August 12, 2017

ABA panelists discuss ways to best tackle cases involving national security, terrorism

Since the 9-11 terrorists attack, judges and practitioners across the country are increasingly finding themselves involved in cases touching on national security issues. The need to balance security issues with the rights of litigants is often a that requires the cooperation judges, prosecutors, defense attorneys and law enforcement.

Panelists on the ABA-sponsored program, “Managing the Lawyers, Guns and Money Cases – Hot Topics Involving National Security Issues,” talked about prosecuting cases involving national security, the need to maintain state secrets and privacy concerns, and pending cases in federal court. The 90-minute program was hosted by the ABA Judicial Division at the Marriott Marquis in New York City on Thursday, Aug. 10 during the 2017 ABA Annual Meeting. Panelists included moderator Magistrate Judge Donald Cabell, U. S. District Court, District of Massachusetts; Tim Reagan from the Federal Judicial Center in Washington, D.C.; and Daniel Hartenstine from the Department of Justice’s Litigation Security Group in Washington, D.C.

Cabell, a former assistant U.S. attorney who served in the major crimes unit and anti-terrorism and national security unit for the Justice Department, opened by saying the title of the program – Managing the Lawyers, Guns and Money Cases – might seem a misnomer when talking about national security cases but in fact it is spot-on.

“Traditionally you don’t think of guns and money when thinking of security issues. Most of us think of national security issues involve a non-American who has come to the United States to harm or kill us," explained Cabell, who worked on the prosecution team for the trial against convicted Boston bomber Dzhokhar Tsamaev. “Most people think national security issue arises because a non-Americans who come to the united states to harm or kill us. But over the last 25 years or so, things have changed dramatically.’’

Helped by the internet and social media, Cabell said the universe of defendants that are likely to be involved in national security cases today, in many cases, are American citizens or lawfully permanent residents of the United States. He noted the Detroit shoe bomber and the Boston bomber, who were both citizens. And Cabell says the types of cases that have been brought involving national security have also broaden dramatically to include guns and money -- firearms possession, money laundering, tax, fraud, securities.

“In many of these cases, the charges themselves don’t sound like terrorism,” Cabell said. “But in order to prove the charges it makes it necessary to shed light on sensitive techniques that were used to collect the information or the individuals who proved the information for the charges to be brought.”

He said the frequency of cases being brought to court has greatly increased and that has created tension among three particular interests – the defendant’s right to a fair trial; the government’s interest in protecting the integrity of its techniques that it uses to investigate these cases and ongoing ones as well as the ongoing concern to protect the safety of the citizens; and third, the interest of the judiciary in being able to manage a case with the same independence that a judge would have in any other case.

“These three tensions manifest themselves in very particular ways,” Cabell said, expounding on the thought with a series of questions he said national security cases present. How is information going to sharde? Who will have access to that information?  What happens in litigation, a motion to suppress evidence or a motion to dismiss? What about the cost, who bears cost if special accommodations are needed in the prosecution of the case?

Several of those questions were addressed by Reagan and Hartenstine in their presentations.

Reagan talked about two ways to keep things secret in court – the “state secrets privilege,” which permits the government to block the release of any information in a lawsuit that, if disclosed, would cause harm to national security; and “classified Information,” which Reagan describes as the unauthorized disclosure of which reasonably could be expected to cause damage to the national security. He talked about four Supreme Court cases that involved the state secrets privilege and the resolution in each.

“The courts of appeal have lots of nuance decisions on state secrets privilege and how the privilege actually works in the different circuits may be a little different depending upon what kinds of cases have arisen there,’’ said Reagan. 

Classified information is similar in content but it involves a different branch making the decisions, the executive branch, according to Reagan.  He said there are three levels of classification – confidential (low level), secret information (information that can cause serious damage to the national security), and top secret (information that could cause exceptionally grave damage). Reagan said there is a fourth designation that can be used called “sensitive compartmented information,” meaning there are extra precautions on who gets to see it because it involves sources and methods.

“If this type of information were to get into the wrong hands they could use it to hurt us and that’s why it is classified,’’ Reagan said. “If we lose this information we’re in trouble. Sources are hard to get, methods are hard to develop.” He said this information also must have special storage in a secured location. Who gets to see this type of information is determined by the courts, and that is where Hartenstine and the Department of Justice’s Litigation Security Group plays a role.

Known as classified information security officers, Hartenstine oversees a nine-member team (currently two vacancies) of security specialists who are detailed to the courts by the Justice Department to help courts determine who needs special clearances in national security cases and who needs to see what information. “We are not lawyers,’’ Hartenstine said up front. “We take a neutral position. Our role is to educate the judges and help the court. Judges on the case don’t require security clearances but everyone else does.

“We take our cue to get involved from the government that they intend to use CIPA (Classified Information Procedures Act)” Hartenstine said. “But it’s better to include my office than not.”

Hartenstine said his office can be involved in 200 to 300 cases at a time.

He and Reagan said great effort is taken to protect the record but that “whenever you are dealing with secrets you make public as much as you can without disclosing what you shouldn’t disclose,” said Reagan. “Best practice is to have a public record.”

Hartsenstine said his office helps to protect classified information from being exposed in in public proceedings and they set up secured storage facilities to now only store sensitive information but also sometimes sources.