The Second Circuit Court of Appeals at the Thurgood Marshall U.S. Courthouse in lower Manhattan. Photo: Rick Kopstein The Second Circuit Court of Appeals at the Thurgood Marshall U.S. Courthouse in lower Manhattan. (Photo: Rick Kopstein)

The U.S. Court of Appeals for the Second Circuit said on Thursday that a defense attorney's security clearance did not entitle him to access confidential documents submitted to a federal judge in a terrorism prosecution.

The ruling, from a three-judge panel of the Manhattan-based appeals court, came in a 34-page opinion that upheld the conviction of Muhanad Mahmoud Al-Farekh, a U.S. citizen who is serving a 45-year prison sentence for joining al-Qaida and plotting a 2009 car-bomb attack on a U.S. military base in Afghanistan.

Al-Farekh's attorneys had argued in their appeal that a Brooklyn federal judge had improperly denied his trial attorney access to motions filed ex parte under Section 4 of the Classified Information Procedures Act, a key law meant to balance a defendant's rights with the government's need to protect sensitive information in national security prosecutions.

Though the Second Circuit had previously sanctioned ex parte proceedings in CIPA cases, Al-Farekh argued that those decisions applied only when defense counsel did not have proper security clearance and asked the court to allow access when lawyers could meet the threshold.

The Second Circuit, however, declined to "adopt any such bright-line rule" that it said "cannot be reconciled with CIPA."

U.S. Circuit Judge José Cabranes said that, in drafting the CIPA, Congress had not required defense participation in ex parte proceedings, which are considered by the court alone. District court judges, however, are authorized to substitute a summary of the classified information at the government's request, and prosecutors can file an interlocutory appeal for any motion denying a request for a protective order.

"If a defendant's counsel was required to participate in a Section 4 proceeding and be provided access to classified information, as Al-Farekh contends, the alternative relief authorized in these provisions would be rendered insignificant, if not meaningless," Cabranes wrote on behalf on the panel.

In Al-Farekh's case, U.S. District Judge Brian Cogan of the Eastern District of New York met with defense counsel before reviewing the classified material and even revised some of the government's proposed substitutions before approving them, according to the opinion.

"Far from abusing its discretion, the District Court properly exercised its authority under CIPA when it reviewed and adjudicated the Government's CIPA motions ex parte and in camera. We find no basis in CIPA for vacating Al-Farekh's conviction," Cabranes said.

He was joined in the ruling by U.S. Circuit Judge Raymond Lohier and U.S. District Judge Christina Reiss of the U.S. District Court for the District of Vermont, who sat by designation.

A spokesman for the Brooklyn U.S. Attorney's Office declined to comment on the ruling. Lawrence Stern, a Brooklyn attorney who represented Al-Farekh on appeal, was not immediately available to comment.

The case, on appeal, was captioned Al-Farekh v. United States.

 

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