August 3, 2021

Sketch artists told to hide identities of MI-5 witnesses

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dearie-raymondBy Andrew Keshner, From New York Law Journal

The faces of undercover intelligence agents from MI-5, the United Kingdom’s domestic security service, cannot be sketched when they testify in a terrorism trial—even if they don wigs and light makeup, a federal judge has ruled.

Eastern District Judge Raymond Dearie (See Profile) granted the prosecution’s request Monday (See Motion), telling the sketch artists to draw a “blank face” and “generic hair” though they could otherwise depict the scene accurately.

Ruling from the bench, Dearie said he was well within his authority to forbid any sketching, but he said he was not going to do that. Omitting faces and drawing generic hair, under the circumstances, was an appropriated resolution of the issue, the judge said.

Dearie made the ruling in the ongoing trial against Abid Naseer, who is defending himself in a case that has generated media attention as well as a number of courtroom sketches.

Eastern District prosecutors say the Pakistani defendant was among several al Qaida recruits dispatched to New York, Great Britain and Denmark to carry out attacks. Naseer has pleaded not guilty to charges accusing him of plotting in 2009 to bomb a shopping mall in Manchester, England. Naseer was extradited to the United States in 2013.

He faces a life sentence if convicted in U.S. v. Naseer, 10-cr-19.

The five MI-5 members expected to testify had conducted surveillance on Naseer and alleged co-conspirators for about a month in 2009. They are the only witnesses to many of the preparations for the attack, prosecutors said.

Eastern District Assistant U.S. Attorney Zainab Ahmad said she expected the government to call the MI-5 agents for testimony on Tuesday. She said the government planned to rest its case later this week.

Under the arrangement, prosecutors would have a chance to review the sketches before they were disseminated. If any government objections about sketches arose, Dearie said he would rule on the matter at that time. But he added that he would be surprised if he had to rule on a sketch’s propriety.

The agents are still working undercover in other British national security matters and maintain their cover throughout their career and into retirement, prosecutors said in court papers.

Dearie already had permitted the intelligence officers to use their personal identification numbers instead of their names at trial in a ruling last month. On Sunday, the prosecution filed a letter asking Dearie to prohibit the sketching of images of the five agents.

“Disclosure of the identity and appearance of the officers, even in the form of a sketch, would cause real harm to the United Kingdom and to the shared national security interest of the U.S. and the U.K and would pose a serious risk to the safety of the officers scheduled to testify,” prosecutors wrote, adding, “Public disclosure of their identities, even by way of sketches, would also impair the [MI-5] officers’ ability to operative effectively within the Security Service in the future.”

Dearie heard oral argument on the government application Monday afternoon. He said that in his “30 years, no one’s caught my ravishing good looks to my satisfaction,” prompting chuckles in the courtroom.

John Marzulli, a reporter with the New York Daily News covering the Eastern District, told Dearie there was precedent to blur a witness face in a courtroom sketch. Marzulli submitted courtroom sketches from the Naseer trial and said they were “simply not a photographic likeness.” Marzulli noted that Dearie himself was depicted in the sketches—but that would not lead to someone identifying Dearie “on the street.”

As Marzulli addressed Dearie, members of the British press who have been covering the case stood by in the courtroom well.

Dearie asked the courtroom artists present if he could rely on them to sketch witnesses with “generic faces and generic hair.” The artists, Christine Cornell and Jane Rosenberg, agreed to the conditions.

Yet Ahmad asked for an ex parte conference in Dearie’s chambers to explain the security concerns further.

Naseer asked to be included, but Dearie refused, saying he would tell Naseer if something came up that required defense disclosure.

After at least 10 minutes of discussion in camera, Dearie took the bench and said the situation was “a grave, very serious matter.” As he imposed the restrictions, he noted the prosecution had not made any applications to close the courtroom or have witnesses testify behind screens.

Assistant U.S. Attorneys Celia Cohen and Michael Canty are also handling the prosecution.

Although Naseer is representing himself, he has a legal adviser, James Neuman of Manhattan.

IMAGE: Judge Dearie NYLJ/Rick Kopstein

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