The opinion of the court was delivered by: Sidney H. Stein, U.S. District Judge
Defendant Uzair Paracha is charged in a five count indictment with conspiracy and substantive charges of providing material support and resources to al Qaeda; making or receiving a contribution of funds, goods or services on behalf of al Qaeda; and committing identification document fraud with the intent of providing material support to al Qaeda in order to facilitate a terrorist act. According to the indictment, Paracha conspired to provide support to al Qaeda by coming to the United States, posing as a person Paracha knew to be an al Qaeda associate, obtaining immigration documents that would permit the al Qaeda associate to enter the United States, conducting financial transactions involving the al Qaeda associate's bank account, and accepting up to $200,000 of al Qaeda funds to be invested in a business where Paracha was employed until the funds were needed by al Qaeda. During the course of the trial, which concluded with the jury returning a verdict of guilty on all five counts on November 23, 2005, the parties raised a variety of legal issues, all of which were ruled on prior to or during the trial.
Three of those issues -- whether Paracha was entitled to access to prospective defense witnesses whom the government will neither confirm nor deny were in its custody; whether a proposed government expert would be allowed to testify to terrorist tradecraft; and how properly to instruct the jury on the mens rea requirement of the statute that makes it a crime to provide material support to foreign terrorist organizations -- are likely to recur in the future. Accordingly, having subjected its analysis to the crucible of writing, the Court now sets forth with greater specificity the reasoning behind its trial determinations.
Defendant Uzair Paracha has moved pursuant to Rule 15(a)(1) of the Federal Rules of Criminal Procedure for pretrial depositions to preserve testimony for trial of four prospective defense witnesses: (1) his father, Saifullah Paracha; (2) Majid Khan; (3) Ammar al Baluchi and (4) Khalid Sheik Mohammed. He also has petitioned for writs of habeas corpus ad testificandum to compel the presence at trial of those four individuals.
For the reasons set forth more fully below, the Court concludes that because Paracha has not made the necessary showing of materiality of Khalid Sheik Mohammed's anticipated testimony, neither the Sixth nor the Fifth Amendment affords Paracha a right to compel Mohammed's testimony. However, Paracha has made the necessary showing of materiality in regard to Majid Khan and Ammar al Baluchi and the Court rejects the government's contention that separation of powers principles place them beyond the Court's process power. Paracha's constitutional right to present his defense, however, is in tension with significant national security issues presented by his request for deposition or live testimony of these witnesses. Because in this case there is an available alternative -- namely, unclassified summaries of statements made by the witnesses -- the government's refusal to produce Khan or al Baluchi for deposition or trial or even to confirm or deny the government's access to or custody of those individuals does not warrant dismissal of the indictment.
As is also set forth more fully below, defendant's motion for a Rule 15 deposition of his father, Saifullah Paracha, was ultimately granted, but defendant declined to proceed with that deposition and instead pressed his entitlement to a writ for Saifullah's production for testimony at the trial. In light of the significant logistical burdens and the risk to national security that would be posed by Saifullah Paracha's transportation from the U.S. Naval Base in Guantanamo Bay, Cuba -- where he is being held as an enemy combatant by the U.S. Department of Defense -- and his production at trial for live testimony, and in light of the availability to the defense of the alternative of a videotaped deposition of Saifullah Paracha, defendant's request for a writ ad testificandum compelling Saifullah Paracha's testimony at trial is denied.
A. Factual and Procedural Background
On October 8, 2003, Uzair Paracha was charged in a five count indictment with (1) conspiring to provide material support to al Qaeda in violation of 18 U.S.C. § 2339B by coming to the United States, posing as a person Paracha knew to be an al Qaeda associate, obtaining immigration documents that would permit the al Qaeda associate to enter the United States, conducting financial transactions involving that al Qaeda associate's bank account and accepting up to $200,000 of al Qaeda funds to be held as an investment in a business where Paracha was employed until the funds were needed by al Qaeda; (2) providing, or attempting to provide, material support to al Qaeda in violation of 18 U.S.C. § 2339B by knowingly taking possession of identification documents and other items in the name of a person Paracha knew to be an al Qaeda associate, and posing as that person when seeking information concerning the issuance of immigration documents that would permit the al Qaeda associate to enter the United States; (3) violating regulations issued under the International Emergency Economic Powers Act, ("IEEPA"), in violation of 50 U.S.C. § 1705(b), by conspiring to make or receive a contribution of funds, goods, or services to, and for the benefit of, al Qaeda by committing the same acts as set forth in Count One; (4) actually violating the IEEPA regulations by making or attempting to make a contribution of funds, goods or services, by taking the actions outlined in Count Two; and (5) committing identification document fraud, in violation of 18 U.S.C. § 1028(a)(7) and (b)(4), by obtaining and using another individual's means of identification with the intent to provide material support or resources to al Qaeda, in violation of 18 U.S.C. § 2339B, and doing so in order to facilitate an act of international terrorism.
In January 2004, Paracha filed an omnibus pretrial motion seeking, inter alia, depositions pursuant to Rule 15 of the Federal Rules of Criminal Procedure of three prospective defense witnesses: Majid Khan, Khalid Sheik Mohammed and defendant's father, Saifullah Paracha. Rule 15 authorizes a party to move for the deposition of a prospective witness "in order to preserve testimony for trial" and authorizes a court to grant that motion "because of exceptional circumstances and in the interest of justice." Fed. R. Crim. P. 15(a). Exceptional circumstances generally exist if the testimony is material and the witness is unavailable. See United States v. Johnpoll, 739 F.2d 702, 709 (2d Cir. 1984); see also United States v. Grossman, No. S2 03 Cr. 1156, 2005 WL 486735, at *2 (S.D.N.Y. Mar. 2, 2005) (quoting United States v. Cohen, 260 F.3d 68, 78 (2d Cir. 2001)). Paracha asserted on information and belief that the three individuals were unavailable for trial because they were being held in the custody of the United States government in Afghanistan. (See Def's Mem. of Law in Support of Pretrial Motions, at 21).
On November 15, 2004, the Court denied that motion on the ground that Paracha had failed to establish that the witnesses were likely to provide material testimony. (Tr. of Nov. 15, 2004 Conf. at 11). The government did acknowledge that Saifullah Paracha was being held in the custody of the U.S. Department of Defense at the U.S. Naval Base in Guantanamo Bay, Cuba and subsequently disclosed statements made by him during a hearing before the Combatant Status Review Tribunal at Guantanamo Bay. Certain of those statements tended to exculpate Uzair Paracha from involvement in the charged crimes. Following the release of those statements to defendant, Paracha moved for reconsideration of the denial of his Rule 15 motion.
In response to Paracha's motion, the government -- appropriately --conceded that the declassified materials demonstrated the materiality of Saifullah Paracha's testimony to the defense of this action. (Tr. of Feb. 15, 2005 Conf. at p. 3-5). Thereafter, the parties reached agreement regarding procedures for a deposition of Saifullah Paracha at Guantanamo Bay and this Court ordered that a Rule 15 deposition of Saifullah be taken in accordance with those procedures. (Stipulation and Order, dated May 20, 2005). Four months later, by letter dated September 16, 2005, Paracha's counsel informed the government that the defense had decided not to depose Saifullah Paracha, (see Letter from Edward D. Wilford to Karl Metzner, dated Sept. 16, 2005), despite the fact that a deposition had been scheduled to take place twelve days later. (See Letter from Karl Metzner to the Court, dated September 19, 2005, at 1). After declining to take the Court sanctioned Rule 15 deposition of Saifullah Paracha, the defendant sought the issuance of a writ ad testificandum directing the government to produce Saifullah Paracha to testify at trial.
After the release of Saifullah's statements to the Combatant Status Review Tribunal, Paracha had also renewed his motion to depose Majid Khan and Khalid Sheik Mohammed, but asserted that his ability to demonstrate the materiality of their testimony continued to be hindered by his lack of access to those individuals or any statements attributed to them. The government indicated that an additional review of information in its possession was warranted to ensure that all exculpatory materials regarding Khan and Mohammed were disclosed; resolution of defendant's motion for access to Khan and Mohammed was deferred until the government completed that review. (Tr. of Feb. 15, 2005 Conf. at 7-8, 11-12).
On June 13, 2005, the government filed, ex parte and under seal, a Motion for a Protective Order Pursuant to Section 4 of the Classified Information Procedures Act, 18 U.S.C. App. 3, § 4, and Rule 16 of the Federal Rules of Criminal Procedure, seeking an order from the Court authorizing disclosure of unclassified summaries of certain classified documents, in lieu of disclosure of the classified documents themselves, in connection with the government's disclosure obligations pursuant to Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
A week later, the government, appearing ex parte, provided the Court with the underlying classified materials for the Court's review. The Court reviewed those materials, asked for and received clarification regarding certain information and identified certain additional information that the government was required to include in the unclassified summaries to satisfy the government's Brady obligations. (Order, dated July 8, 2005). Pursuant to the Court's Order dated July 8, 2005, the government disclosed the unclassified summaries with the additions required by the Court to the defense. Those unclassified summaries consisted of statements attributed to three individuals: (1) Majid Khan; (2) an individual known to defendant as "Mustafa" who has subsequently been identified as Ammar al Baluchi and (3) an individual known to defendant as "Uzair," who has subsequently been identified as Khalid Sheik Mohammed.
Based on these summaries, the defense again moved pursuant to Fed. R. Crim. P. 15(a)(1) for access to Majid Khan and Khalid Sheik Mohammed for the purpose of securing and preserving their testimony for trial and for the first time also sought permission to depose Ammar al Baluchi. The government continued to oppose the request for access to Mohammed on grounds that his testimony would not be material to the defense and opposed the request for access to Khan or al Baluchi on national security grounds. In light of the conceded materiality of Khan and al Baluchi's testimony, however, the government proposed that the crafting of some substitution for their live testimony was warranted.
The Court first addresses Paracha's request for access to Mohammed, Khan and al Baluchi and then turns to the request for the trial writ for Saifullah Paracha.
B. Access to Khalid Sheik Mohammed, Majid Khan and Ammar al Baluchi
Three of the witnesses to whom Paracha seeks access -- Khalid Sheik Mohammed, Majid Khan and Ammar al Baluchi -- are presumed to be al Qaeda associates (see Unclassified Summaries, Ex. A to Def's Notice of Mot. to Compel Rule 15 Depositions of Certain Individuals & for Bail, "Unclassified Summaries") and are asserted by Paracha to be held in the custody of the United States government in undisclosed locations abroad in connection with the conflict against al Qaeda. Although the government takes the position that national security concerns prohibit it from confirming or denying that it has access to, or custody of, any of these three individuals, it agrees that solely for the purposes of this motion they may be presumed to be held in the custody of the United States abroad. (See Govt's Mem. in Opp. to Paracha's Pretrial Mots., at 15). Paracha asserts a right to compel the production of these individuals to testify in his defense at trial pursuant to the Sixth Amendment's Compulsory Process clause and the Fifth Amendment's Due Process clause. The government insists that even assuming that the individuals are in United States custody, separation of powers principles place them outside the Court's compulsory process power, and thus the Sixth Amendment affords Paracha no right of access to those individuals. The government concedes, however, that the Fifth Amendment may entitle defendant the right to present their testimony in some form. The questions the Court must resolve are (1) whether the individuals are within this Court's compulsory process power; (2) whether Paracha is entitled to an order compelling their production at trial or permitting access for a Rule 15 deposition; and (3) whether some alternative means of presenting the witnesses' testimony to the jury will satisfy Paracha's Sixth and Fifth Amendment rights. The Court addresses each question in turn.
1. The Prospective Witnesses Are Within the Court's Process Power
The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor." U.S. Const. amend. VI. The United States Supreme Court has recognized that "[f]ew rights are more fundamental than that of an accused to present witnesses in his own defense," noting that "[i]ndeed, this right is an essential attribute of the adversary system itself." Taylor v. Illinois, 484 U.S. 400, 408, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988). "'At a minimum,'" the Sixth Amendment encompasses the right of "'criminal defendants . . . to the government's assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt.'" Id. (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987)).
The Sixth Amendment affords a right to compulsory process, however, "only where it is within the power of the federal government to provide it."United States v. Greco, 298 F.2d 247, 251 (2d Cir. 1962). Although the subpoena power of the Court -- the power generally invoked to compel the presence of witnesses at trial pursuant to Fed. R. Crim. P. 17(b) -- does not extend to foreign nationals outside the United States, see United States v. Zabaneh, 837 F.2d 1249, 1259-60 (5th Cir.1988); see also United States v. Herbert, No. 03 Cr. 211, 2005 WL 106909, *1 (S.D.N.Y. Jan. 19, 2005), when a prospective witness is held in custody -- as each of the prospective witnesses here is presumed to be only for purposes of this argument -- the proper procedure is for the defendant to seek the issuance of a writ ad testificandum. See 28 U.S.C. § 2241(c)(5) ("[t]he writ of habeas corpus shall not extend to a prisoner unless . . . [i]t is necessary to bring him into court to testify or for trial"); United States v. Cruz-Jiminez, 977 F.2d 95, 99-100 (3rd Cir. 1992); United States v. Gotti, 784 F.Supp. 1011, 1012-13 (E.D.N.Y. 1992). The proper analysis in this case is not whether the Court can reach the witness through its subpoena power, but whether the Court has the power to issue a writ of habeas corpus ad testificandum to the witnesses' custodian. United States v. Moussaoui, 382 F.3d 453, 464 (4th Cir. 2004), cert. denied, 125 S. Ct. 1670, 161 L. Ed. 2d 496 (Mar. 21, 2005).
Ordinarily, a habeas writ must be served on a prisoner's immediate custodian. However, where, as here, the immediate custodian is unknown, a writ may properly be served on the prisoner's ultimate custodian. See Demjanjuk v. Meese, 784 F.2d 1114, 1116 (D.C. Cir. 1986) (cited in Rumsfeld v. Padilla, 542 U.S. 426, 450, n. 18, 124 S. Ct. 2711, 159 L. Ed. 2d 513 (2004)); see also Moussaoui, 382 F.3d at 465. Here, as in Moussaoui, the Court assumes for the purposes of the motion that the three prospective witnesses are within the custody of the United States military; in such a case, the witnesses' ultimate custodian, the Secretary of Defense, would be "indisputably within the process power" of this Court and "thus a proper recipient of a testimonial writ directing production of the witnesses." See Moussaoui, 382 F.3d at 465. Moreover, even if it were necessary to serve the writ on an immediate custodian, the assumption that the witnesses are held abroad does not place them beyond this Court's compulsory process power because -- as several courts have recognized -- testimonial writs can be issued extraterritorially. See Moussaoui, 382 F.3d at 465-66; (citing Carbo v. United States, 364 U.S. 611, 81 S. Ct. 338, 5 L. Ed. 2d 329 (1961) and Muhammad v. Warden, 849 F.2d 107, 114 (4th Cir. 1988) (explaining why the Supreme Court's historical and statutory analysis in Carbo addressing the extraterritorial application of the writ ad prosequendum applies with equal force to the writ ad testificandum)).
The government contends that separation of powers considerations nonetheless place Mohammed, Khan and al Baluchi beyond this Court's compulsory process powers because any order compelling the production of the witnesses held in connection with the conflict against al Qaeda would impermissibly intrude upon the political branches' exercise of war-making and foreign-relations powers. The government relies primarily upon the Supreme Court's decision in Johnson v. Eisentrager, 339 U.S. 763, 70 S. Ct. 936, 94 L. Ed. 1255 (1950), to support its contention that federal courts lack authority to order a deposition of individuals presumed to be detained as enemy combatants abroad. Such an order, it asserts, would allow terrorists on trial to manufacture a "conflict between judicial and military opinion highly comforting to the enemies of the United States." Eisentrager, 339 U.S. at 779. The government also relies upon the decision issued by the United States Court of Appeals for the Fourth Circuit in Hamdi v. Rumsfeld, 316 F.3d 450, 470 (4th Cir. 2003), vacated, 542 U.S. 507 (2004).
The government insists that compelling it to choose between effectively executing its war-making powers and prosecuting criminal actions would lead to the situation the Fourth Circuit cautioned against in Hamdi, namely that litigation concerns would become the "driving force" for decisions in the field. See id. The government asserts that ordering depositions in cases such as this would embark upon a course by which "judicial involvement would proceed, increment by increment, into an area where the political branches have been assigned a preeminent role." Id. The force of these decisions and their application in this case, however, must be evaluated not only in light of the different rights at issue, but also in light of the Supreme Court's more recent decisions in Rasul v. Bush, 542 U.S. 466, 124 S. Ct. 2686, 159 L. Ed. 2d 548 (2004), which limited the Eisentrager holding, and Hamdi v. Rumsfeld, 542 U.S. 507, 124 S. Ct. 2633, 159 L. Ed. 2d 578 (2004), which vacated the Fourth Circuit's decision. Eisentrager was concerned not with the constitutional rights afforded a defendant facing criminal prosecution but with what constitutional right, if any, enemy aliens detained abroad after having been tried and convicted by a competent military tribunal have to challenge their detention in United States federal courts. See Eisentrager, 339 U.S. at 778, 785. In Rasul, the Court read Eisentrager narrowly, see Rasul, 542 U.S. at 476, and, over similar objections that interference by the courts would contravene separation of powers principles, concluded that federal courts have jurisdiction over habeas claims of aliens detained in military custody in Guantanamo Bay, Cuba, because jurisdiction over the petitioners' custodians is not in dispute and 28 U.S.C. § 2241, the habeas statute, "by its terms, requires nothing more." See id. at 483-84. Rasul also declined to read Eisentrager as limiting federal courts' non-habeas jurisdiction, explaining that the fact that petitioners were detained in military custody outside the United States did not deprive them of the "privilege of litigation" in the federal courts. See id. at 484-85 (internal quotations omitted).
Hamdi also was not concerned with the rights of a defendant facing criminal prosecution, but rather with the level of judicial review that was appropriate on a challenge to executive detention and its designation of a citizen as an "enemy-combatant." See Hamdi, 542 U.S. at 509. Hamdi thus does not provide the answer to the conflict between the demand for access to witnesses and the national security concerns presented in this case. The Supreme Court's decision in Hamdi is instructive, however, insofar as it rejected the assertion that "separation of powers principles mandate a heavily circumscribed role for the courts" in the context of the government's detention of enemy combatants during the ongoing conflict between the United States and al Qaeda. See Hamdi, 542 U.S. at 535-536 (plurality opinion).
Another line of precedent relied upon by the government -- which holds that the Sixth Amendment does not entitle a defendant to an order compelling the prosecution to grant immunity to potential defense witnesses who have invoked their Fifth Amendment right against self-incrimination -- similarly fails to support the government's separation of powers argument.
Although courts recognize that due process protects a defendant from prosecutorial overreaching or misconduct, it is well-established that the Sixth Amendment "of its own force" does not "place upon either the prosecutor or the court any affirmative obligation to secure testimony from a defense witness by replacing the protection of the self-incrimination privilege with a grant of use immunity." See United States v. Turkish, 623 F.2d 769, 774 (2d Cir. 1980). Because concerns associated with granting immunity "are matters normally better assessed by prosecutors than by judges," Turkish, 523 F.2d at 776, even when due process concerns are implicated by evidence of prosecutorial overreaching, courts "leav[e] the immunity decision to the executive branch but interpos[e] the judicial power to subject the government to certain choices of action." United States v. Bahadar, 954 F.2d 821, 826 (2d Cir. 1992); United States v. Salerno, 937 F.2d 797, 807 (2d Cir. 1991) ("the government is in no way required to grant use immunity to a witness called by the defense; it is simply left with a series of choices") (emphasis in original).
In Moussaoui, the Fourth Circuit rejected the government's reliance on this line of cases, reasoning that they in fact stand for the proposition that "courts will compel a grant of immunity, despite the existence of separation of powers concerns, when the defendant demonstrates that the Government's refusal to grant immunity to an essential defense witness constitutes an abuse of the discretion granted to the Government by the Immunity Act." Moussaoui, 382 F.3d at 468 (emphasis in original). As the government notes, however, there is no such abuse of discretion evident here. Although the immunity cases reveal a reluctance to intrude upon matters left to the executive branch, they do not govern this case and do not warrant the conclusion that Paracha's Sixth Amendment right to compulsory process terminates upon an assertion by the government of a national security privilege. The immunity cases recognize that the Sixth Amendment compulsory process power does not give a court the authority to override a prospective witness's invocation of a constitutionally guaranteed privilege, but they do not address the proposition that the Sixth Amendment right to compulsory process is curtailed when it is the government-- as the custodian of a prospective witness -- that asserts its own privilege in opposition to the defendant's demand for testimony.
The Supreme Court has treated defendants' claims differently when it is a governmental privilege that conflicts with a defendant's asserted constitutional right to witnesses or evidence. In determining how to balance Paracha's demand for access to witnesses against the government's assertion of a national security privilege, this Court is guided by those cases. See United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S. Ct. 3440, 73 L. Ed. 2d 1193 (1982); Jencks v. United States, 353 U.S. 657, 77 S. Ct. 1007, 1 L. Ed. 2d 1103 (1957); see also Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957); Moussaoui, 382 F.3d at 474. "It is unquestionably true that the protection of vital national interests may militate against public disclosure of documents in the Government's possession," and it is equally true that the protection of national security may militate against permitting access to the prospective defense witnesses in this case. See Jencks, 353 U.S. at 670. In the context of criminal prosecutions, however, the Supreme Court has repeatedly explained that "the Government can invoke its evidentiary privileges only at the price of letting the defendant go free." Id. at 671 (internal quotations omitted).
The rationale of the criminal cases is that, since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense.
Id. The fair administration of criminal justice requires that evidence be given under appropriate circumstances, as "[t]he very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence." United States v. Nixon, 418 U.S. 683, 709, 711-712, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974). A court's order effectuating a defendant's Sixth Amendment right to access witnesses or evidence does not impermissibly intrude into executive functions; if a defendant demonstrates that evidence would be material and favorable to his defense, a court does not force the government to disclose it but rather it properly leaves the government with a choice: "to decide whether the public prejudice of allowing the crime to go unpunished is greater than that attendant upon the possible disclosure of state secrets and other confidential information in the Government's possession." Jencks, 353 U.S. at 672; see also United States v. Andolschek, 142 F.2d 503, 506 (2d Cir. 1944).
In sum, the government's assertion of a national security privilege does not impair the court's compulsory process power; the Court thus has the authority to issue a writ ad testificandum to the prospective witnesses' custodian. Paracha, however, must demonstrate that such an order is necessary to effectuate his Sixth Amendment right to compel witnesses in his defense.
2. Paracha Is Entitled to Present Khan's and al Baluchi's Testimony in his Defense
The right to compulsory process is not unqualified. Rather, it is subject to "countervailing public interests" that may weigh against a defendant's right to access potential witnesses and compel their testimony. Taylor, 484 U.S. at 414. When it is a governmental privilege that weighs against the defendant's demand for witnesses, a proper balancing requires the defendant to show something more than that the witness could provide testimony relevant to his defense. See Valenzuela-Bernal, 458 U.S. at 872-73; see also Roviaro, 353 U.S. at 60-61.
In Valenzuela-Bernal, the Supreme Court, in analyzing whether a defendant had a right to present the testimony of a witness the government had deported prior to the defendant's trial, explicated what is required for a defendant to prove a violation of the Sixth Amendment when countervailing governmental interests are at stake. See 458 U.S. at 862-63. The Court rejected the test applied by the court below -- the United States Court of Appeals for the Ninth Circuit -- which required only that the defendant demonstrate that the witness's testimony would "conceivably benefit" the defense. Id. at 862 (internal quotation omitted). The Supreme Court expressed concern that the "conceivable benefit" test "misapprehend[ed] the varied nature of the duties assigned to the Executive Branch by Congress." Id. at 863. The Court recognized that the government faced a "dual responsibility" where it was "confronted with the obligation of prosecuting persons . . . on criminal charges, and at the same time obligated to deport other persons involved in the event in order to carry out the immigration policies that Congress has enacted." Id. at 864. Each is a legitimate and vital responsibility -- and the Court cautioned that it would be inappropriate to "minimize the Government's dilemma" in cases where it faces such conflicting responsibilities. Id. at 865-66. The Court concluded that where the government's responsibility to carry out immigration policy justified the prompt deportation of a prospective witness, a violation of the Sixth Amendment does not occur without "some showing that the evidence lost would be both material and favorable to the defense." Valenzuela-Bernal, 458 U.S. at 872-73.
Similarly, in Roviaro, the Supreme Court recognized that "[t]he government generally enjoys a 'privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.'" United States v. Jackson, 345 F.3d 59, 69 (2d Cir. 2003) (quoting Roviaro, 353 U.S. at 59). This privilege is intended to encourage citizens to report criminal activity to the police by protecting the informants' anonymity. See Roviaro, 353 U.S. at 59. This governmental privilege, however, must give way "where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause." See Roviaro, 353 U.S. at 60-61; see also United States v. Saa, 859 F.2d 1067, 1073 (2d Cir. 1988); United States v. Jimenez, 789 F.2d 167, 170 (2d Cir. 1986) (when seeking disclosure of a confidential informant, the "defendant has the heavy burden of showing that disclosure is 'essential to the defense'").
Even in the absence of a specific governmental privilege, courts evaluating requests for writs ad testificandum engage in a similar analysis. See United States v. Cruz-Jiminez, 977 F.2d 95, 99-100 (3d Cir. 1992); United States v. Gotti, 784 F. Supp. 1011, 1012-13 (E.D.N.Y. 1992). In such cases, courts weigh whether the presence of the witness is necessary for an adequate defense against several factors, including any security risks presented by transporting and permitting the witness to testify in court if that witness is incarcerated. See Gotti, 784 F.Supp. at 1012. While the district court's decision to grant or deny a writ ad testificandum is reviewed for abuse of discretion, the exercise of that discretion is "limited by the Sixth Amendment right to have compulsory process for obtaining witnesses in the defendant's favor." Cruz-Jiminez, 977 F.2d at 100.
The principle gleaned from these cases is that when faced with an assertion of a legitimate governmental privilege to preclude access to a potential witness, a defendant must do more than claim that the witness could provide relevant testimony; he must demonstrate that the witness's testimony would be both material and favorable to his defense. See ValenzuelaBernal, 458 U.S. at 867; Roviaro v. United States, 353 U.S. at 60-61. Once the defendant makes this showing, the constitution requires that he be afforded an opportunity to present the testimony at trial. Valenzuela-Bernal, 458 U.S. at 873; Roviaro, 353 U.S. at 60-61; see also United States v. Yunis, 867 F.2d 617, 622-23 (D.C. Cir.1989) (applying the Roviaro standard to a request for classified information). This holds true in cases governed by the Classified Information Procedures Act, ("CIPA"), 18 U.S.C. App. 3, which defines by statute a procedure to protect classified information from unnecessary disclosure while at the same time ensuring that a defendant's right to present evidence in his defense is not compromised. See 18 U.S.C. App. 3, § 6; see also United States v. Fernandez, 913 F.2d 148, 154 (4th Cir. 1990). Even in cases in which it is the governmental interest in protecting national security that precludes a defendant's access to or use of information, the government may not "simultaneously prosecut[e] the defendant and attempt to restrict his ability to use information that . . . is necessary to defend himself against the prosecution." See Fernandez, 913 F.2d at 154.
Regardless of the showing made by a defendant, a court will not require disclosure of information; that decision is ultimately left to the government. But when a defendant seeks disclosure of classified information covered by CIPA and no adequate substitution can be formulated, the court must require the government to choose between disclosure and whatever sanction is necessary to protect the defendant's rights, "presumptively dismissal of the indictment." Moussaoui, 382 F.3d at 476; Fernandez, 913 F.2d at 154. In this case, Paracha's request for an order compelling depositions or trial testimony of Mohammed, Khan and al Baluchi poses significant risks to national security. Paracha must, therefore, demonstrate that the testimony of each witness would be material and favorable to his defense before his Sixth Amendment right to compulsory process to present witnesses in his defense will be implicated. See Valenzuela-Bernal, 458 U.S. at 872-73.
a. Ammar al Baluchi's anticipated testimony
The government alleges that defendant and his father, Saifullah Paracha, met with alleged al Qaeda operatives Ammar al Baluchi and Majid Khan in Karachi, Pakistan, and that defendant, in an effort to enable Majid Khan to re-enter the United States, agreed to help Khan obtain immigration documents, use Khan's credit card in the U.S. and make inquiries regarding Khan's bank account to make it appear as though Khan had never left the United States.*fn1 The government also alleges that Paracha and his father accepted and held approximately $200,000 of al Qaeda funds in exchange for the assistance Paracha agreed to provide to Khan. The government alleges that it was defendant's father who introduced defendant to the al Qaeda operatives, and that Saifullah Paracha had also met with Khalid Sheik Mohammed -- an alleged mastermind of al Qaeda's terrorist plots, including the attack on the World Trade Center -- on more than one occasion.
An essential element of the government's burden of proof on all counts of the indictment is Paracha's knowledge of Khan and al Baluchi's association with al Qaeda and his knowledge that his actions would or could support the al Qaeda organization and not simply its individual members. Accordingly, testimony tending to undermine the government's assertion that Paracha knew or had reason to believe that his alleged co-conspirators were al Qaeda associates is vital to Paracha's defense.
According to the unclassified summary of statements attributed to Ammar al Baluchi, al
Baluchi has stated that neither Paracha nor his father had knowledge of al Baluchi's affiliation with al Qaeda or of al Baluchi's intent to use Saifullah Paracha for a larger operation involving Majid Khan; that al Baluchi "kept his al Qaeda connections hidden" from Saifullah Paracha and that he "intentionally used cover stories and distorted truths to mask his particular interests with Saifullah Paracha during their discussions." (See Uncassified Summaries, at 1). Al Baluchi also is reported to have stated that "[n]either [he] nor Majid Khan indicated to Uzair Paracha at any time that they were mujahidin [sic] or Al Qaeda" and that Saifullah Paracha was unaware of the ...