant befriended Hossain, a U.S. citizen who runs an Albany pizza shop. Hossain, according to court records, asked to borrow a small sum of money and the informant agreed to give him $5,000 of the $50,000. Aref witnessed and memorialized the transaction consistent with Islamic custom and law, providing receipts for the parties. Prosecutors claim both men were under the impression the confidential informant was aiding a terrorist plot and agreed to help him launder money. The defense claims entrapment. The case took an odd twist early on. Initially, the government had portrayed Aref as a possible terrorist leader based on a notebook found in a western Iraqi encampment destroyed by coalition forces. Officials said Aref’s name and former address were discovered in the notebook, along with a notation next to his name describing him as a “commander.” Later, it became apparent that the defendant’s name was found among “pocket litter” confiscated at the camp and that the word next to his name more accurately translates as “brother” or “mister.” Aref, a refugee from Iraq, has several relatives in that country, according to the defense. Macisso said Wednesday that defense concerns over his role are understandable but unfounded. “Typically, [defense attorneys] call around to other defense attorneys around the country and realize who we are and the reputation we have developed and understand that we are truly a neutral party,” he said. OVERSIGHT CONCERNS But one attorney involved in a matter that involves Macisso said government oversight has seriously impeded his case. Eliot Lauer, a partner at Curtis, Mallet-Prevost, Colt & Mosle in Manhattan, and his partner, Jacques Semmelman, are working pro bono to secure clemency for Pollard, the former Navy analyst serving a life term for providing secret information to the Israeli government. Both lawyers have high-level security clearances, yet the Justice Department has denied them access to files that are available to department officials with no higher level of clearance, Lauer said. Lauer said that while he has no complaint with the way Macisso has performed his job, he has serious complaints about the department’s refusal to divulge information he believes is relevant to his case. “We think the department has inappropriately blocked legitimate access by two highly regarded professionals with the highest level security clearances to a sealed group of documents reflecting 20-year-old information,” Lauer said. Lauer, who has top-secret security clearance, was denied access to Pollard documents because the Justice Department concluded that he does not need to know what is contained in them. That determination was upheld by the district court and is under appeal and scheduled for argument Jan. 13 before the District of Columbia Court of Appeals. Luibrand said the intense involvement of the Department of Justice invariably results in constitutional conflict, raising serious due process and separation of powers questions. “This is a result of the blending and merger of the criminal justice system and military intelligence,” said Luibrand, a former Army captain with the Judge Advocates General’s Corps. “Both come together in a case like this, and there are inherent conflicts. Our entitlement to information and to use that information to prepare for trial collides with national security interests.”

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