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.
The dilemma facing Ford and Hecht is unusual but not unprecedented, said Steve M. Dettelbach, a white-collar criminal defense lawyer in the Washington office of the national firm Baker Hostetler. Before going into the private sector, Dettelbach was counsel to Sen. Patrick J. Leahy (D-Vt.) on the Senate Judiciary Committee and was an assistant U.S. attorney in Maryland; he left that post in 2001.
"Judges and prosecutors and defense attorneys are left with the system Congress has set up to balance the competing interests of individual liberty and national security," Dettelbach said. "The very nature of this prosecution is a great illustration of that balancing."
Justice Department spokesman Dean Boyd said federal prosecutors who work on counterespionage cases report that prosecutions involving unlawful possession or dissemination of classified documents have increased since the Sept. 11, 2001, terrorist attacks. Boyd said no statistics on such prosecutions were available.
"We are seeing increased cases in which classified materials are being mishandled, distributed or possessed unlawfully. We are hoping prosecuting these cases will have a deterrent effect. We're probably more vigilant as well," Boyd said.
Ford, a former uniformed Secret Service officer, worked as a computer expert at the NSA from summer 2001 until early 2004. According to evidence presented by federal prosecutors at Ford's trial, FBI agents -- acting on a tip from a woman who once dated Ford -- raided his Waldorf home and found two cardboard boxes containing classified information.
FBI agents also found classified material in a safe in Ford's bedroom, according to trial testimony.
Hecht argued to jurors that it would have been impossible for Ford to take home classified documents without the proper authority to do so, and that he did not take the documents home. Hecht suggested that a woman who Ford once dated was connected to the NSA and had planted the documents, without his client's knowledge, in Ford's home.
Prosecutors never alleged that Ford tried to sell or give the documents to anyone.
Messitte and the jurors were allowed to view some of the classified material, but none was disclosed in open court or in court papers. Jurors were required to take an oath that they would not disclose the material they viewed, and Hecht was required to obtain top-secret security clearance.
NSA staff members attended the trial and scooped up classified documents at the end of each court day.
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