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U.S. v. BIN LADEN

June 30, 1999

UNITED STATES OF AMERICA,
v.
USAMA BIN LADEN, A/K/A "USAMAH BIN-MUHAMMAD BIN-LADIN," A/K/A "SHAYKH USAMAH BIN-LADIN," A/K/A "ABU ABDULLAH," A/K/A "MUJAHID SHAYKH," A/K/A "HAJJ," A/K/A "AL QAQA," A/K/A "THE DIRECTOR," A/K/A "THE SUPERVISOR," MUHAMMAD ATEF, A/K/A "ABU HAFS," A/K/A "ABU HAFS EL MASRY," A/K/A "ABU HAFS EL MASRY EL KHABIR," A/K/A "TAYSIR," A/K/A "SHEIKH TAYSIR ABDULLAH," A/K/A "ABU FATIMAH," AYMAN AL ZAWAHIRI, A/K/A "ABDEL MUAZ," A/K/A "DR. AYMAN AL ZAWAHIRI," A/K/A "THE DOCTOR," MAMDOUH MAHMUD SALIM, A/K/A "ABU HAJER AL IRAQI," A/K/A "ABU HAJER," KHALED AL FAWWAZ, A/K/A "KHALED ABDUL RAHMAN HAMAD AL FAWWAZ," A/K/A "ABU OMAR," A/K/A "HAMAD," ALI MOHAMED, A/K/A "ALI ABDELSEOUD MOHAMED," A/K/A "ABU OMAR," A/K/A "OMAR," A/K/A "HAYDARA," A/K/A "TAYMOUR ALI NASSER," A/K/A "AHMED BAHAA ELDIN MOHAMED ADAM," WADIH EL HAGE, A/K/A "ABDUS SABBUR," A/K/A "ABD AL SABBUR," A/K/A "WADIA," A/K/A "ABU ABDULLAH AT LUBNANI," A/K/A "NORMAN," A/K/A "WA'DA NORMAN," FAZUL ABDULLAH MOHAMMED, A/K/A "HARUN," A/K/A "HARUN FAZHL," A/K/A "FAZHL ABDULLAH," A/K/A "FAZHL KHAN," MOHAMED SADEEK ODEH, A/K/A "ABU MOATH," A/K/A "NOURELDINE," A/K/A WEST PAGE 114



The opinion of the court was delivered by: Sand, District Judge.

OPINION

The sixth superseding indictment in this case charges fifteen Defendants with numerous crimes arising from, among other things, the August 1998 bombings of the United States' embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, as well with subsequent attempts to hinder the investigation into those crimes. Five of the Defendants are presently in the custody of the Bureau of Prisons: Mamdouh Mahmud Salim, Ali Mohamed ("Mohamed"), Wadih El Hage ("El Hage"), Mohamed Sadeek Odeh ("Odeh"), and Mohamed Rashed Daoud Al-Owhali.

The Government has asked that the Court file a protective order containing the following language:

    5. No defendant, counsel for a defendant, employee
  of counsel for a defendant, defense witness, or
  Courtroom personnel required by the Court for its
  assistance, shall have access to any classified
  information involved in this case unless that person
  shall first have:
    (a) received approval from either the Government or
  the Court for access to the particular classified
  information in question . . .; and
    (b) . . . agree[d] to comply with the term[s] of
  this Order.
    6. For the purpose of establishing security
  clearances necessary for access to classified
  information that may be involved in the pre-trial
  preparation or trial or appeal of this case, Standard
  Form 86, "Questionnaire for National Security
  Positions," attached releases, and full fingerprints
  shall be completed and submitted to the CSO forthwith
  by all defense counsel, persons whose assistance the
  defense reasonably requires and by such [C]ourtroom
  personnel as the Court requires for its assistance.

(Karas Mf.Ex. K, at 3-4.)

The Department of Justice ("DOJ") regulations governing the clearance application process contain the following provisions:

    (b) Eligibility for access to classified information
  is limited to United States citizens for whom an
  appropriate investigation of their personal and
  professional history affirmatively indicated loyalty
  to the United States, strength of character,
  trustworthiness, honesty, reliability, discretion, and
  sound judgment, as well as freedom from conflicting
  allegiances and potential for coercion, and
  willingness and ability to abide by regulations
  governing the use, handling, and protection of
  classified information. . . .
    (c) The Department of Justice does not discriminate
  on the basis of race, color, religion, sex, national
  origin, disability, or sexual orientation in granting
  access to classified information. However, the
  Department may investigate and consider any matter
  that relates to the determination of whether access is
  clearly consistent with the interests of national
  security. No negative inferences concerning the
  standards for access may be raised solely on the basis
  of the sexual orientation of the employee or mental
  health counseling.

28 C.F.R. § 17.41 (1998).

The Government has also indicated that the CSO would be required to maintain the confidentiality of materials relating to any clearance application and that the DOJ's recommendation with respect to any such application would be furnished only to the Court and the particular applicant. (See Del's Mem. at 40-41.) The regulations governing the clearance procedures provide for appeal within DOJ, see Exec.Order No. 12968, 60 Fed.Reg. 40,245, at Part 5 (1995), and any applicant who received an adverse recommendation could ultimately raise ex parte objections with the Court, which would be the final arbiter of all clearance questions. See generally United States v. Musa, 833 F. Supp. 752, 755-57 (E.D.Mo. 1993) (providing a detailed description of procedures used in a case involving classified information, albeit one in which the Government did not request clearance of counsel).

Defendant Odeh filed a motion objecting to the proposed protective order insofar as it requires his counsel to obtain clearance before viewing classified information. Defendants Mohamed and El Hage subsequently joined this motion at oral argument. (See Tr. Oral Arg. at 15-16).*fn1 The Moving Defendants argue that the Court lacks the authority to require clearance of counsel and that, even if the Court were to possess such authority, exercising it would violate their Sixth Amendment rights. At oral argument on June 22, 1999, counsel for Defendant Odeh moved to intervene in the proceedings "for the limited purposes of asserting defense counsel's independent constitutional rights on this issue." (Tr. Oral Arg. at 27.) Although Defendants Mohamed and El Hage joined in Defendant Odeh's original objection to the protective order, there is no indication that their counsel joined in the motion to intervene. The Court reserved decision on both motions.

DISCUSSION

I. Introduction

We begin with three basic propositions. First, pursuant to Federal Rule of Criminal Procedure 16(d)(1), which governs the use of protective orders with respect to discovery in criminal cases, the Court "may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate."

Second, pursuant to Section 3 of the Classified Information Procedures Act ("CIPA"), Pub.L. No. 96456, 94 Stat. 2025 (1980), codified at 18 U.S.C. app. 3 ยง 3, the Court has the authority to "issue an order to protect against the disclosure of any classified information disclosed by the United States to ...


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