Wednesday, September 16, 2009

NACDL’s Sept. 16, 2009, White Collar Crime CLE – “The Strategy of Secrets: The Use of Classified Information in White Collar Cases”

Guest Blogger: Michael Price, Coordinator for National Security, National Association of Criminal Defense Lawyers (NACDL)

This evening we had the privilege of spending the last two hours learning first-hand from the lawyers who defended Zacarias Moussaoui, AIPAC lobbyist Steve Rosen, Wadih El-Hage, Mohamed El-Mezain, David Hicks, and Dr. Ali al-Timimi. They discussed the use of classified information -- both defensively and offensively – in criminal proceedings. Attorney Joshua Dratel, an NACDL board member and an expert in issues related to the use of classified evidence in criminal proceedings, moderated tonight’s panel. The panel also included attorneys Abbe D. Lowell, a partner in the law firm of McDermott Will & Emery LLP and head of the Firm’s White-Collar Criminal Defense practice group in Washington, D.C., and Edward B. MacMahon, Jr., who serves as a member of NACDL’s National Security Committee and, like Joshua Dratel, as an attorney with the John Adams Project, a joint effort of NACDL and the ACLU. You can read more about these esteemed panelists by simply clicking their names and linking to their biographies.

The Classified Information Procedures Act (“CIPA”) establishes detailed procedures for “matters relating to classified information that may arise in connection” with a prosecution. In essence, it regulates the use of classified information in criminal cases. In practice, it almost exclusively prohibits it. The ever-broadening definition of “national security” together with the incentives for law enforcement to characterize criminal matters as implicating “national security” render “the prospects of otherwise ‘ordinary’ white collar cases involving classified information and CIPA significantly greater,” Dratel explained as he introduced the subject matter of tonight’s panel.

In today's world, the use of evidence the government would rather keep secret has started to, and will continue to, seep into a wide range of federal criminal prosecutions. This panel of highly experienced white collar defenders provided strategic guidance in how to respond when the government claims the evidence in your case is classified as well as when a defender might use CIPA to their own advantage.

In addition to providing practitioners with a primer on fundamental CIPA principles, the panel brought to bear their own experiences as counsel in some of the highest profile criminal matters involving CIPA-related issues, including an extensive discussion of lessons from criminal cases including those of Zacarias Moussaoui and AIPAC lobbyist Steve Rosen. The panelists provided detailed examples of how CIPA issues can arise in white collar matters as well as guidance on (i) how to defend against the government’s invocation of CIPA to withhold classified material and (ii) how to offensively use CIPA to capitalize on the real or possible presence of classified material in aid of the defense.

The panelists explained, in detail, how CIPA, which is not a discovery device, will rear its head in a criminal case, specifically delineating the three general contexts in which it arises in a criminal matter. Ed MacMahon explained how “the first thing that happens is the issuance of an order establishing procedures under CIPA.” The panelists clearly and forcefully emphasized that the constitutional issues that are at play in a criminal proceeding demand that defense counsel constantly be mindful of the importance of the record they are making as they proceed. That said, MacMahon emphasized the importance of counsel not being afraid of CIPA. Though, as Lowell explained, dealing with CIPA issues can be “a very difficult and cumbersome process.” Indeed, often “judges are intimated by the statute,” Dratel said, adding that therefore knowledgeable defense counsel “can be a very important part of the judge’s education.”

The challenges, of course, are significant. For example, the panelists discussed that while the government has the right to take interlocutory appeals of various CIPA-related decision, the defense does not share a parallel right. In addition, while counsel for the defense may be able to secure some level of security clearance to gain access to certain information, in most circumstances the defendant cannot.

In sum, the panelists provided invaluable insight into both the defensive and offensive opportunities presented by this statute. They also provided concrete, practical guidance for conducting a defense where classified information is at play, such as how to leverage different federal agencies’ perceptions of the nature of information in their custody.

As the summer comes to a close, so does NACDL's White Collar Crime CLE Summer Series.  But don't fret, if you weren't able to make it to one or more of these outstanding programs, you can purchase a recording of any or all of them here.

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