The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.:
On March 2, 2010, a Grand Jury indicted Wesam El-Hanafi ("El-Hanafi") and Sabirhan Hasanoff ("Hasanoff") (collectively, "Defendants"), charging them with providing, and with conspiracy to provide, material support to a foreign terrorist organization, in violation of 18 U.S.C. § 2339B, and with making, and with conspiracy to make, a contribution of funds, goods, or services to a foreign terrorist organization, in violation of 50 U.S.C. § 1705(a). The Government moves for a Protective Order to withholdcertain classified materials from discovery in this case (the "Motion"). The Government has filed the Motion ex parte, for in camera review, pursuant to Federal Rule of Criminal Procedure 16(d)(1) ("Rule 16(d)(1)") and section 4 of the Classified Information Procedures Act ("CIPA"). 18 U.S.C. app. 3 § 4.
The Court first considers the appropriateness of adjudicating the Motion without an adversary proceeding. The Court is mindful of the dangers of allowing ex parte proceedings in criminal cases, given the fundamental need to protect Defendants' due process rights. In re Taylor, 567 F.2d 1183, 1188-89 (2d Cir.1977). The Court's task is made that much more difficult when "the Court does not have available the fundamental instrument for judicial judgment: an adversary proceeding in which both parties may participate." Carroll v. President & Comm'rs of Princess Anne, 393 U.S. 175, 183 (1968).
Nonetheless, ex parte and in camera proceedings are sometimes necessary to determine if the government's assertion of a legitimate privilege in non-disclosure of information will deprive a defendant of constitutional rights. See United States v. Mejia, 448 F.3d 436, 458 (D.C. Cir. 2006).
Both Rule 16(d)(1) and section 4 of CIPA explicitly provide for ex parte filings. Fed. R. Crim. P. 16(d)(1) ("The court may permit a party to show good cause by a written statement that the court will inspect ex parte."); 18 U.S.C. app. 3 § 4 ("The court may permit the United States to make a request for such authorization in the form of a written statement to be inspected by the court alone."). Indeed, "[i]n some cases it would defeat the purpose of the protective order if the government were required to make its showing in open court." Fed. R. Crim. P. 16 advisory committee's note;*fn1 see also United States v. Abu-Jihaad, 630 F.3d 102, 143 (2d Cir. 2010); United States v. Aref, 533 F.3d 72, 81 (2d Cir. 2008). The Court recognizes that Defendants and their counsel are in the best position to know whether information would be helpful to their defense, but notes that in the ordinary course of proceedings neither defense counsel nor the Court would be reviewing materials that the Government believes are not discoverable. See Mejia, 448 F.3d at 458 ("When a court (rather than the prosecutor alone, as is ordinarily the case) reviews evidence in camera to determine whether it constitutes a witness statement subject to disclosure under the Jencks Act, 18 U.S.C. § 3500(b), or exculpatory material subject to disclosure under Brady, the defendant is likewise 'not entitled to access to any of the evidence reviewed by the court . . . to assist in his argument' that it should be disclosed.") (citing United States v. Carson, 2002 WL 31246900, at *1 (D.C. Cir. Oct. 2, 2002); United States v. Zazi, No. 10 Cr. 60, 2011 WL 2532903, at *3 (E.D.N.Y. June 24, 2011) (Gleeson, J.) (finding that an adversary proceeding in this context "would be particularly anomalous, as it would provide defense counsel access to sensitive information to which, if the government is correct, they are not entitled under any theory").
The Court is convinced that, because of the national security interests involved and the highly sensitive nature of the material at issue in this case, an ex parte filing by the Government and in camera review of the materials by the Court is the most appropriate procedure through which to decide the Motion. No less restrictive alternative would protect the Government's interest in preventing the disclosure of the classified materials at issue in this case.
CIPA was enacted in 1980 to establish procedures to balance a
defendant's right to obtain and present exculpatory material against
the government's need to protect classified information.*fn2
In re Terrorist Bombings of U.S. Embassies in East Africa,
552 F.3d 93, 116 (2d Cir. 2008); United States v. Pappas, 94 F.3d 795,
799 (2d Cir. 1996); S. Rep. No. 96-823 at 6 (1980). CIPA establishes
rules to manage criminal cases involving classified information.
CIPA does not expand or restrict established principles of discovery and does not have a substantive impact on the admissibility of probative evidence. United States v. Varca, 896 F.2d 900, 905 (5th Cir. 1990); United States v. Johnson, 139 F.3d 1359, 1365 (11th Cir. 1998). Instead, CIPA "ensures that questions of admissibility will be resolved under controlled circumstances calculated to protect against premature and unnecessary disclosure of classified information." United States v. Baptista-Rodriguez, 17 F.3d 1354, 1364 (11th Cir. 1994).
Discovery in criminal cases is generally governed by Rule 16(d)(1), which provides that: At any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief. The court may permit a party to show good cause by a written statement that the court will inspect ex parte. If relief is granted, the court must preserve the entire text of the party's statement under seal.
Section 4 of CIPA "clarifies district courts' power under Federal Rule of Criminal Procedure 16(d)(1) to issue protective orders denying or restricting discovery for good cause, which includes information vital to the national security." United States v. Stewart, 590 F.3d 93, 130 (2d Cir. 2009) (internal quotation mark omitted).*fn3 Section 4 of CIPA explains that:
The court, upon a sufficient showing, may authorize the United States to delete specified items of classified information from documents to be made available to the defendant through discovery under the Federal Rules of Criminal Procedure, to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove. The court may permit the United ...