A federal judge took a major step yesterday towards ruling that a former defense employee could share classified information with his lawyer, despite objections by the government.
In a written opinion, Senior Judge Gladys Kessler of the U.S. District Court for the District of Columbia rejected the Justice Department’s motion to dismiss the case of Anthony Shaffer, a former Defense Intelligence Agency employee who sued to allow his lawyer into a classified congressional hearing in which he was scheduled to testify. The opinion said that limiting what Shaffer could say to his attorney would compromise his right to counsel.
In February 2006 Shaffer was scheduled to go before the House Armed Services Committee to discuss his knowledge of project “Able Danger,” a Department of Defense program that had allegedly identified 9-11 hijacker Mohamed Atta as a possible terrorist prior to the attacks. Although his lawyer, solo-practitioner Mark Zaid, had a security clearance, the DIA still refused him access to the classified information he would have needed to attend the hearing.
The agency’s inspector general is now investigating its decision to fire Shaffer and revoke his security clearance, as well as its handling of “Able Danger.” Kessler found that although the Congressional hearings were no longer an issue, the ongoing investigations entitled him to an open relationship with his lawyer.
“A fully candid and comprehensive discussion with his attorney, one that included discussion of the classified aspects of his work on Able Danger, might present opportunities for alternative advocacy options, might open up possibilities for new claims or counter-claims, and might justify additional claims of wrongdoing by defendants,” Judge Kessler wrote.
The judge has yet to issue a final ruling in the case, but Shaffer’s lawyer says the opinion seems to leave little doubt that Kessler will ultimately in his favor.
“The intelligence agencies go out of their way to interfere with the attorney client relationship using the weapon of classification,” says Zaid, a solo-practitioner. “This is a very positive development going forward, and we’ll take it and we’ll run with it.”
Justice Department lawyer Brad Rosenberg, who is representing the government, declined to comment on the case.