Appeal Is Delayed Because Transcripts Might Contain Secrets

By Ruben Castaneda
Washington Post Staff Writer
Saturday, April 28, 2007

A former National Security Agency employee who was convicted in federal court in Greenbelt of unlawfully possessing classified documents has been unable to file an appeal because federal prosecutors won't allow him or his attorney unconditional access to court transcripts, according to court papers.

The reason, according to court filings, federal prosecutors and a legal expert: Some of the material contained in the transcripts could be classified.

Under federal law, classified material cannot be made part of the public record, because doing so would violate the Classified Information Procedures Act, enacted by Congress in 1980 to protect government secrets.

"It's just very, very frustrating," said Spencer M. Hecht, who is representing Kenneth W. Ford Jr. "It's a Catch-22. Their attitude is, 'We can do anything we want, and you can just sit there and wait.' "

The Greenbelt attorney has filed a motion asking U.S. District Judge Peter J. Messitte to compel the government to make the transcripts available for Ford to file an appeal with the 4th Circuit Court of Appeals.

Ford was arrested in 2004, after federal agents found materials containing classified information in his house. Prosecutors said at Ford's trial that he told FBI agents he took the documents home because he wanted to use them as reference points for a new job. He was convicted in December 2005 of unlawfully possessing classified information and making a false statement to a U.S. government agency.

Although the transcripts were completed by a court reporter in September, the government has not allowed the defense to obtain them because the NSA is reviewing the material for classified information, Hecht said in court papers.

To file an appeal, Hecht said, he needs transcripts of pretrial motions hearings, pretrial conferences and bench conferences during the trial. In all, the transcripts would be the equivalent of about two days of trial testimony, at the most, Hecht said in an interview.

In court papers filed March 16, Hecht wrote that he found it "incredible" that the government had not completed its review in the six months the transcripts had been available. Hecht said he was notified this week that the NSA had completed its review, but the CIA was still perusing the transcripts.

Maryland U.S. Attorney Rod J. Rosenstein said that under the classified information act, Hecht can review the transcripts at the Litigation Security Section of the Justice Department. Hecht can even prepare his appellate brief in that secure location, Rosenstein said.

Hecht said that option is unacceptable, because he would need access to documents stored in his computer to file his appeal. Besides, filing an appeal would be irrelevant until the government rules what material is classified, Hecht said.

A hearing on the issue before Messitte is scheduled for Wednesday.

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