National Security Case Management:

An Annotated Guide

Robert Timothy Reagan

Federal Judicial Center

2011

This Federal Judicial Center publication was undertaken in furtherance of the 

Center’s statutory mission to develop and conduct research and education programs for the judicial branch. The views expressed are those of the author and not 

necessarily those of the Federal Judicial Center.

iii

Contents

Table of Cases .................................................................................................................. v

Introduction ..................................................................................................................... 1

Part I

Classified Information .................................................................................................... 3

The Classified Information Procedures Act ............................................................... 3

Classified Information Security Officers .................................................................... 6

Security Clearances for Court Staff ............................................................................ 7

Security Clearances for Attorneys .............................................................................. 9

Handling and Storing Classified Information ........................................................... 12

Sharing Classified Information with Criminal Defendants ...................................... 17

Discovery ................................................................................................................. 18

FISA Evidence ......................................................................................................... 19

Civil Cases ................................................................................................................ 21

Other Government Secrets ....................................................................................... 22

Filings and Proceedings ............................................................................................ 23

State-Secrets Privilege .............................................................................................. 27

Silent Witness Rule .................................................................................................. 28

Special Judicial Resources ....................................................................................... 28

Courts of Appeals ..................................................................................................... 29

Putting the Cat Back in the Bag ............................................................................... 32

Part II

Other Issues ................................................................................................................... 33

Attorney–Client Issues ............................................................................................. 33

Criminal Justice Act Appointments ................................................................... 33

Conflicts of Interest ........................................................................................... 34

Communication .................................................................................................. 35

Rapport ............................................................................................................... 36

Conditions of Detention ........................................................................................... 37

Security .............................................................................................................. 37

Access to Counsel .............................................................................................. 38

Mental Health .................................................................................................... 38

Cultural Accommodation ......................................................................................... 39

High Profile .............................................................................................................. 40

Gag Orders ......................................................................................................... 40

Media Attention ................................................................................................. 41

Reserved Seating ................................................................................................ 42

Remote Viewing ................................................................................................ 42

Courtroom Displays of Support or Opposition .................................................. 43

Making Filings and Evidence Available to News Media .................................. 43

Courthouse Security ................................................................................................. 44
iv National Security Case Management (2011)

Jury Issues ................................................................................................................ 45

Size of Venire .................................................................................................... 45

Anonymous Jury ................................................................................................ 46

Jury Questionnaire ............................................................................................. 47

Sequestration ...................................................................................................... 49

News of National Security Events ..................................................................... 50

Special Evidence Issues ............................................................................................ 51

Witness Security ................................................................................................ 51

Foreign Evidence ............................................................................................... 53

Examination of High-Security Detainees .......................................................... 55

Senior Government Officers .............................................................................. 55

Pro Se Issues ............................................................................................................. 56
v

Table of Cases

First World Trade Center Bombing

First World Trade Center Bombing

United States v. Salameh (S.D.N.Y. 1:93-cr-180) ................................ 40, 46, 46, 48, 49, 57

Plot to Bomb New York City Tunnels and Landmarks

United States v. Abdel Rahman (S.D.N.Y. 1:93-cr-181) ................ 13, 33, 34, 46, 48, 49, 50

Plot to Bomb U.S. Airplanes in Southeast Asia

United States v. Yousef (S.D.N.Y. 1:93-cr-180-4) ........................................................ 44, 57

Burma

Horn v. Huddle (D.D.C. 1:94-cv-1756) ....................................................................... 21, 24, 27

Kenya and Tanzania

First Prosecution for 1998 Embassy Bombings

United States v. El-Hage (S.D.N.Y. 1:98-cr-1023)

................................... 8, 10, 17, 18, 24, 34, 35, 36, 37, 38, 40, 43, 44, 46, 47, 48, 50, 51, 56

Prosecution of a Guantánamo Bay Detainee for 1998 Embassy Bombings

United States v. Ghailani (S.D.N.Y. 1:98-cr-1023-9) ......... 18, 24, 33, 39, 42, 47, 48, 49, 51

Millennium Bomber

United States v. Ressam (W.D. Wash. 2:99-cr-666) and

United States v. Haouari (S.D.N.Y. 1:00-cr-15)................... 8, 14, 19, 35, 45, 46, 47, 50, 52, 54

Would-Be Spy

United States v. Regan (E.D. Va. 1:01-cr-405) .................................................................. 10, 14

Detroit

United States v. Koubriti (E.D. Mich. 2:01-cr-80778) ................ 8, 10, 14, 41, 46, 47, 49, 49, 56

Twentieth Hijacker

United States v. Moussaoui (E.D. Va. 1:01-cr-455)

........................................................................... 10, 17, 24, 30, 32, 36, 40, 43, 45, 46, 47, 49, 57

American Taliban

United States v. Lindh (E.D. Va. 1:02-cr-37) ................................................... 14, 19, 22, 52, 55

September 11 Damages

In re Terrorist Attacks on September 11, 2001 (S.D.N.Y. 1:03-md-1570),

In re September 11 Litigation (S.D.N.Y. 1:21-mc-97), and

Related Actions ...................................................................................................... 14, 22, 28, 52

Guantánamo Bay

In re Guantanamo Bay Detainee Litigation (D.D.C. 1:08-mc-442) and

Related Actions ............................................................ 11, 14, 17, 21, 22, 25, 29, 35, 39, 54, 56

Dirty Bomber

Padilla v. Rumsfeld (S.D.N.Y. 1:02-cv-4445),

Padilla v. Hanft (D.S.C. 2:04-cv-2221),

Padilla v. Rumsfeld (D.S.C. 2:07-cv-410),

United States v. Hassoun (S.D. Fla. 0:04-cr-60001), and

Related Actions ................................ 8, 11, 14, 17, 19, 25, 30, 35, 38, 39, 45, 46, 47, 49, 49, 52

Lackawanna

United States v. Goba (W.D.N.Y. 1:02-cr-214) ..................................................... 33, 40, 42, 45

A Plot to Kill President Bush

United States v. Abu Ali (E.D. Va. 1:05-cr-53) ........................................... 11, 14, 17, 30, 52, 54
vi National Security Case Management (2011)

Paintball

United States v. Royer (E.D. Va. 1:03-cr-296),

United States v. Al-Timimi (E.D. Va. 1:04-cr-385),

United States v. Chandia (E.D. Va. 1:05-cr-401), and

United States v. Benkahla (E.D. Va. 1:06-cr-9) ........................................... 5, 11, 19, 25, 36, 40

Minneapolis

United States v. Warsame (D. Minn. 0:04-cr-29) ............................... 5, 9, 11, 15, 20, 37, 38, 39

Mistaken Rendition

El-Masri v. Tenet (E.D. Va. 1:05-cv-1417) ............................................................ 15, 21, 27, 31

Detainee Documents

ACLU v. Department of Defense (S.D.N.Y. 1:04-cv-4151) ........................................... 9, 21, 25

Prosecution of a Charity

United States v. Holy Land Foundation (N.D. Tex. 3:04-cr-240)

............................................................................................... 9, 11, 15, 17, 20, 34, 49, 50, 52, 55

Chicago

United States v. Abu Marzook (N.D. Ill. 1:03-cr-978)................... 5, 9, 11, 15, 25, 37, 47, 53, 55

Giving State Secrets to Lobbyists

United States v. Franklin (E.D. Va. 1:05-cr-225) ......................... 5, 9, 11, 15, 23, 26, 28, 31, 56

Lodi

United States v. Hayat (E.D. Cal. 2:05-cr-240) .................................................... 6, 9, 11, 19, 26

Warrantless Wiretaps

Hepting v. AT&T (N.D. Cal. 3:06-cv-672),

In re NSA Telecommunication Records Litigation (N.D. Cal. 3:06-md-1791),

Al-Haramain Islamic Foundation v. Bush (D. Or. 3:06-cv-274),

ACLU v. NSA (E.D. Mich. 2:06-cv-10204),

Terkel v. AT&T (N.D. Ill. 1:06-cv-2837),

Center for Constitutional Rights v. Bush (S.D.N.Y. 1:06-cv-313),

Electronic Privacy Information Center v. Department of Justice (D.D.C. 1:06-cv-96),

Electronic Frontier Foundation v. Department of Justice (D.D.C. 1:07-cv-403), and

Related Actions .......................................................................... 9, 12, 15, 21, 26, 27, 29, 31, 32

Toledo

United States v. Amawi (N.D. Ohio 3:06-cr-719) and

Related Actions ........................................................................ 20, 36, 37, 38, 45, 47, 48, 50, 53

Atlanta

United States v. Ahmed (N.D. Ga. 1:06-cr-147) ... 6, 9, 12, 16, 20, 27, 35, 40, 42, 42, 44, 48, 58

Sears Tower

United States v. Batiste (S.D. Fla. 1:06-cr-20373) ................................................. 16, 47, 48, 50

Fort Dix

United States v. Shnewer (D.N.J. 1:07-cr-459)

....................................................................... 9, 12, 16, 17, 20, 27, 33, 42, 43, 44, 45, 47, 48, 50

Torture Flights

Mohamed v. Jeppesen DataPlan, Inc. (N.D. Cal. 5:07-cv-2798) ........................... 16, 22, 28, 31
1

Introduction

National security cases come in many types, including terrorism prosecutions, espionage prosecutions, and actions against the government concerning programs 

cloaked in secrecy.

A significant challenge faced by courts presiding over national security cases 

is the handling of classified information. Court proceedings and records are presumptively public, but courts are familiar with sealing selected proceedings and 

records to protect important secrets. Classified information, however, is a special 

type of secret, and its protection is controlled by the executive branch. Generally 

speaking, access to classified information requires a security clearance granted by 

the executive branch and a determination by the executive branch that the person 

granted access has a “need to know.” Article III judges have automatic security 

clearances.

Other challenges that arise in national security cases, especially criminal prosecutions, are often very similar to issues that arise in other cases, but they can occur more frequently and be more serious. For example, special security measures 

used for detainees awaiting trial can be similar to measures used in other cases, 

but they are often on the extreme end of the scale for such measures. Attorney–

client rapport issues in terrorism prosecutions are often among the most challenging. National security cases are also often among the highest in profile.

This annotated guide describes special case-management issues that typically 

arise in national security cases. Guide text is followed by instructive examples 

drawn from a selection of cases that are more fully described in a companion publication, National Security Case Studies: Special Case-Management Challenges

(Federal Judicial Center 2011).

National Security Case Studies includes an illustrative and instructive selection of cases concerning national security issues that have appeared in Article III 

courts. Many of the lessons derived from these cases came from close examinations of the case files and from interviews with presiding judges—especially with 

respect to case-management issues that are not always written up in published 

opinions.

The case note headings here correspond to chapter titles in the Case Studies, 

with a few exceptions: The Case Studies chapter on the “First World Trade Center 

Bombing” includes the prosecution for the bombing itself as well as related prosecutions for a “Plot to Bomb New York City Tunnels and Landmarks” and a “Plot 

to Bomb U.S. Airplanes in Southeast Asia.” The Case Studies chapter titled 

“Kenya and Tanzania” includes the “First Prosecution for 1998 Embassy Bombings” and a much later “Prosecution of a Guantánamo Bay Detainee for 1998 

Embassy Bombings.”

The electronic version of this publication appearing at FJC Online 

(http://cwn.fjc.dcn, on the federal judiciary’s intranet) includes hyperlinks to relevant sections of the Case Studies and to other references. The electronic version 

of the publication appearing on the Internet (at http://www.fjc.gov) does not include hyperlinks.

3

Part I

Classified Information

Classified information is information designated by the executive branch as protected information because its unauthorized disclosure could imperil national security. Classified Information Procedures Act, 18 U.S.C. app. 3 § 1(a) (2006); Exec. Order No. 13,526 § 6.1(i), 75 Fed. Reg. 707 (Jan. 5, 2010); see Robert Timothy Reagan, Keeping Government Secrets: A Pocket Guide for Judges on the 

State-Secrets Privilege, the Classified Information Procedures Act, and Court Security Officers 1–3 (Federal Judicial Center 2007).

There are three levels of classification. “Confidential” information is “information, the unauthorized disclosure of which reasonably could be expected to 

cause damage to the national security that the original classification authority is 

able to identify or describe.” Exec. Order No. 13,526, supra, § 1.2(a)(3). “Secret” 

information is “information, the unauthorized disclosure of which reasonably 

could be expected to cause serious damage to the national security . . . .” Id.

§ 1.2(a)(2) (emphasis added). “Top secret” information is “information, the unauthorized disclosure of which reasonably could be expected to cause exceptionally 

grave damage to the national security . . . .” Id. § 1.2(a)(1) (emphasis added).

The designation “confidential” is used infrequently. Most classified information presented to courts is either secret or top secret.

The executive branch allows only persons with security clearances to see or 

handle classified information. A security clearance is a necessary condition, but it 

is not a sufficient condition. The executive branch also limits access to classified 

information to persons whom it has determined have a “need to know.”

In addition to being classified, information can be designated as “sensitive 

compartmented information” (SCI). Classified information that includes information about sources and methods is often “compartmented,” which means that there 

are additional restrictions placed on access to the information, including a more 

restrictive requirement of need to know. Sources and methods are valuable national security resources of general application, and so they are given extra protection.

A designation of “SCI” is in addition to a designation of confidential, secret, 

or top secret. With respect to access, handling, and storage, the designation of SCI 

is effectively a designation above top secret. Information designated “secret SCI,”

for example, requires greater protection than top secret information that is not 

SCI.

The Classified Information Procedures Act

The Classified Information Procedures Act (CIPA), enacted in 1980, specifies 

procedures for the fair prosecution of criminal cases involving classified information. 18 U.S.C. app. 3 (2006). It does not, by its terms, apply to civil cases, but 

some of its provisions are often used as guidance for the handling of civil cases 

involving classified information.
4 National Security Case Management (2011)

In a terrorism prosecution, the government often has classified evidence 

against the defendant. The government may have additional discoverable classified information relevant to the case. In an espionage prosecution, the defendant 

may also have classified information relevant to the case, which the defendant 

may or may not contemplate introducing into evidence. These are but typical possibilities.

CIPA provides for how to incorporate classified information into a criminal 

case at both the discovery stage and at the trial or hearing stage. Each party has a 

duty to provide notice if classified information is at issue. Id. §§ 5(a), 6(b). Casespecific details are typically addressed at a pretrial conference:

At any time after the filing of the indictment or information any party may move for a 

pretrial conference to consider matters relating to classified information that may arise in 

connection with the prosecution. Following such motion or on its own motion the court 

shall promptly hold a pretrial conference . . . .

Id. § 2.

As in any criminal case, the court may be called on to rule on whether information in the government’s possession is discoverable. In a CIPA case, the court 

is also frequently called on to decide whether classified information in discovery 

can be fairly (1) omitted, (2) summarized, or (3) substituted with an admission.

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.

Id. § 4.

The court’s consideration of whether to limit discovery of classified information or authorize substitutions is typically ex parte, but a record must be preserved 

for appeal. Id.

The court customarily issues a protective order requiring the defense to preserve the secrecy of classified information, and the protective order may limit 

what information can be shared with the defendant by defense counsel. See id.

§ 3.

At a public hearing or trial, the court may authorize the substitution for classified evidence of either (1) a summary or (2) an admission, so long as the substitution “will provide the defendant with substantially the same ability to make his 

defense as would disclosure of the specific classified information.” Id. § 6(c)(1).

A hearing on this issue may be conducted in camera, id., and the court may receive information from the government “explaining the basis for the classification 

of such information” ex parte, id. § 6(c)(2).

Any ruling adverse to the government respecting access to classified information, including a sanction for denying access to classified information, may be resolved by expedited interlocutory appeal. Id. § 7.

If a fair trial necessitates the disclosure of classified information, and the government refuses to disclose the classified information, then the remedy is dismissal of the case or dismissal of one or more counts. Id. § 6(e).
National Security Case Management (2011) 5

It is also possible for the government to declassify information. This typically 

requires negotiation between two parts of the executive branch: the intelligence 

community and the prosecution. At one proceeding, the U.S. attorney observed 

that “the intelligence community always wants the Government to wait as long as 

it possibly can before it declassifies or gets substitutions because every step in 

that direction poses some risk of disclosure of sources, even if we do substitutions.” Transcript at 16, United States v. Ahmed, No. 1:06-cr-147 (N.D. Ga. Sept. 

18, 2008, filed Sept. 23, 2008).

CASE NOTES

Paintball

In the prosecution of Ali al-Timimi, the spiritual leader of northern Virginia men who 

played paintball in preparation for violent jihad, the defendant filed a CIPA motion to use 

classified information at trial. The judge issued a sealed protective order after a sealed 

CIPA hearing.

Minneapolis

Because of a plea agreement, the case against 

Mohamed Abdullah Warsame, who was indicted for attending Al-Qaeda training camps, 

never went to trial, but part of the government’s case relied on classified evidence. The 

government was willing to declassify some of 

the evidence. Pursuant to CIPA, the government asked the judge to approve unclassified 

substitutions for other evidence. The judge 

compared all proposed substitutions with their 

corresponding originals and frequently asked 

for modifications.

Chicago

The prosecution of Muhammad Abdul Hamid 

Khalil Salah for helping to provide funds to 

Hamas involved a substantial amount of classified evidence. Pursuant to CIPA, the judge 

approved five admissions by the government 

as substitutions for classified evidence concerning Salah’s interrogation by Israeli agents 

while he was in Israeli custody. For example, 

the government offered to admit that Israel 

authorized its agents to use hoods, handcuffs, 

and shackles during interrogations. The judge 

found that the substitutions were consistent 

with the agents’ previous testimony, and Salah 

would be able to question the agents at trial 

about his specific treatment. As the trial unfolded, Salah cross-examined the agents extensively, and the vast majority of the topics 

covered did not involve classified information.

To explain to the jury why some topics 

were being skirted during examination of the 

witnesses, the judge prepared a jury instruction to accompany presentation of the admissions:

This case involves certain classified information. Classified information is information or material that has been determined 

by the United States Government pursuant 

to an Executive order, statute, or regulation, 

to require protection against unauthorized 

disclosure. In lieu of disclosing specific 

classified information, I anticipate that you 

will hear certain substitutions for the classified information during this trial. These 

substitutions are admissions of relevant facts 

by the United States for purposes of this trial. The witnesses in this case as well as attorneys are prohibited from disclosing classified information and, in the case of the attorneys, are prohibited from asking questions to any witness which if answered 

would disclose classified information. Defendants may not cross examine a particular 

witness regarding the underlying classified 

matters set forth in these admissions. You 

must decide what weight, if any, to give to 

these admissions.

United States v. Salah, 462 F. Supp. 2d 915, 

924 (N.D. Ill. 2006).

Giving State Secrets to Lobbyists

In a sting prosecution of lobbyists for sharing

classified information, CIPA governed many 

proceedings. Pursuant to section 5(a), the defendants gave notice of their intent to introduce classified evidence at trial. Pursuant to 

section 6, the judge “determined that a substantial volume of the classified information 

was indeed relevant and admissible.” United 

States v. Rosen, 557 F.3d 192, 195 (4th Cir. 

2009). As permitted by section 6(c)(1), the 
6 National Security Case Management (2011)

government proposed redactions and summaries as substitutions for the classified evidence. The judge approved some of the substitutions. “In some instances, the court concluded that less extensive redactions, or the 

use of replacements for particular names, 

places, or terms, would adequately protect the 

defendants’ rights while simultaneously offering adequate protection for classified information.” Id. at 196.

The court of appeals heard expedited interlocutory appeals of the district judge’s CIPA 

rules, as provided by section 7 of CIPA.

Lodi

In the prosecution of Hamid Hayat for attending a terrorist training camp, and of his father 

Umer for lying about it, the government filed 

a notice that CIPA may apply to the case because of potentially discoverable classified 

evidence. In the end, the only classified evidence at issue was foundational to unclassified 

trial evidence, and the defense attorneys were 

willing to stipulate to the trial evidence’s admissibility.

Atlanta

In a prosecution of two young men in Atlanta 

for preparing for violent jihad by, among other 

things, making casing videos of strategic 

landmarks, some classified evidence had to be 

either declassified or substituted with courtapproved summaries or admissions before it 

was presented at trial, and in some instances 

before it could be shared with defense counsel.

Classified Information Security Officers

The Department of Justice provides the courts with security experts who help the 

courts store and handle classified information and who help court staff and attorneys obtain security clearances.

CIPA provides for the designation of “classified information security officers,” formerly and ambiguously known as “court security officers,” to assist the 

court in keeping classified information secure.

Section 9 of CIPA calls for the Chief Justice to write procedural rules:

Within one hundred and twenty days of the date of the enactment of this Act, the 

Chief Justice of the United States, in consultation with the Attorney General, the Director 

of National Intelligence, and the Secretary of Defense, shall prescribe rules establishing 

procedures for the protection against unauthorized disclosure of any classified information in the custody of the United States district courts, courts of appeal, or Supreme 

Court. Such rules, and any changes in such rules, shall be submitted to the appropriate 

committees of Congress and shall become effective forty-five days after such submission.

18 U.S.C. app. 3 § 9(a) (2006).

CIPA “Security Procedures,” issued in 1981 by Chief Justice Burger and revised in 2010 by Chief Justice Roberts, specify how classified information security officers are designated:

2. Classified Information Security Officer. In any proceeding in a criminal case or appeal therefrom in which classified information is within, or is reasonably expected to be 

within, the custody of the court, the court will designate a “classified information security 

officer.” The Attorney General or the Department of Justice Security Officer will recommend to the court a person qualified to serve as a classified information security officer. This individual will be selected from the Litigation Security Group, Security and 

Emergency Planning Staff, Department of Justice, to be detailed to the court to serve in a 

neutral capacity. The court may designate, as required, one or more alternate classified 

information security officers who have been recommended in the manner specified 

above.

18 U.S.C. app. 3 § 9 note (2006).
National Security Case Management (2011) 7

The Justice Department has established a unit in its Management Division 

called the Litigation Security Group that consists of information security experts 

who are detailed to the courts. This unit is by design organizationally quite separate from the parts of the Justice Department that represent the government’s interests in court cases. This unit, although expert in protecting classified information, is also separate from the intelligence community. It is to the Litigation Security Group whom courts should turn for guidance on matters relating to classified 

information. Although courts may be more familiar with the attorneys 

representing the government, it is the Litigation Security Group whose primary 

purpose is to provide the courts with neutral assistance. Their specific guidance is 

also superior to the general guidance presented here.

In a criminal case, if it is likely that the court will have to handle classified information, the Department of Justice Security Officer, who is the head of the department’s Security and Emergency Planning Staff (SEPS), a unit in the Justice 

Management Division that includes the Litigation Security Group, recommends a 

security officer in the Litigation Security Group as the classified information security officer for the case. The recommendation is presented by letter to the presiding judge. Typically, the letter also recommends other security officers as alternates.

The presiding judge should appoint the security officer and alternates to the 

case by order. The judge may include this appointment in a protective order specifying defense attorneys’ responsibilities in handling classified information. In a 

civil case involving classified information, the court should also contact the Litigation Security Group and appoint a classified information security officer to the 

case.

It is common for the security officer to deliver classified materials to the judge 

for in camera review. The security officer will advise the judge on security precautions for the review, such as keeping windows covered or doors closed. It is 

not necessary for security officers to watch a judge review classified material. Security officers generally remain available while a judge reviews classified material in private and return to the judge when the judge is finished reviewing the material.

Another important role of the security officer is to attend public proceedings 

in order to assist the court in preventing public disclosure of classified information.

Security Clearances for Court Staff

Article III judges are automatically cleared to see classified information necessary 

to the performance of their judicial function. 18 U.S.C. app. 3 § 9 note (2006); see

Robert Timothy Reagan, Keeping Government Secrets: A Pocket Guide for 

Judges on the State-Secrets Privilege, the Classified Information Procedures Act, 

and Court Security Officers 3 (Federal Judicial Center 2007). Magistrate judges 

do not have automatic clearance, so they require a background check before they 

can have access to classified information. Because of the background check necessary to become a magistrate judge, this process typically takes a matter of 
8 National Security Case Management (2011)

days. Background checks for other court personnel typically take a matter of 

months. In some cases, interim clearances can be granted while the background 

investigation is under way. Only United States citizens are eligible for security 

clearances.

The Litigation Security Group will facilitate security clearances for court personnel. Judges in courts that frequently have cases involving classified information commonly require their law clerks to obtain security clearances. It is useful to 

begin the clearance process when the law clerk is hired and not wait until the law 

clerk begins work.

Most courts have to deal with classified information only occasionally, so it is 

common for court personnel to seek security clearances only when a case requiring clearances presents itself. Court personnel who already have security clearances sometimes assist with cases to which they otherwise would not be assigned.

Judges sometimes decide to work on classified information without staff assistance.

Levels of security clearance relevant to the court’s work usually include

(1) secret, (2) top secret, or (3) TS/SCI (top secret/sensitive compartmented information). A higher security clearance requires a more extensive background 

check. Because it is not always possible to know with precision in advance what 

level of classification will be involved in a case, the Litigation Security Group 

customarily initiates FBI background checks on court personnel sufficiently extensive for them to be cleared at the highest level if necessary.

Access to specific classified information is limited to persons with the appropriate security clearance and a “need to know.” Occasionally, classified information is designated for judges’ eyes only, and even law clerks with high security 

clearances cannot see the information.

CASE NOTES

First Prosecution for 1998 Embassy 

Bombings

In the original prosecution for the 1998 bombings of American embassies in Kenya and 

Tanzania, the district judges’ law clerks had 

security clearances. Among the judges who 

heard the original defendants’ appeals, one 

judge regularly asks his law clerks to obtain 

security clearances, but another judge has 

never had a law clerk obtain one.

Millennium Bomber

In the prosecution of Ahmed Ressam, who 

planned to bomb the Los Angeles International Airport at the turn of the millennium, the 

district judge reviewed classified material to 

determine whether it was discoverable. The 

judge did this without the assistance of a law 

clerk, because there was not enough time for a 

clerk to obtain a top-secret security clearance.

Detroit

To assess the extent of prosecutorial misconduct in the first post-September 11, 2001, prosecution for terrorism, the judge had to review 

the prosecution’s entire case file, which included extensive classified information. All of 

the judge’s staff obtained security clearances.

Dirty Bomber

The District of South Carolina district judge 

assigned to consider a habeas corpus petition 

by Jose Padilla—originally detained as an alleged dirty bomber but later tried for terrorism 

conspiracy—prepared for the possibility of 

classified evidence in the case by having his 

two law clerks, his judicial assistant, a courtroom deputy, and a court reporter obtain security clearances. Because Padilla’s attorneys 

wanted his habeas petition decided on legal 

grounds rather than factual grounds, classified 
National Security Case Management (2011) 9

evidence was never an important issue in the 

case, and it was not an issue at all during oral 

arguments. The judge examined some classified evidence at the court’s sensitive compartmented information facility (SCIF) in 

Charleston, but there was no need for his staff 

to do so.

The Southern District of Florida district 

judge who heard the criminal trial of Padilla 

and his two codefendants also had all of her 

staff obtain security clearances: her law 

clerks, her judicial assistant, her courtroom 

deputy, and her court reporter. During this 

case, the judge did not use interns, because 

they would not have security clearances.

Minneapolis

In the prosecution of Mohamed Abdullah 

Warsame for attending Al-Qaeda training 

camps, the district judge’s staff obtained security clearances. The district judge presided 

over pretrial matters that would ordinarily go 

to a magistrate judge so that another chambers’ staff would not have to obtain security 

clearances.

Detainee Documents

The Southern District of New York judge who 

heard a Freedom of Information Act case concerning extraterritorial detentions of terrorism 

suspects has all of his law clerks obtain security clearances. The clerks begin the process of 

obtaining clearances before they start work.

Prosecution of a Charity

The prosecution of the Holy Land Foundation 

and its principals for providing funds to Hamas required two trials because of a hung jury 

after the first one. Law clerks and other staff 

members for the judges presiding over both 

trials received security clearances.

Chicago

For a prosecution of Muhammad Abdul Hamid Khalil Salah for helping to provide funds 

to Hamas—a trial that involved a substantial 

amount of classified evidence relating to Salah’s imprisonment in Israel—the judge’s law 

clerks sought security clearances. Because the 

clearance process took a substantial fraction of 

the law clerks’ tenure, the judge handled classified issues without law clerk assistance. It 

was necessary, however, for a court reporter 

working on the case to have a security clearance.

Giving State Secrets to Lobbyists

The judge who presided over a sting prosecution of lobbyists for sharing classified information has a career law clerk with a security 

clearance. One of the judge’s temporary law 

clerks during the time of this case, however, 

was a Canadian citizen, so he was not eligible 

for a security clearance.

Lodi

For the prosecution of Hamid Hayat for attending a terrorist training camp, and of his 

father Umer for lying about it, the presiding 

judge’s court reporter obtained a security 

clearance, and as a backup precaution another 

court reporter at the courthouse did as well.

Warrantless Wiretaps

In actions challenging a secret and allegedly 

illegal surveillance program by the National 

Security Agency, all classified information 

presented to the court was designated by the 

government as for judges’ eyes only, and not 

even law clerks with security clearances were 

permitted to see it.

Atlanta

In a prosecution of two young men in Atlanta 

for preparing for violent jihad by, among other 

things, making casing videos of strategic 

landmarks, court staff had to obtain security 

clearances. This included magistrate judges, 

who do not have the same automatic security 

clearances as Article III judges.

Fort Dix

In a prosecution of six men for conspiracy to 

attack Fort Dix, all of the judge’s staff—law 

clerks, court reporters, courtroom deputies, 

and the judicial assistant—received security 

clearances. The judge observed that the clearance process went smoothly.

Security Clearances for Attorneys

If classified information is at least discoverable in a criminal case, it is customary 

for the defendant’s attorneys to have security clearances. In districts in which 
10 National Security Case Management (2011)

such cases are common, there may be local criminal defense attorneys who already have security clearances. Often, the case at hand is an attorney’s first need 

for a clearance.

The Litigation Security Group can facilitate security clearances as needed for 

defense attorneys and for persons working with defense attorneys, such as paralegals and investigators. It is customary for obligations to preserve the secrecy of 

classified information to be specified in a protective order signed by the judge and 

in a memorandum of understanding signed by the persons granted clearance.

The Federal Judicial Center has assembled a selection of protective orders 

used in national security cases: National Security Prosecutions: Protective Orders. Judges should consult the classified information security officer when drafting national security protective orders.

In some cases, an attorney may be denied a security clearance or the attorney 

may decline to seek one. The court might replace the attorney unless there is 

another cleared attorney on the defense team, or the court might make a special 

appointment of a cleared attorney to work on issues in the case pertaining to classified information.

The Litigation Security Group can also facilitate security clearances for attorneys in civil cases, including habeas corpus cases. The government’s willingness 

to actually grant plaintiffs’ attorneys access to classified information in civil cases 

challenging the government depends on the circumstances of the case.

In any case involving classified information, it is often useful for the judge to 

meet jointly with attorneys and the classified information security officer early in 

the case.

CASE NOTES

First Prosecution for 1998 Embassy 

Bombings

In the original prosecution for the 1998 bombings of American embassies in Kenya and 

Tanzania, defense counsel had to have security clearances in order to have access to classified evidence. The court of appeals affirmed a 

district judge’s ruling that requiring security 

clearances for defense attorneys did not violate their clients’ Sixth Amendment rights. In 

re Terrorist Bombings of U.S. Embassies in 

East Africa, 552 F.3d 93, 119–28 (2d Cir. 

2008); see United States v. Bin Laden, 58 F. 

Supp. 2d 113 (S.D.N.Y. 1999).

Would-Be Spy

In the prosecution of Brian Patrick Regan for 

attempted espionage, defense attorneys had 

security clearances, and the defendant himself 

was cleared to see some classified information 

related to the information he was accused of 

trying to sell. United States v. Regan, 281 F. 

Supp. 2d 795, 801 (E.D. Va. 2002).

Detroit

An assessment of prosecutorial misconduct in 

the first post-September 11, 2001, prosecution 

for terrorism required review of the prosecution’s entire case file, which included extensive classified information. Defense attorneys 

were required to obtain security clearances.

The district judge in this case recommends 

that a judge in a case that might include classified information meet early with attorneys to 

discuss how much classified information is at 

issue and who will need security clearances. It 

is important to establish contact with the Litigation Security Group as soon as it is known 

that the case might involve classified information.

Twentieth Hijacker

In the prosecution of Zacarias Moussaoui for 

terrorism conspiracy, the defendant’s attorneys obtained security clearances and signed a 

memorandum of understanding requiring that 

classified secrets be kept secret forever. Unit-
National Security Case Management (2011) 11

ed States v. Moussaoui, 591 F.3d 263, 267 

(4th Cir. 2010).

Guantánamo Bay

Habeas attorneys representing Guantánamo 

Bay detainees needed security clearances to 

visit their clients.

Among the Guantánamo Bay detainees 

who filed habeas corpus petitions was Abu 

Zubaydah, a senior Al-Qaeda figure who was 

treated for frequent seizures. The district court 

ordered the government to grant Abu Zubaydah’s attorneys, who had security clearances, 

access to his medical records so that they 

could investigate whether side effects from 

medical treatment at Guantánamo Bay were

interfering with his ability to communicate 

effectively with his attorneys, despite the government’s initial determination that portions 

would be redacted for lack of a need to know. 

Dirty Bomber

In the trial of Jose Padilla, originally detained 

as a dirty bomber but ultimately tried with two 

other men for terrorism conspiracy, all defense attorneys received security clearances.

A Plot to Kill President Bush

In the prosecution of Ahmed Omar Abu Ali 

for terrorism conspiracy and conspiracy to kill 

the President, some of the evidence against the 

defendant was classified. One of the defendant’s attorneys was denied a security clearance and the other did not apply for one, so 

the court appointed an attorney who already 

had a clearance. United States v. Abu Ali, 528 

F.3d 210, 248–49 (4th Cir. 2008). Only the 

cleared attorney, and not the defendant or either uncleared attorney, was allowed to see 

classified evidence or participate in hearings 

in which classified evidence was discussed.

Paintball

On appeal from the conviction of Ali alTimimi, the spiritual leader of northern Virginia men who played paintball in preparation 

for violent jihad, the court of appeals remanded the case for an investigation of possibly discoverable surveillance. On remand, the 

government presented to the judge classified 

submissions that neither the prosecuting nor 

the defense attorneys were cleared to see. The 

judge issued an order that her law clerk and 

the attorneys be granted clearance to examine

at least some of the secret submissions.

Minneapolis

In the prosecution of Mohamed Abdullah 

Warsame for attending Al-Qaeda training 

camps, the defendant’s attorneys obtained security clearances. The court initially appointed 

the federal defender’s office to represent Warsame. The defendant’s supporters, however, 

thought that retained counsel would provide 

better representation, so they hired a law professor in Chicago to represent Warsame. Because the professor could not identify local 

counsel likely to obtain a security clearance, 

the court kept the federal defender’s office as 

second counsel.

Prosecution of a Charity

In the prosecution of the Holy Land Foundation and its principals for providing funds to 

Hamas, defense attorneys received security 

clearances.

Chicago

In the prosecution of Muhammad Abdul Hamid Khalil Salah for helping to provide funds 

to Hamas—a prosecution that involved a substantial amount of classified evidence relating 

to Salah’s imprisonment in Israel—defense 

counsel elected not to seek security clearances, so the judge resolved evidentiary issues 

by holding ex parte conferences with defense 

counsel to determine their defense needs and 

ex parte conferences with government counsel 

to determine what classified information the 

government held.

Giving State Secrets to Lobbyists

In a sting prosecution of lobbyists for sharing 

classified information, defense attorneys had 

security clearances, and some witnesses for 

the defense also had security clearances.

Lodi

In the Sacramento prosecution of Hamid 

Hayat for attending a terrorist training camp,

and of his father Umer for lying about it, the 

government filed a notice that it had potentially discoverable classified evidence. Defense 

attorneys did not want to obtain security 

clearances, so the judge looked for other local 

attorneys who already had clearances. The 

classified information security officer could 

not find a local defense attorney with a securi-
12 National Security Case Management (2011)

ty clearance, but he was able to identify two in 

a neighboring district who were cleared. Because the defendants were willing to stipulate 

to the admissibility of trial evidence that had 

classified information as part of its foundation, having cleared counsel ultimately was

not necessary.

Warrantless Wiretaps

In an action challenging a secret and allegedly 

illegal surveillance program—an action arising from evidence of surveillance in a topsecret document mistakenly disclosed to an 

Islamic charity during proceedings to freeze 

the charity’s assets for allegedly funding terrorism—the plaintiffs were required to surrender all copies of the document, and they 

were forbidden by the government from having access to the copy they delivered to the 

court. Al-Haramain Islamic Found. v. Bush, 

451 F. Supp. 2d 1215, 1217, 1229 (D. Or. 

2006).

Attorneys representing the government told 

the court that they were not at liberty to disclose whether or not they had clearance to see 

the document.

The action was consolidated with other actions, for pretrial purposes, by the Judicial 

Panel on Multidistrict Litigation, and the 

transferee judge ordered the government to 

give the plaintiffs’ attorneys security clearances and access to the document. In re NSA 

Telecomm. Records Litig., 595 F. Supp. 2d 

1077, 1089–90 (N.D. Cal. 2009). Two attorneys for the plaintiffs received security clearances, but the government decided that pursuing the action against the government was 

not a sufficient “need to know” required for 

access to the document.

Atlanta

In a prosecution of two young men in Atlanta 

for preparing for violent jihad by, among other 

things, making casing videos of strategic 

landmarks, defense attorneys had to obtain 

security clearances.

Fort Dix

In a prosecution of six men for conspiracy to 

attack Fort Dix, the defense attorneys needed 

security clearances.

Handling and Storing Classified Information

Courts and attorneys for parties other than the federal government must rely on 

the Litigation Security Group for guidance on handling and storing classified information. Following are summary guidelines, but the classified information security officers provided by the Litigation Security Group are the experts.

Security requirements for classified information depend on the level of classification. A person handling classified information must have a security clearance 

at least as high as the information’s level of classification. Handling classified information includes not only reviewing it but also carrying it from a place of storage to a judge for review. A person handling top secret information, for example,

must have at least a top secret security clearance, but only a secret security clearance is required to handle secret information. A TS/SCI security clearance is required to review SCI (sensitive compartmented information). In addition, access 

to classified information will be restricted to persons who “need to know.”

Classified information must not be reviewed in the presence of persons without an appropriate security clearance and must never be reviewed in public.

Classified documents are marked with the applicable level of classification. 

Each paragraph of a classified document should be marked with the level of classification for the paragraph: (U) for unclassified, (C) for confidential, (S) for secret, (TS) for top secret, and (TS/SCI) for top secret/sensitive compartmented information. The level of classification for a document is the highest level of classification among its parts.
National Security Case Management (2011) 13

Confidential, secret, and top secret material must be stored in an approved 

safe in a secure room. The classified information security officer will provide a 

suitable safe and will work with the court to identify or help establish a suitable 

room. Judges presiding over cases involving classified information typically keep 

a safe suitable for storing classified materials in their chambers. If defense attorneys need to review classified materials, the court and the classified information 

security officer typically identify a secure room for this purpose and establish a 

safe to store the materials.

SCI must be stored in a sensitive compartmented information facility (SCIF). 

A SCIF (customarily pronounced “skiff”) is a room, sometimes a building, that 

meets certain security specifications, such as slab-to-slab construction, special 

locks, and an alarm system connected to armed security guards. If a courthouse 

does not already have a SCIF, and it is determined that one is needed at the courthouse, then the classified information security officer will establish one, at the executive branch’s expense. 18 U.S.C. app. 3 § 9 note ¶ 12 (2006). Alternatively, 

the classified information security officer can often locate a SCIF nearby for the 

court’s use.

U.S. attorney offices and FBI offices often have SCIFs. Although judges 

sometimes express reluctance to use these for the court’s work, the classified information security officer can establish protective measures suitably limiting 

access to stored materials. If classified materials are stored in a SCIF for use by 

the court or a party opposing the government, and the SCIF is not under the 

court’s control, then the materials will be stored within the SCIF in a way that 

permits only the classified information security officer and the judge or attorney, 

as the case may be, to have access to the materials. Designated safes or locked 

bags are often used for this purpose.

Any document based on classified information, such as notes, briefs, and opinions, may be classified at the highest level of classification of the material on which 

the document is based. Storage requirements for the derivative document, therefore, 

may be the same as the storage requirements for the classified material on which it 

is based. Typically, the classified information security officer coordinates a security 

review to determine the level of classification, if any, for a derivative document.

Classified information cannot be discussed or transmitted by email or over a 

non-secure telephone line.

Court personnel with security clearances may transport classified material 

from the place of storage to the place of review for a judge or other persons.

CASE NOTES

Plot to Bomb New York City Tunnels 

and Landmarks

In the prosecution for a conspiracy to bomb 

New York tunnels and landmarks, the government presented six classified exhibits ex 

parte to the district judge, pursuant to CIPA.

United States v. Rahman, 870 F. Supp. 47, 49 

(S.D.N.Y. 1994). The judge kept the exhibits 

in a safe while he considered whether they had 

to be produced to the defense. He ruled which 

exhibit had to be disclosed to the defense, ordered that it not be disclosed to anyone else, 

and ordered that all of the exhibits be kept under seal with the classified information security officer.
14 National Security Case Management (2011)

Millennium Bomber

In the prosecution of Ahmed Ressam, who 

planned to bomb the Los Angeles International Airport at the turn of the millennium, the 

district judge reviewed classified materials to 

determine whether the materials were discoverable. The judge kept the materials in a safe 

to which the classified information security

officer, but not the judge, had access. The 

judge preferred not to have to deal with the 

lock and combination himself.

Would-Be Spy

In the prosecution of Brian Patrick Regan for 

attempted espionage, the government discovered in the defendant’s jail cell what appeared 

to be coded messages to his wife and children 

concerning the locations of hidden information. United States v. Regan, 281 F. Supp. 2d 

795, 800, 804–05, 807 (E.D. Va. 2002). The 

government wanted to search the defense 

SCIF to look for evidence that the documents 

were improperly created on a computer there. 

The district judge did not allow the U.S. Attorney’s Office or the FBI to conduct the 

search; instead, he authorized the classified 

information security officers to conduct the 

search.

Detroit

An assessment of prosecutorial misconduct in 

the first post-September 11, 2001, prosecution 

for terrorism required review of the prosecution’s entire case file, which included extensive classified information. Classified information security officers created a SCIF in the 

courthouse. Only chambers staff with security 

clearances could enter this SCIF.

The judge also had to review extensive 

highly sensitive records maintained at CIA 

headquarters. He negotiated with the CIA’s 

general counsel to establish a protocol for use 

of the CIA’s evidence. Because many of the 

CIA records were too sensitive to transport to 

Michigan, the judge traveled to Virginia to 

review them.

American Taliban

In the prosecution of John Walker Lindh, who 

became known as the American Taliban, the 

government’s classified evidence that the district judge reviewed for discoverability was 

stored in the court’s SCIF. The judge’s law 

clerks typically obtain security clearances, and 

classified materials are kept within eyesight at 

all times.

September 11 Damages

In the consolidated civil actions against alleged supporters of the September 11, 2001, 

attacks, plaintiffs supported a discovery motion with anonymously leaked documents that 

the plaintiffs knew were sensitive and suspected might be classified. The attorneys delivered the documents to the court, sent copies 

to the U.S. attorney, and provided defendants 

with only a copy of the transmittal letter. The 

government determined that at least some of

the documents were classified, so the court’s 

copies were securely stored. The plaintiffs 

were required to surrender their copies of the 

documents.

Guantánamo Bay

After news media reported that classified information about Guantánamo Bay detainees 

became available on the Internet as a result of 

unauthorized disclosures to WikiLeaks,

cleared habeas attorneys for the detainees 

were admonished not to allow their knowledge of properly disclosed classified information to provide clues, by words or by actions, 

as to the authenticity of any leaked purportedly classified information.

Dirty Bomber

In the trial of Jose Padilla—who was originally detained as a dirty bomber but ultimately 

tried with two other men for terrorism conspiracy—classified information was reviewed 

by defense attorneys in the court’s basement 

SCIF. Both the judge and the defense attorneys viewed classified videos of interrogations of Padilla conducted while he was in 

military detention.

The judge reviewed, as provided by CIPA, 

an evidentiary substitute for classified evidence. An agent of the intelligence agency 

with authority over the evidence brought the 

original evidence to the classified information 

security officer, who delivered it to the judge 

in chambers for her private review in her office while the agent and the security officer 

waited outside her door.

A Plot to Kill President Bush

In the prosecution of Ahmed Omar Abu Ali 

for terrorism conspiracy and conspiracy to kill 
National Security Case Management (2011) 15

the President, classified evidence was stored 

in the court’s SCIF.

Minneapolis

The case against Mohamed Abdullah Warsame, who was prosecuted for attending AlQaeda training camps, relied on classified 

evidence. Early in the case, the government 

produced to defense counsel discoverable 

classified evidence, and the attorneys reviewed the classified material in a secure 

room at the courthouse, which included a safe 

suitable for storing classified materials. The 

attorneys had to prepare any documents based 

on or referring to classified material in the secure room. The court reporter, who had a security clearance, also had to work on transcripts containing classified information in 

this room and store computer equipment she 

used for such transcripts in the safe. The judge 

could keep classified materials in a safe in his 

chambers office.

Mistaken Rendition

Relying on a classified declaration presented 

for the judge’s eyes only, the district court 

dismissed a complaint, on state-secrets 

grounds, alleging that the CIA abducted and 

imprisoned Khaled el-Masri until it realized 

that it had picked up the wrong person. ElMasri v. Tenet, 437 F. Supp. 2d 530 (E.D. Va. 

2006), aff’d, 479 F.3d 296 (4th Cir. 2007).

The classified declaration was delivered to the 

judge by a classified information security officer, who took responsibility for storing the 

declaration when the judge was not privately 

reviewing it.

Prosecution of a Charity

The prosecution of the Holy Land Foundation 

and its principals for providing funds to Hamas was based in part on classified evidence, 

including information obtained under the Foreign Intelligence Surveillance Act and information provided by the government of Israel. 

A second trial was required because of a hung 

jury after the first one. The judges presiding 

over the two trials each kept classified documents in a chambers safe. The court found 

space that could be fitted as a secure room for 

defense counsel to store and review classified 

documents; a separate safe was established for 

each defendant.

Chicago

For the prosecution of Muhammad Abdul 

Hamid Khalil Salah for helping to provide 

funds to Hamas, the judge kept classified materials in a chambers safe to which only the 

judge and a cleared court reporter had the 

combination. For hearings concerning classified documents, the court reporter used a laptop provided by classified information security officers; the laptop was also stored in the 

safe.

To ensure against surveillance of proceedings by enemies, deputy marshals electronically monitored conferences and hearings in 

which classified information was discussed.

Giving State Secrets to Lobbyists

For a sting prosecution of lobbyists for sharing classified information, defense attorneys 

with security clearances reviewed classified 

evidence in a courthouse SCIF designed for 

use by criminal defense counsel. Defense witnesses with security clearances could also review classified information in the SCIF, but 

they were required to do so after usual operating hours.

Warrantless Wiretaps

Lawyers for an Islamic charity that the government shut down for allegedly funding terrorism filed an action in Portland, Oregon,

against a secret and allegedly illegal surveillance program. The lawyers submitted as evidence of the surveillance a top-secret document mistakenly disclosed to the charity during proceedings to freeze the charity’s assets. 

After the classified document had remained in 

a sealed envelope in the judge’s chambers for 

two weeks, a government security officer reviewed it in chambers and determined that it 

contained sensitive compartmented information, which meant it had to be stored in a 

SCIF. The courthouse did not have a SCIF. 

The FBI had a SCIF in Portland, but the FBI 

was a party to the case, so the plaintiffs did 

not want the document stored there. It was 

agreed that the document would be sent to the 

Seattle U.S. attorney’s SCIF. Shortly thereafter, the plaintiffs agreed to a method of storage at the FBI’s Portland SCIF: the document 

was stored in a locked bag to which only the 

judge and a classified information security officer would have a key. Al-Haramain Islamic 
16 National Security Case Management (2011)

Found. v. Bush, 451 F. Supp. 2d 1215, 1219 

(D. Or. 2006).

The government required the plaintiffs and 

their attorneys to surrender all copies of the 

document. The attorneys said that they complied with the government’s instructions, but 

the attorneys said that they could not comment 

on whether their clients had done so without 

violating the attorney–client privilege. The 

government made no effort to retrieve any 

copies of the document that may have been 

sent abroad, and it was reported that a reporter 

for the Washington Post had reviewed the 

document.

The district judge ruled that the plaintiffs 

could rely on their memories of the classified 

document to support their case, but the court 

of appeals determined that if they could not 

rely on the document itself then neither could 

they rely on their memories of it. AlHaramain Islamic Found. v. Bush, 507 F.3d 

1190, 1203 (9th Cir. 2007).

In a related action under the Freedom of 

Information Act (FOIA), the judge spent 

many hours over several days reviewing 

claimed exemptions in camera and ex parte. 

The government would not allow even law 

clerks with security clearances to assist the 

judge in this review. Doors were closed, windows were covered, and the documents were 

under the judge’s immediate control at all 

times. The documents were not stored in 

chambers; classified information security officers, whose offices and storage facilities, at 

the time, were a few blocks away from the 

federal courthouse in the District of Columbia, 

delivered and retrieved the documents on request.

Another judge presiding over another related FOIA action adopted a procedure for ensuring an accurate appellate record: he initialed and dated any classified document he 

reviewed that was not kept in the court’s file.

A judge hearing another related action prepared a sealed ex parte opinion responding to 

classified ex parte government submissions.

See Terkel v. AT&T, 441 F. Supp. 2d 899, 902 

(N.D. Ill. 2006). To write the classified opinion, the judge used a laptop computer provided by the classified information security

officer. The computer, and all drafts of the 

opinion, were stored in the U.S. attorney’s 

SCIF in the same building.

Atlanta

In a prosecution of two young men in Atlanta 

for preparing for violent jihad by, among other 

things, making casing videos of strategic 

landmarks, some classified information in the 

case was designated SCI. Judges and court 

staff could view this information at the U.S. 

attorney’s SCIF in the same building as the 

courthouse.

Some classified information in the case 

was not SCI, and judges could store this in 

chambers safes. A secure room was set aside 

for defense counsel to store and review classified information.

Sears Tower

Not all national security cases involve classified information. The prosecution of the “Liberty City Seven” for conspiracy to topple the 

Sears Tower and attack other buildings in various cities, based on information provided by 

paid informants, involved no classified information.

Fort Dix

In a prosecution of six men for conspiracy to 

attack Fort Dix, defense attorneys, who had 

security clearances, reviewed classified materials in a secure room in the courthouse; a 

separate safe was designated for each defendant. The attorneys did not have to see SCI, 

but the judge did. A classified information security officer brought the SCI to the judge’s 

chambers and took it away when the judge 

was finished examining it.

Torture Flights

In a tort action pertaining to extraordinary 

rendition, the government supported a successful motion to dismiss on state-secrets 

grounds with a classified ex parte declaration 

by the head of the CIA. A classified information security officer brought the declaration to 

the district judge’s chambers. The judge reviewed the declaration privately in his office, 

with the blinds drawn, while the security officer waited outside. When the judge was finished reviewing the declaration, the security 

officer took it back and informed the judge 

that it could be brought back to him for another review at any time.
National Security Case Management (2011) 17

Sharing Classified Information with Criminal Defendants

Courts have found it proper for the government to share classified information 

with defense attorneys who have security clearances even if the attorneys cannot 

share the information with their clients. Protective orders prohibit counsel from 

sharing the information with unauthorized persons. It has been held improper, 

however, to deny the defendant access to classified information entered into evidence at the defendant’s criminal trial. United States v. Abu Ali, 528 F.3d 210, 

248–55 (4th Cir. 2008).

CASE NOTES

First Prosecution for 1998 Embassy 

Bombings

In the original prosecution for the 1998 bombings of American embassies in Kenya and 

Tanzania, defense counsel could not discuss 

classified evidence with their clients. The 

court of appeals affirmed the district judge’s 

determination that this did not violate the 

Constitution. In re Terrorist Bombings of U.S. 

Embassies in East Africa, 552 F.3d 93, 116–

23 (2d Cir. 2008).

Twentieth Hijacker

Attorneys representing Zacarias Moussaoui, in 

his trial for terrorism conspiracy, had security 

clearances, but they could not share classified 

information with the defendant. United States 

v. Moussaoui, 591 F.3d 263, 607 (4th Cir. 

2010). Moussaoui pleaded guilty against his 

attorneys’ advice and sought to rescind his 

guilty plea after the jury spared his life. Id. at 

272, 278; United States v. Moussaoui, 483 F.3d 

220, 223–24 n.1 (4th Cir. 2007). On appeal, his 

attorneys argued that their client would not 

have pleaded guilty if he had access to some of 

the classified information concerning the case 

that the attorneys had access to. Moussaoui, 

591 F.3d at 272. The court of appeals affirmed 

the district court’s denial of this request: 

“Moussaoui was well aware that there was 

classified, exculpatory evidence yet to be produced to him personally and he knew why the 

material was exculpatory. Rather than wait for 

the process to be completed, Moussaoui made 

the strategic decision to plead guilty immediately.” Id. at 287.

Guantánamo Bay

Habeas attorneys could not share classified 

information with Guantánamo Bay detainees, 

except for the detainees’ own statements made 

to government agents.

Dirty Bomber

More than two years after Jose Padilla—who 

originally was detained as a dirty bomber but

was ultimately tried with two other men for 

terrorism conspiracy—was added to the indictment, the district judge granted him access 

to classified evidence created during his military detention. Although it is common to grant 

defense attorneys access to classified evidence 

relevant to a prosecution, it is very unusual for 

courts to grant such access to terrorism defendants.

A Plot to Kill President Bush

In the prosecution of Ahmed Omar Abu Ali for 

terrorism conspiracy and conspiracy to kill the 

President, some of the evidence against the defendant was classified, and the defendant was 

not allowed to see it. A small amount of classified information was presented to the jury at 

trial but not shown to the defendant; the court 

of appeals determined that this was error. United States v. Abu Ali, 528 F.3d 210, 248–55 (4th 

Cir. 2008). The court determined, however, that 

the error was harmless in this case.

Prosecution of a Charity

For the prosecution of the Holy Land Foundation and its principals for providing funds to 

Hamas, defense attorneys had security clearances, but they were not allowed to reveal 

classified information to their clients.

Fort Dix

In a prosecution for conspiracy to attack Fort 

Dix, defense attorneys had security clearances, and they had to examine classified materials, but they were not permitted to share 

classified information with their clients.
18 National Security Case Management (2011)

Discovery

In criminal cases involving classified information, the court must often not only 

decide what information in the government’s possession is discoverable, but, pursuant to CIPA, 18 U.S.C. app. 3 § 4 (2006), must decide whether the government 

can substitute summaries or admissions for the original classified information.

These cases frequently present “a conflict raising vitally important interests to 

both parties—the government’s interest in protecting national security through the 

non-disclosure of classified information, on the one hand, and the defendant’s 

need to acquire this information to present an adequate defense, on the other.” 

Reggie B. Walton, Prosecuting International Terrorism Cases in Article III 

Courts, 39 Geo. L.J. Ann. Rev. Crim. Proc. iii, iii (2010).

Security precautions are required for the court’s review of classified information for discovery obligations. Classified information must not be reviewed in the 

presence of anyone without the appropriate security clearance. A law clerk may 

assist the judge only if the law clerk is granted a security clearance to do so. If the 

matter is delegated to a magistrate judge, the magistrate judge will have to be 

cleared first. Classified material must be properly stored when it is not being reviewed.

Sometimes, the government can declassify information to facilitate a prosecution. This typically requires negotiation between the prosecutors and the intelligence community. Because of the secrecy associated with classified information, 

the prosecutors may not be immediately aware of all discoverable information in 

the government’s possession.

Determining what information in the government’s possession might be helpful to the defense is often even more difficult in a case involving classified information than it is in other criminal cases. Some judges have ex parte conversations 

with the defense to learn defense strategies and ex parte conversations with the 

prosecution to learn what information the government has in order to better understand what classified information in the government’s possession might be 

helpful to the defense.

CASE NOTES

First Prosecution for 1998 Embassy 

Bombings

In the original prosecution for the 1998 bombings of American embassies in Kenya and 

Tanzania, the district judge resolved issues 

concerning discovery of classified information 

by conducting ex parte discussions with defense counsel concerning defense strategy and 

ex parte discussions with prosecutors concerning potentially relevant classified information. 

Sometimes, the judge was able to mediate a 

substitution for classified information. In re

Terrorist Bombings of U.S. Embassies in East 

Africa, 552 F.3d 93, 118–19 (2d Cir. 2008).

Sometimes, the judge was able to determine 

that classified information was not as relevant 

as defense counsel thought it might be.

Prosecution of a Guantánamo Bay 

Detainee for 1998 Embassy Bombings

In preparation for the 2010 trial of Ahmed 

Khalfan Ghailani, a onetime fugitive, the district judge reviewed classified CIA reports 

containing statements made by the defendant 

during custodial interrogations. The judge determined that defense counsel were entitled to 

additional information about the time and circumstances of the defendants’ statements.
National Security Case Management (2011) 19

Millennium Bomber

In the prosecution of Ahmed Ressam, who 

planned to bomb the Los Angeles International Airport at the turn of the millennium, the 

district judge reviewed classified material to 

determine whether it was discoverable, and he 

decided that it was not.

American Taliban

In the prosecution of John Walker Lindh, who 

became known as the American Taliban, the 

district judge had to review a substantial 

amount of classified material to determine 

what evidence the government had to produce 

to the defense.

Paintball

In the prosecution of Ali al-Timimi, the spiritual leader of northern Virginia men who 

played paintball in preparation for violent jihad, it was difficult for the court to determine 

whether the defendant had been provided with 

all discoverable information, because prosecutors did not necessarily have access to classified information held by other parts of the 

government.

Lodi

In the Sacramento prosecution of Hamid 

Hayat for attending a terrorist training camp,

and of his father Umer for lying about it, the 

government filed a notice that it had potentially discoverable classified evidence. After several sealed ex parte in camera reviews and 

hearings, the judge determined that classified 

information foundational to trial evidence was 

discoverable. Defense counsel elected to stipulate to the admissibility of the trial evidence 

rather than undergo the burden and delay of 

security clearance procedures.

FISA Evidence

The Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. §§ 1801–1885c

(2006), requires the government to obtain a warrant for surveillance of international communications that include a person in the United States. See 2 James G. 

Carr & Patricia L. Bellia, The Law of Electronic Surveillance 429–86 (2011); 

Reggie B. Walton, Prosecuting International Terrorism Cases in Article III 

Courts, 39 Geo. L.J. Ann. Rev. Crim. Proc. iii, xvi–xxiv (2010).

FISA warrants are issued by a special FISA court, whose proceedings are 

conducted ex parte and in secret. 50 U.S.C. § 1803 (2006). The FISA court can 

also issue warrants for physical searches within the United States for the purpose 

of obtaining foreign intelligence. Id. § 1822.

If the prosecution believes that it will rely on evidence obtained because of a 

FISA warrant, then the court may be called upon to review the warrant application 

to determine whether the evidence was properly obtained pursuant to a properly 

issued warrant. The defense is not typically granted access to materials in the warrant application. On the one hand, the court must review the collection of FISA 

evidence without the benefit of adverse counsel; on the other hand, the review has 

the benefit of previous scrutiny by another judge.

CASE NOTES

Dirty Bomber

In the trial of Jose Padilla—who was originally detained as a dirty bomber but ultimately 

tried with two other men for terrorism conspiracy—some of the evidence against each of 

the defendants resulted from warrants issued 

by the FISA court. Challenges to this evidence 

necessitated the court’s review of the FISA 

warrant applications. The district judge referred the matter to a magistrate judge, who 

reviewed in camera all relevant FISA applications. After her own careful review, the district judge affirmed the magistrate judge’s 

findings of proper probable cause for all applications.
20 National Security Case Management (2011)

Minneapolis

In the prosecution of Mohamed Abdullah 

Warsame, who was indicted for attending AlQaeda training camps, some of the evidence 

against the defendant was obtained as a result 

of FISA warrants. United States v. Warsame, 

547 F. Supp. 2d 982, 984–86 (D. Minn. 2008).

The FISA court had issued warrants for surveillance of persons with whom Warsame 

communicated, and later the court approved a 

tap of Warsame’s telephone and a physical 

search of his apartment. The district judge 

presiding over the prosecution reviewed all 

warrant applications and supporting materials 

in camera, making de novo judgments as to 

probable cause, and determined that FISA 

procedures were properly followed.

Prosecution of a Charity

The prosecution of the Holy Land Foundation 

and its principals for providing funds to Hamas was based in part on wiretaps authorized 

by the FISA court. In discovery, the government produced FISA evidence to defense 

counsel, who had security clearances but who 

could not disclose classified information to 

their clients. Much of this evidence was in the 

form of declassified “tech-cuts,” which are 

English-language summaries of recorded conversations. Defense counsel discovered some 

errors in the summaries, and the judge declared the errors to be “disturbing,” but the 

defendants did not present evidence of sufficient inaccuracies to require a remedy.

In error, the government also disclosed to 

defense counsel the contents of some FISA 

warrant applications. This is not the usual procedure for affording a defendant an opportunity to challenge evidence based on FISA warrants. The usual procedure is for the government to present the FISA warrant records to 

the district judge ex parte. In fact, the judge 

spent several days conducting an in camera 

review of FISA warrants resulting in evidence 

the government sought to use in the case.

The judge was at a conference in another 

city when he received, in the lobby of his hotel, an emergency motion from the FBI stating 

that FISA applications had been inadvertently 

disclosed to defense attorneys. The FBI asked 

the judge for relief because the attorneys refused to return them. The judge issued an order preserving the status quo and then ultimately granted the FBI substantially the relief 

requested.

The government declassified some of the 

defendants’ recorded conversations, and that 

evidence could be shared with the defendants. 

The court approved an offer by the government to seek declassification of additional 

conversations specifically identified by the 

defendants. Defense counsel argued that the 

offer was unconstitutional because it required 

them to reveal too much about their own conversations with their clients and their trial 

strategy. The judge overruled this objection.

It was understood that any FISA evidence 

the government presented at trial would have 

to be declassified and provided to the individual defendants in advance of trial.

Toledo

In a prosecution of Americans for conspiracy 

to fight against U.S. forces in Iraq, the district 

judge determined that it was not necessary to 

disclose to defense counsel FISA application 

materials; the court would determine the validity of the FISA evidence ex parte and in 

camera. United States v. Amawi, 531 F. Supp. 

2d 832 (N.D. Ohio 2008).

Atlanta

In a prosecution of two young men in Atlanta

for preparing for violent jihad by, among other 

things, making casing videos of strategic 

landmarks, some evidence against the defendants was obtained pursuant to FISA warrants. 

The magistrate judge reviewed all relevant 

FISA applications, finding no errors in FISA 

procedures and finding that none of the FISA 

materials were discoverable. The judge observed that defense counsel is in a difficult 

position when arguing for suppression of 

FISA evidence, because they do not have 

access to the FISA records, but a FISA suppression motion is easier for the judge than 

many other suppression motions because collection of the FISA evidence has been subjected to prior judicial review.

Fort Dix

In a prosecution for conspiracy to attack Fort 

Dix, much of the evidence against the defendants had been obtained with FISA warrants. 

The judge reviewed FISA files to determine 

what was discoverable and to determine that 

the FISA surveillance was properly supported. 
National Security Case Management (2011) 21

Much of the FISA evidence was declassified, 

but the affidavits supporting the FISA warrants generally were not. The judge observed 

that FISA discoverability decisions are somewhat hampered by the judge’s not knowing, 

particularly early in the case, what the defenses might be.

Civil Cases

Civil actions involving classified information include actions arising from contracts, torts, habeas corpus, and the Freedom of Information Act (FOIA). Typically, the government either is a defendant or it has interests aligned with a defendant. That means that the incentive structure for sharing classified information 

with the government’s opposing party is quite different. In a criminal case, the 

government has an incentive to share classified information, such as by declassifying it or granting defense attorneys security clearances to see it. In a civil case, 

the government’s goal is often to have the case dismissed. An interesting exception arose in habeas actions pertaining to detention at Guantánamo Bay, in which 

the district court imposed on the government the burden of proof.

CASE NOTES

Burma

In an action by the Drug Enforcement Administration’s attaché in Burma claiming illegal 

surveillance, the district court determined that 

CIPA, which technically applies only to criminal cases, would apply to classified evidence 

in this civil case.

The district judge also overruled a government determination that attorneys in the 

case did not have a need to know classified 

information. The Litigation Security Group

determined that the attorneys were eligible for 

security clearances, but the government declined to acknowledge their need to know 

classified information that was actually already known to them.

Guantánamo Bay

Habeas actions by Guantánamo Bay detainees 

are technically civil actions, but the district 

court for the District of Columbia determined 

that the security principles of CIPA apply to 

these cases.

Mistaken Rendition

A court of appeals affirmed a district court’s 

dismissal on state-secrets grounds of a tort action arising from extraordinary rendition involving mistaken identity. El-Masri v. United 

States, 479 F.3d 296 (4th Cir. 2007).

Detainee Documents

A district court reviewed government information about terrorism suspects detained at 

extraterritorial military facilities since September 11, 2001, to determine what must be 

produced pursuant to FOIA requests. E.g., 

ACLU v. Dep’t of Defense, 723 F. Supp. 2d 

621 (S.D.N.Y. 2010).

Warrantless Wiretaps

In an action challenging a secret and allegedly 

illegal surveillance program—an action arising from evidence of surveillance in a topsecret document mistakenly disclosed to an 

Islamic charity during proceedings to freeze 

the charity’s assets for allegedly funding terrorism—the district judge was able to resolve 

the case in the plaintiffs’ favor without use of 

the classified document. The government had 

publicly acknowledged surveillance of the 

charity and presented to the court no warrant 

for doing so. In re NSA Telecomm. Records 

Litig., 700 F. Supp. 2d 1182 (N.D. Cal. 2010).

In a related FOIA action, the classified status of opinions concerning the surveillance 

program prepared by the Justice Department’s 

Office of Legal Counsel (OLC) changed during the course of litigation, so the government 

agreed to the plaintiffs’ demand that the government review again its position on whether 

the opinions or parts of them could be produced.
22 National Security Case Management (2011)

Torture Flights

A court of appeals affirmed a district court’s 

dismissal on state-secrets grounds of a tort action pertaining to extraordinary rendition. Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 

1070 (9th Cir. 2010).

Other Government Secrets

Not all sensitive government information is classified. Exec. Order No. 13,556, 75 

Fed. Reg. 68,675 (Nov. 9, 2010) (concerning controlled unclassified information).

The government will sometimes ask the court to issue protective orders and seal 

part of the court record to protect sensitive information, and the court may look to 

the law of sealing for guidance. See Robert Timothy Reagan, Sealing Court 

Records and Proceedings: A Pocket Guide (Federal Judicial Center 2010).

CASE NOTES

American Taliban

In the prosecution of John Walker Lindh, who 

became known as the American Taliban, the 

government determined that it had to disclose 

to the defense information that was not classified but that nevertheless required sensitive 

handling for the benefit of national security: 

“reports of interviews of detainees captured in 

Afghanistan and elsewhere who may have 

knowledge of al Qaeda or who may have been 

members of that organization and who are 

housed primarily at Guantánamo Bay, Cuba.” 

United States v. Lindh, 198 F. Supp. 2d 739, 

741 (E.D. Va. 2002).

The district judge approved redactions to 

the discovery, such as agent and case identifiers. The judge also issued a protective order 

requiring that defense personnel given access 

to the discovery preserve its secrecy. The defense agreed to a limited background check, 

coordinated by the classified information security officer, for personnel with access to the 

protected discovery.

September 11 Damages

The consolidated civil actions against airlines 

and security companies for damages resulting 

from the September 11, 2001, terrorist attacks 

required discovery concerning security procedures. The government decided that the 

Transportation Security Administration (TSA) 

should screen discovery for “sensitive security 

information” (SSI), which is secret information related to transportation security. In re

Sept. 11 Litig., 600 F. Supp. 2d 549, 552 

(S.D.N.Y. 2009); 49 C.F.R. § 1520.5(a). This 

slowed substantially the progress of the litigation. In re Sept. 11 Litig., 567 F. Supp. 2d 611, 

616 (S.D.N.Y. 2008); In re Sept. 11 Litig., 621 

F. Supp. 2d 131, 142 (S.D.N.Y. 2009).

It took the TSA two years to screen an early set of discovery. In re Sept. 11 Litig., 236 

F.R.D. 164, 167 (S.D.N.Y. 2006). Then the 

TSA instructed the defendants to refuse to answer any deposition questions that called for 

SSI, and the TSA refused to attend the depositions. The district court concluded that the 

TSA’s reasons for intervening in the case required the agency’s attendance at the depositions.

The district judge suggested that representative plaintiff attorneys attend the depositions, 

but many plaintiffs’ attorneys were unwilling 

to be represented by other parties’ attorneys. 

The government, however, wanted to limit the 

number of people given access to sensitive 

discovery. Depositions could proceed once the 

government relaxed its insistence that deposition participation be limited.

Guantánamo Bay

In habeas actions on behalf of Guantánamo 

Bay detainees, the government sought to keep 

under seal substantial portions of the case files 

to protect information that was not classified 

but was nonetheless considered sensitive. In 

addition, the detainees’ attorneys sometimes 

sought to protect personal information about 

their clients that the clients considered sensitive. The court balanced requests to keep parts 

of the court records sealed against the public’s 

First Amendment and common-law rights.
National Security Case Management (2011) 23

Giving State Secrets to Lobbyists

In a sting prosecution of lobbyists for sharing 

classified information, the judge ruled that the 

indictment required proof that the information 

passed by the defendants qualified as national 

defense information (NDI). United States v. 

Rosen, 599 F. Supp. 2d 690, 694–95 (E.D. Va. 

2009); United States v. Rosen, 471 F. Supp. 

2d 651, 652 (E.D. Va. 2007); see 18 U.S.C. 

§ 793 (2006). “To qualify as NDI, information 

must be closely held by the government and 

potentially damaging to national security if 

disclosed.” United States v. Rosen, 487 F. 

Supp. 2d 703, 705 n.1 (E.D. Va. 2007). “It is 

important to recognize that NDI and classified 

material may not be coextensive sets.” Id. “In 

short, the government designates what information is labeled and treated as classified, 

while a court or jury determines what information qualifies as NDI . . . .” Rosen, 599 F. 

Supp. 2d 690.

Filings and Proceedings

If a case involves classified information, then part of the case record may be classified. Security precautions greater than those ordinarily used for sealing part of a 

record typically are required. Classified information security officers provided by 

the Justice Department’s Litigation Security Group must control classified portions of a case record. They will provide case-specific guidance; the following is 

only a cursory introduction.

If a party or the court enters into the record a document containing classified 

information, or a document that might contain classified information, then the 

document is filed with the classified information security officer instead of with 

the clerk’s office, and the document is deemed filed with the clerk. It is good 

practice to simultaneously file a public document that gives public notice of the 

classified filing. The filing of a “half sheet” works well: the part of the first page 

containing the caption of the case and an unclassified title of the document is 

placed in the public file. The public record must not include classified information.

Often, unclassified parts of a document containing classified information can 

be in the public file: after a classification review, the document is redacted to remove the classified information. After a classified document is filed with the classified information security officer, the security officer can refer the document to 

the appropriate part of the intelligence community for a classification review. If 

the classification review is conducted on an opinion or an order before the document is served on the parties, then the review is performed by persons walled off 

from persons working with the government’s attorneys in the case. After the classification review, the security officer can place into the public file a redacted version of the document.

The parties, or at least their attorneys, may be cleared to receive unredacted 

copies of the classified document.

Sometimes, judges simultaneously file a public version of an opinion or order 

and a more complete version containing classified information with the classified 

information security officer. It is important to remember how difficult it can be to 

anticipate what must be redacted from a document in a case concerning classified 

information. The public docket sheet should reflect both filings. It is important for 

the court to ensure that this method does not keep from the public record informa-
24 National Security Case Management (2011)

tion that is neither classified nor properly sealed on specific findings of a need for 

sealing.

If a public proceeding might concern classified information, the classified information security officer can attend the proceeding to monitor it and interrupt if 

anyone appears to be about to say something classified. Often the security officer 

will be accompanied by someone from the intelligence community. It is important 

for all participants to know what they can and cannot say in public, so in practice 

the security officer seldom has to interrupt.

If classified information must be discussed at a proceeding, then all or part of 

the proceeding may be closed. Proceedings involving classified information are 

often bifurcated into a closed proceeding, at which classified information can be 

discussed, and an open proceeding. At the closed portion of the proceeding, only 

persons cleared to hear the classified information to be discussed can be present. 

The classified information security officer will advise the court on necessary security precautions and coordinate with the U.S. Marshals Service for physical security. For transcripts of proceedings in which classified information is discussed, 

the court reporter must have a suitable security clearance. A possibly redacted 

transcript of closed proceedings can often be released publicly after a classification review.

Documents and transcripts containing classified information must be prepared 

on approved computer equipment. The classified information security officer will 

provide an approved laptop computer, which cannot have any network or Internet 

connection and which must be stored in an approved safe or SCIF.

CASE NOTES

Burma

In an action by the Drug Enforcement Administration’s attaché in Burma claiming illegal 

surveillance, the district court initially sealed 

the whole record. Later, after a different judge 

assumed responsibility for the case, the court 

unsealed the case and ordered a classification 

review of all previous filings. Documents 

without classified information were put on the 

public record, as were redacted versions of 

documents that contained classified information.

First Prosecution for 1998 Embassy 

Bombings

The court of appeals approved a district court 

procedure to resolve a suppression motion in 

the original prosecution for the 1998 bombings of American embassies in Kenya and 

Tanzania: the district judge determined the 

reasonableness of searches in Africa by ex 

parte examination of classified evidence instead of hearing evidence in an adversary proceeding. In re Terrorist Bombings of U.S. 

Embassies in East Africa, 552 F.3d 157, 159, 

165–67, 177 (2d Cir. 2008).

Prosecution of a Guantánamo Bay 

Detainee for 1998 Embassy Bombings

Concerning the 2010 trial of onetime fugitive 

Ahmed Khalfan Ghailani for the 1998 bombings of American embassies in Kenya and 

Tanzania, the judge filed seven opinions containing classified information. Each time, the 

opinion was filed with the classified information security officer and a cover half-sheet 

was filed on the public record containing only 

the case caption and the document title. For 

most opinions, from one day to two weeks later, a redacted copy of the opinion was filed on 

the public record. For one opinion concerning 

discovery, the redacted opinion was filed on 

the public record approximately two months 

after the original classified opinion was filed.

Twentieth Hijacker

In the prosecution of Zacarias Moussaoui for 

terrorism conspiracy, filings that might include classified information were not filed di-
National Security Case Management (2011) 25

rectly with the clerk’s office. Defense attorneys, who had security clearances, filed their 

papers with the classified information security

officer, who, by order of the court, arranged 

for screening by the intelligence community 

within 48 hours. The government was responsible for classification review of its filings. 

After classification screening, redacted papers 

were filed with the clerk’s office for inclusion 

in the public record.

Guantánamo Bay

If there was a chance that a filing by a habeas 

attorney representing a Guantánamo Bay detainee would contain classified information, 

which included most filings involving matters 

more substantive than the dates of proceedings, then the filing would be presented to 

classified information security officers, at 

which time it was deemed filed with the court.

Classified materials used by habeas attorneys in court had to be transported to the courtroom by cleared couriers, and the proceedings 

had to be closed.

Opinions in the Guantánamo Bay habeas 

cases almost always required a classification 

review before they could be released publicly. 

Either the review was performed by persons 

walled off from representatives of the government in the actions before the opinion was 

issued simultaneously to the parties in complete form and to the public in redacted form, 

or the classification review was performed after the opinion was released to the parties and 

a redacted version was placed on the public 

record later.

Dirty Bomber

Jose Padilla, who was originally detained on a 

material witness warrant as part of the grand 

jury investigation of the September 11, 2001, 

attacks, was transferred to military detention 

and designated an enemy combatant for an 

alleged plan to detonate a dirty bomb. Padilla

ex rel. Newman v. Bush, 233 F. Supp. 2d 564, 

571 (S.D.N.Y. 2002). In response to Padilla’s 

habeas corpus petition, the government submitted both a public redacted declaration describing evidence supporting the designation 

of Padilla as an enemy combatant and an ex 

parte, in camera classified unredacted declaration. The only information in the unredacted 

declaration not in the public declaration was 

the identity of sources and some circumstantial evidence corroborating facts in the redacted declaration. The judge ruled that it was 

proper to deny Padilla access to the classified 

declaration unless Padilla rebutted facts presented in the redacted declaration, in which 

case the judge would give the government a 

choice between sharing the unredacted declaration with Padilla or withdrawing it.

Paintball

Ali al-Timimi, the spiritual leader of northern 

Virginia men who played paintball in preparation for violent jihad, was convicted of soliciting others to wage war against the United 

States and providing services to the Taliban. 

The court of appeals remanded the case for an 

investigation of possibly discoverable surveillance. The trial judge held several postremand proceedings, which were closed because matters discussed touched on classified 

information. After the proceedings, the transcripts were submitted to the classified information security officer for a classification review. After the classification review, the transcripts became public documents, either in 

whole or in redacted form.

During some of the proceedings, the defendant was present; he was not authorized to 

hear classified information, so sometimes participants had to speak cryptically.

Detainee Documents

In an FOIA case concerning extraterritorial 

detentions of terrorism suspects, the government would not permit the law clerks to see 

some of the classified information presented 

to the judge even though the law clerks had 

security clearances. The judge, nevertheless, 

was able to review government documents

with the law clerks present to make rulings on 

what had to be produced to the plaintiffs. See, 

e.g., ACLU v. Dep’t of Defense, 723 F. Supp. 

2d 621, 624 (S.D.N.Y. 2010). The judge examined the documents without showing them 

to anyone else present, and a court reporter 

without a security clearance transcribed the 

proceeding. The judge determined which documents had to be produced, either redacted or 

unredacted, and did not retain the documents.

Chicago

For the prosecution of Muhammad Abdul 

Hamid Khalil Salah for helping to provide 

funds to Hamas—a prosecution that involved 
26 National Security Case Management (2011)

a substantial amount of classified evidence 

relating to Salah’s imprisonment in Israel—

the judge’s opinion denying Salah’s motion to 

suppress a confession in Israel was published 

in the Federal Supplement with 19 redactions 

because of references to classified information. United States v. Marzook, 435 F. Supp. 

2d 708 (N.D. Ill. 2006). The parties received 

unredacted copies, and an unredacted original 

is stored in the judge’s chambers safe.

A motion by the government for secrecy 

procedures protecting testimony from Israeli 

agents was supported by a classified affidavit 

from the FBI’s assistant director for counterintelligence—the affidavit was stored in the 

judge’s safe rather than in the clerk’s office.

The judge set time limits of seven business 

days for the government to decide what portions of other documents and transcripts related to classified information could be released to the public. United States v. Abu 

Marzook, 412 F. Supp. 2d 913, 928 (N.D. Ill. 

2006).

Giving State Secrets to Lobbyists

The judge presiding over a sting prosecution 

of lobbyists for sharing classified information 

held several closed pretrial hearings, each of 

which required a court reporter with a security 

clearance because the hearings concerned 

classified information. The judge denied, 

however, a government motion to try the defendants in closed proceedings. United States 

v. Rosen, 487 F. Supp. 2d 703 (E.D. Va. 

2007).

Some of the orders the judge issued in the 

case are sealed because they contain classified 

information. On some occasions, the judge 

issued a public order stating as much as he 

could on the public record and a sealed order 

with additional classified details. United 

States v. Rosen, 520 F. Supp. 2d 802, 814 

(E.D. Va. 2007); United States v. Rosen, 520 

F. Supp. 2d 786, 789, 802 (E.D. Va. 2007).

On one occasion, a classified order could subsequently be made public.

Lodi

In the Sacramento prosecution of Hamid 

Hayat for attending a terrorist training camp,

and of his father Umer for lying about it, the 

government filed a notice that it had potentially discoverable classified evidence. Six sealed 

ex parte in camera submissions and two sealed 

ex parte in camera hearings followed. The 

judge filed rulings and orders under seal if 

they discussed potentially classified information.

Warrantless Wiretaps

In an action challenging a secret and allegedly 

illegal surveillance program—the action arising from evidence of surveillance in a topsecret document mistakenly disclosed to an 

Islamic charity during proceedings to freeze 

the charity’s assets for allegedly funding terrorism—the plaintiffs unsuccessfully opposed 

a motion by the government to deny them further access to the document. The plaintiffs 

supported their opposition with a declaration 

of what they remembered about the document. 

The plaintiffs filed the declaration under seal, 

but this afforded insufficient protection for 

classified information. The clerk’s office followed its usual procedures for sealed documents: it opened the sealed envelope, made a 

copy for the judge, and then resealed it. The 

government determined that the declaration 

had the same level of classification as the 

original document, so it had to be stored with 

the original document in a locked bag in a 

SCIF. All classified submissions by the government in this case, until the case was transferred as part of a multidistrict consolidation, 

were stored in the locked bag when the judge 

was not examining them.

It was difficult for the plaintiffs in this case 

to determine whom on the government side 

they could serve with any papers describing 

the classified evidentiary document. The government said that the identities of persons with 

clearance to see such documents was a state 

secret. The solution to this problem was to 

have the plaintiffs send classified information 

to the government on a secure fax line, leaving it up to the government to ensure that only 

authorized persons received the classified information.

In this and related actions before various 

judges challenging the surveillance program, 

the government frequently presented to the 

court classified briefs and declarations designated for judges’ eyes only. Sometimes the 

judge reviewed the document when it was 

presented. Sometimes the judge delayed reviewing the document until after a public 

hearing on the matter so there would be no 

danger of the judge referring to classified in-
National Security Case Management (2011) 27

formation at the hearing. Another approach 

was to carefully prepare questions for an oral 

hearing in advance so as to make sure classified information would not be mentioned. 

Sometimes the judge deferred decision on 

whether to examine the classified arguments 

until there was a showing of need for an in 

camera, ex parte presentation.

A judge in Chicago decided not to rely on 

classified submissions in ruling on a motion, 

but he decided to respond to the submissions 

in a sealed opinion available only to the government and to judges subsequently reviewing 

the case. See Terkel v. AT&T, 441 F. Supp. 2d 

899, 902 (N.D. Ill. 2006).

Atlanta

In a prosecution of two young men in Atlanta 

for preparing for violent jihad by, among other 

things, making casing videos of strategic 

landmarks, filings based on classified information received classification reviews for 

possible redaction. The court denied as overly 

broad and excessively burdensome a government request that all filings based on discovery, whether classified or not, be filed under 

seal.

Fort Dix

In a prosecution for conspiracy to attack Fort 

Dix, the judge had to rule on the validity of 

FISA warrants. The judge’s opinion on the 

matter is classified. A redacted opinion was 

filed publicly after review by intelligence 

agencies, over 16 months after the original 

was issued. Redactions appear to conceal 

which agents of Al-Qaeda were the targets of 

FISA surveillance resulting in evidence 

against the defendants.

State-Secrets Privilege

The state-secrets privilege is most likely to arise in a civil action against the government or against a party with whom the government shares interests.

The government cannot be required to divulge state secrets. See Robert Timothy Reagan, Keeping Government Secrets: A Pocket Guide for Judges on the 

State-Secrets Privilege, the Classified Information Procedures Act, and Court Security Officers 3–7 (Federal Judicial Center 2007). Designation of information as 

a state secret requires high-level certification. United States v. Reynolds, 345 U.S. 

1, 7–8 (1952). Although the executive branch has authority over what constitutes 

a state secret, the judicial branch has authority over its implications in specific 

cases.

CASE NOTES

Burma

In an action by the Drug Enforcement Administration’s attaché in Burma claiming illegal 

surveillance, the district court reasoned that 

because the privilege is a judicial doctrine, the 

court retains the authority to order secret information disclosed in litigation. Horn v. 

Huddle, 647 F. Supp. 2d 55, 62–63 (D.D.C. 

2009), vacated on other grounds, 699 F. Supp.

236 (D.D.C. 2010).

Mistaken Rendition

A court of appeals affirmed a district court’s 

dismissal on state-secrets grounds of a tort action alleging that because of mistaken identity 

the government abducted a German citizen on 

vacation in Macedonia and imprisoned him in 

secret for five months. El-Masri v. United 

States, 479 F.3d 296 (4th Cir. 2007).

Warrantless Wiretaps

In an action challenging a secret and allegedly 

illegal surveillance program—the action arising from evidence of surveillance in a topsecret document mistakenly disclosed to an 

Islamic charity during proceedings to freeze 

the charity’s assets for allegedly funding terrorism—the court of appeals determined that 

the document and its contents were state secrets. Al-Haramain Islamic Found. v. Bush, 

507 F.3d 1190, 1204 (9th Cir. 2007). The 

three judges on the appellate panel reviewed 

in camera the document and classified argu-
28 National Security Case Management (2011)

ments supporting its protection under the 

state-secrets privilege:

We take very seriously our obligation to review the documents with a very careful, indeed a skeptical, eye, and not to accept at 

face value the government’s claim or justification of privilege. Simply saying “military 

secret,” “national security” or “terrorist 

threat” or invoking an ethereal fear that disclosure will threaten our nation is insufficient to support the privilege. Sufficient detail must be—and has been—provided for 

us to make a meaningful examination.

Id. at 1203.

Torture Flights

A court of appeals affirmed a district court’s 

dismissal on state-secrets grounds of a tort action pertaining to extraordinary rendition, 

finding that the case could not be litigated 

without endangering state secrets. Mohamed 

v. Jeppesen Dataplan, Inc., 614 F.3d 1070 

(9th Cir. 2010).

Silent Witness Rule

It is not yet well established, but some courts have employed what is often called 

a silent witness rule to permit public discussion of classified information. See

United States v. Zettl, 835 F.2d 1059, 1063 (4th Cir. 1987); United States v. Rosen, 520 F. Supp. 2d 786 (E.D. Va. 2007). The classified information, such as the 

identity of a person or a country, is referred to in code (such as “person 1” or 

“country A”). The judge, the parties, and the jury know the code but the public 

does not.

CASE NOTES

September 11 Damages

One action against airlines and security companies for damages resulting from the September 11, 2001, terrorist attacks came close

to going to trial, but it ultimately settled. The 

court prepared for evidence based on “sensitive security information” (SSI), which is protected, but not classified, information related 

to transportation security. The court issued a 

protective order calling for use of the silent 

witness rule at trial.

Giving State Secrets to Lobbyists

For a sting prosecution of lobbyists for sharing classified information, which the government dismissed because of other pretrial rulings, the judge determined that it might be appropriate to introduce classified evidence at 

trial using the “silent witness rule.” United 

States v. Rosen, 520 F. Supp. 2d 786 (E.D. 

Va. 2007). The silent witness rule permits 

some evidence to be presented to the judge, 

the jury, and the parties, but not to the public. 

It is a partial closing of the trial. The judge 

determined that the silent witness rule would 

be appropriate

only when the government established (i) an 

overriding reason for closing the trial, (ii) that 

the closure is no broader than necessary to protect that interest, (iii) that no reasonable alternatives exist to closure, and (iv) that the use of 

the [silent witness rule] provides defendants 

with substantially the same ability to make 

their defense as full public disclosure of the 

evidence, presented without the use of codes.

Id. at 799.

Special Judicial Resources

As with other cases, in national security cases the court may want to consider both 

usual and creative ways to manage a case in the interests of justice. For Guantánamo Bay habeas cases, the court used senior judges and magistrate judges for 

matters common to cases before assigned judges. For a civil challenge to a government program, one judge considered using a special master to advise the court 

on national security issues.
National Security Case Management (2011) 29

CASE NOTES

Guantánamo Bay

The district court for the District of Columbia 

presided over several hundred habeas corpus 

petitions filed on behalf of Guantánamo Bay 

detainees. The court referred preliminary matters in the first few cases to a retired senior 

judge. Another senior judge handled preliminary matters later. A magistrate judge presided over matters concerning habeas attorneys’ contacts with their clients.

Warrantless Wiretaps

In an action challenging a secret and allegedly 

illegal surveillance program, the judge considered naming a court-appointed national security expert “to assist the court in determining 

whether disclosing particular evidence would 

create a ‘reasonable danger’ of harming national security.” Hepting v. AT&T Corp., 439 

F. Supp. 2d 974, 1010–11 (N.D. Cal. 2006). 

The government objected to the suggestion, 

and the judge never decided that such an appointment was necessary.

Courts of Appeals

Appeals are typically heard by three judges with chambers in three different locations, all of which may be different from the place of hearing, and this poses a logistical challenge for the handling of classified information in the appeal.

Classified information may be present in the lower court record, the briefing, 

and oral argument. If part of the briefing is classified, it is proper for redacted 

briefs to be filed publicly and unredacted briefs to be filed with the classified information security officer. Some clerk’s offices are equipped with storage facilities for classified information, depending on the level of classification. Frequently, classified information security officers or cleared court personnel transport 

classified briefing between the location of storage and the judge. Sometimes, 

judges review classified briefing or classified portions of the record while they are 

at the court to hear other appeals.

Some appellate law clerks obtain security clearances to assist judges with cases concerning classified information. Nevertheless, sometimes the case file includes classified information designated for judges’ eyes only.

The membership of an appellate panel and the identity of judges writing opinions are determined well in advance of that information’s becoming public, so 

courts work with the classified information security officers to protect the confidentiality of the judges the security officers are visiting. It is important for judges 

to be confident that case assignments will not be leaked to government attorneys, 

for example, in advance of the information’s becoming public.

If it is likely that classified information will be discussed at oral argument, 

part of the argument will be closed. A classified information security officer will 

attend the open portion to interrupt if it appears that classified information will be 

disclosed. If the argument is recorded for public broadcast, arrangements are typically made for a delay to ensure that classified information is not inadvertently released publicly.

The court may elect to have its opinion reviewed for redaction of classified information. This review is performed in confidence and shielded from the parts of 

the government acting as a party in the case. If redaction is necessary, then a re-
30 National Security Case Management (2011)

dacted opinion will be issued publicly and the unredacted opinion will be provided only to those cleared to see it. Classified information must not appear on the 

public record, and it is important for courts to keep in mind their limited expertise 

in what is classified and what is not.

CASE NOTES

Twentieth Hijacker

The court of appeals’ clerk’s office anticipated 

that the prosecution of Zacarias Moussaoui for 

terrorism conspiracy would result in an appeal 

that included classified information in the 

court record. So the clerk’s office worked with 

the classified information security officer to 

(1) create a SCIF and (2) begin the process of 

obtaining security clearances for several staff 

members. In 2009, the court worked with the 

classified information security officer to establish a new SCIF suitable for working in and 

meeting in, in addition to storage.

Judges can review classified information 

stored in the court’s SCIF in Richmond, Virginia, when they are in town for oral arguments. At judges’ home chambers, they can 

review classified documents stored in SCIFs 

in one of two ways. Either the classified information security officer can bring classified 

documents to the judges, or the documents can 

be stored in nearby SCIFs for the judges to

review there. For example, Judge Wilkins had 

chambers in Greenville, South Carolina, and 

the courthouse there has a SCIF. Judge Williams had chambers in Orangeburg, South 

Carolina, which is approximately 50 miles 

from an FBI SCIF in Columbia. Judge 

Shedd’s Columbia chambers are much nearer 

to the FBI SCIF in Columbia.

Judge Gregory’s home chambers are in 

Richmond, so he always has ready access to 

the court of appeals’ SCIF. He does not have a 

career law clerk, and security clearances can

take such a large fraction of a temporary law 

clerk’s tenure to acquire that he relies on a 

court of appeals staff attorney, who has a security clearance, to help him with matters involving classified information.

Briefs containing classified information 

were filed with the classified information security officer, and redacted briefs were filed in 

the public record. While the defendant was 

pro se, he filed many papers with the court of 

appeals as well as with the district court. The 

court of appeals typically regarded the filings 

as appeals, which were reviewed and dismissed. The court worked out a procedure 

with the jail where the defendant was being 

detained: the jail would forward a filing directly to the classified information security

officer, who would notify the court that a document had been received. After a security review, a redacted version of the document 

would be filed in the public record.

For an unsuccessful petition to rehear en 

banc a ruling on an interlocutory discovery

appeal, full briefs were filed in the court’s 

Richmond SCIF, and redacted copies were 

sent to each judge. Some judges opted to review the full briefs in Richmond, and some 

judges opted to rely on the redacted briefs.

Four appeals were heard in this case, and 

all oral arguments included both a public session and a closed session at which classified 

information could be discussed. At the public 

session, a classified information security officer and a CIA officer attended to monitor the 

proceeding in case it needed to be interrupted 

to prevent disclosure of classified information. 

At these public sessions, no interruption was 

necessary.

Dirty Bomber

In the habeas corpus appeal of Jose Padilla—

originally detained as an alleged dirty bomber 

but later tried for terrorism conspiracy—the 

court of appeals reviewed classified declarations presented to the district court but found 

that it could decide the case without relying on 

them. Padilla v. Rumsfeld, 352 F.3d 695, 701 

n.4 (2d Cir. 2003).

A Plot to Kill President Bush

In the appeal of Ahmed Omar Abu Ali, who 

was convicted of terrorism conspiracy and 

conspiracy to kill the President, part of the 

record and part of the briefing were classified.

United States v. Abu Ali, 528 F.3d 210, 244 

n.13 (4th Cir. 2008). Some of the materials 

were designated for judges’ eyes only, which 

meant that even law clerks with security 

clearances could not see them. Classified ma-
National Security Case Management (2011) 31

terials were filed through the classified information security officer. Classified materials 

for this case had to be stored in a SCIF, so 

judges either viewed them while in Richmond, 

Virginia, for a session or by using a SCIF near 

home chambers. Communications among 

members of the panel about classified matters 

could happen only in person or by secure fax. 

Part of oral argument was conducted in closed 

session.

Mistaken Rendition

The Court of Appeals for the Fourth Circuit 

affirmed a district court’s dismissal, on statesecrets grounds, of a complaint alleging that 

the CIA abducted and imprisoned Khaled elMasri until the agency realized that it had 

picked up the wrong person. El-Masri v. Tenet, 479 F.3d 296 (4th Cir. 2007). The three 

judges hearing the appeal reviewed a classified declaration designated for judges’ eyes 

only while they were in Richmond, Virginia, 

where the court sits. One judge made a special 

trip from Charleston, West Virginia, to review 

the declaration; the other judges reviewed the 

declaration when they were in town to hear 

other cases. Deputy clerks with security clearances transported the declaration from the 

court’s SCIF to each judge’s chambers, and 

back again, for the judges’ private reviews. 

While considering el-Masri’s unsuccessful 

petition for certiorari, two Supreme Court justices also reviewed the classified declaration.

Giving State Secrets to Lobbyists

The court of appeals heard expedited appeals 

of district court rulings on classified evidence 

in a sting prosecution of lobbyists for sharing 

classified information. United States v. Rosen, 

557 F.3d 192, 197 (4th Cir. 2009). Briefing 

included classified information, so classified 

briefs were filed with the classified information security officer, and redacted briefs were 

filed in the public record. Judges reviewed 

classified briefs either while they were in 

Richmond to hear an earlier case or at a SCIF 

near their home chambers. Parts of oral arguments were held in closed sessions so that the 

parties could discuss classified information 

with the court. Eight portions of the court of 

appeals’ published opinion resolving the district judge’s rulings on classified evidence are 

redacted.

Warrantless Wiretaps

Judges hearing appeals in actions challenging 

a secret and allegedly illegal surveillance program by the National Security Agency were 

asked by the government to receive classified 

ex parte arguments. Typically, the government 

lodged complete classified briefs and declarations for in camera review by the judges and 

filed redacted versions of these documents for 

the public record. Plaintiffs were not granted 

access to any classified information in these 

cases. One proceeding before the Court of 

Appeals for the Sixth Circuit was conducted 

under seal with both sides present, but plaintiffs otherwise had access only to public filings and proceedings.

Classified information security officers do 

not disclose to persons outside the court, including attorneys representing the government, their visits to judges’ chambers before 

the judges assigned to the appeal or the judge 

assigned to write the opinion has been made 

public.

The Court of Appeals for the Ninth Circuit 

permitted C-SPAN to televise oral argument 

so long as the program was not aired until after the court had an opportunity to excise any 

inadvertently disclosed secrets, a contingency 

that did not occur. The classified information 

security officer offered to review the court’s 

opinion for inadvertently disclosed classified

information before the opinion’s release, but 

the court declined the offer.

Torture Flights

For a Ninth Circuit en banc panel review of a 

district court’s dismissal on state-secrets 

grounds of a tort action pertaining to extraordinary rendition, circuit judges could review 

classified ex parte briefing and declarations 

(1) in their chambers, delivered by a classified 

information security officer, or (2) in San 

Francisco, while in town for oral arguments.

Classified information security officers received advance notice that the case would be 

reheard en banc, but they keep such information confidential with respect to units of the 

government responsible for representing the 

government as a party.
32 National Security Case Management (2011)

Putting the Cat Back in the Bag

Occasionally classified information is inadvertently put into the public record or 

disclosed to someone who should not have received it. This occurrence typically 

presents a choice between corrective action, which might draw additional attention to the classified information, and a hope that the matter will be minimally noticed.

It is difficult to describe specific instances of this unfortunate occurrence 

without drawing further attention to classified information.

The court security officer must be consulted in the crafting of a remedy to inadvertently disclosed classified information.

CASE NOTES

Twentieth Hijacker

In the prosecution of Zacarias Moussaoui for 

terrorism conspiracy, even while the defendant was appearing pro se he was not supposed to have access to classified information. 

But, the government inadvertently included 

classified materials among documents produced to him. The government told the district 

judge that two documents produced to Moussaoui had mistakenly not been marked classified and asked that a “walled-off FBI team” 

search the defendant’s cell to retrieve the documents. The judge determined that even a 

walled-off FBI team would not adequately 

protect the defendant’s work product. Instead, 

the judge permitted the U.S. Marshals Service, 

in consultation with the classified information 

security officer, to search the prison cell for 

the two documents plus an additional five that 

the government identified in the interim as 

improperly produced. Of the seven searched 

for, five were found. By the following week, 

the government presented to the judge a list of 

43 improperly produced documents. Many of 

the documents were prepared by FBI agents 

who were brought into September 11 investigations without sufficient training in handling 

and labeling classified information. Eventually, the documents were retrieved and properly 

marked as classified.

Warrantless Wiretaps

It is important to ensure that information redacted from the public record is redacted effectively. In an action challenging a secret and 

allegedly illegal surveillance program, a defendant telecommunication company electronically filed a brief with several lines redacted, 

but the redacted text could be retrieved easily 

from the electronic document. When this was 

brought to the court’s attention, the electronic 

text file was replaced with an electronic image 

file. The redacted information in this case was 

not classified, but was at most trade secrets.
33

Part II

Other Issues

Attorney–Client Issues

Attorney–client issues in national security prosecutions are similar to the issues in 

other criminal cases, but they tend to occur more frequently and be more serious.

Criminal Justice Act Appointments

Acting as a defense attorney in a prosecution for terrorism or espionage often requires special skills and a security clearance. Courts appointing defense counsel in 

national security cases often have to consider whether to make appointments outside of the routine selection of attorneys pursuant to the Criminal Justice Act.

Sometimes defense attorneys cannot obtain security clearances, and sometimes they are unwilling to submit to the necessary background checks. Courts 

sometimes appoint a cleared attorney to assist in a defense if only part of the case 

involves classified information. If the defendant elects to proceed pro se, then 

courts often appoint cleared counsel as backup.

CASE NOTES

Plot to Bomb New York City Tunnels 

and Landmarks

El Sayyid Nosair was a coconspirator of the 

blind sheik Omar Abdel Rahman in a plot to 

bomb New York City tunnels and landmarks in 

the 1990s. When the indictment was filed, Nosair was in prison on a state conviction related to 

the killing of Rabbi Meir Kahane, a former 

member of the Israeli parliament. United States 

v. Rahman, 189 F.3d 88, 105 & n.3 (2d Cir. 

1999). Michael Warren had represented Nosair 

at the state murder trial. Warren had also appeared on behalf of Ibrahim el-Gabrowny, the 

first-indicted member of the bombing conspiracy, at el-Gabrowny’s first appearance on a criminal complaint filed in advance of the indictment. 

The district court denied Nosair’s request that 

Warren be appointed under the Criminal Justice 

Act (CJA), as an exception to regular CJA procedures. Instead, the court appointed a CJA panel attorney.

Prosecution of a Guantánamo Bay 

Detainee for 1998 Embassy Bombings

Ahmed Khalfan Ghailani was indicted in 1998 

for participation in the bombing of the American embassies in Kenya and Tanzania, but after his capture in 2004 he was transferred to 

Guantánamo Bay until 2009, when he was 

transferred to the district court. United States 

v. Ghailani, 751 F. Supp. 2d 515, 518 

(S.D.N.Y. 2010). Military commission proceedings had been initiated at Guantánamo 

Bay, and Ghailani asked that his military lawyers continue to represent him. But the Department of Defense did not consent to Ghailani’s request, and the district judge ruled that 

an indigent defendant does not have a constitutional right to select counsel.

The judge did agree to dismiss one appointed attorney because of the defendant’s 

dissatisfaction with him.

Lackawanna

For the high-profile prosecution of six Lackawanna men for attending a violent jihadist 

training camp in Afghanistan, a magistrate 

judge made a deliberate effort to appoint wellknown and well-respected attorneys, including 

the federal defender, to represent the defendants.

Fort Dix

After being successfully prosecuted for conspiracy to attack Fort Dix, four defendants 

sought new counsel for their appeals. The district court determined that circumstances did 

not justify departure from the usual practice of 

trial counsel continuing on appeal.
34 National Security Case Management (2011)

Conflicts of Interest

In criminal cases, conflicts of interest are avoided by codefendants having separate counsel. Because conflicts are waivable, courts must often grapple with attorney and client preferences that could create conflicts.

CASE NOTES

Plot to Bomb New York City Tunnels 

and Landmarks

The first defendant indicted in the 1990s prosecution for a plot to bomb New York City 

tunnels and landmarks was Ibrahim elGabrowny, who was initially indicted for assaulting federal agents executing a search warrant of his home. United States v. ElGabrowny, 35 F.3d 63, 64 (2d Cir. 1994). After one of the 1993 World Trade Center 

bombers, Mohammad A. Salameh, failed four 

attempts to get a New Jersey driver’s license, 

he got a New York driver’s license using elGabrowny’s address, so agents obtained a 

warrant to search the home as part of the investigation of the World Trade Center bombing. United States v. Rahman, 189 F.3d 88, 

108 (2d Cir. 1999).

El-Gabrowny was represented by William 

M. Kunstler, a famous defense lawyer, see

Albert Ruben, The People’s Lawyer: The Center for Constitutional Rights and the Fight for 

Social Justice, From Civil Rights to Guantánamo 91 (2011), at a preindictment bail hearing on a criminal complaint filed the day after 

the search. United States v. Rahman, 837 F. 

Supp. 64, 65 (S.D.N.Y. 1993). When the indictment was superseded to include Siddig 

Ibrahim Siddig Ali and others as defendants, 

Kunstler appeared for both el-Gabrowny and 

Siddig Ali. Over Kunstler’s objection, the district judge appointed for each defendant a CJA 

panel attorney to advise the defendant of the 

hazards of joint representation.

Nearly one month after the indictment was 

expanded to include blind sheik Omar Abdel 

Rahman, Abdel Rahman’s retained attorney 

notified the court that he could no longer 

represent his client because they could not 

agree on a fee agreement. United States v. 

Rahman, 861 F. Supp. 266, 271 (S.D.N.Y. 

1994). Kunstler appeared for Abdel Rahman, 

but the government objected to Kunstler’s 

representing multiple defendants, and the 

court ruled that Kunstler could represent either 

el-Gabrowny and Siddig Ali or Abdel Rahman, but not all three. Abdel Rahman opted to 

represent himself, and the judge appointed a 

CJA panel attorney to assist him. Abdel Rahman was fully represented by the time of trial.

Seven months before trial, Siddig Ali obtained substitute counsel to help him try to 

cooperate with the government, but the government decided not to strike a deal. The district court determined that Kunstler could not 

resume representation of Siddig Ali because 

of Siddig Ali’s actions adverse to the interests 

of Kunstler’s other past and present clients. 

The court also determined that Kunstler’s various current and previous associations with 

several defendants in the case meant that he 

could no longer represent el-Gabrowny.

First Prosecution for 1998 Embassy 

Bombings

A severe conflict of interest arose when a defendant in the prosecution for the 1998 bombings of American embassies in Kenya and 

Tanzania stabbed a prison guard, because the 

defendant’s attorneys were not only witnesses 

to the stabbing but potential targets of a more 

elaborate scheme of violence. United States v. 

Bin Laden, 160 F. Supp. 2d 670, 673 

(S.D.N.Y. 2001). Because the trial was scheduled to begin only two months later, the defendant was severed from the trial. He pleaded 

guilty to attempted murder for the stabbing 

and has not been tried for the bombings.

Prosecution of a Charity

In the prosecution of the Holy Land Foundation and all of its principals for providing 

funds to Hamas, the foundation and its CEO 

were represented by the same attorney until 

the eve of trial on a waiver of conflict signed 

by the foundation’s chairman. At the pretrial 

oral conflict colloquy, the attorney for the 

chairman announced that he was not sure his 

client could speak for the foundation. The attorney for the CEO said that she was not sure 

anyone could speak for the foundation, so the 
National Security Case Management (2011) 35

judge allowed her to withdraw as the foundation’s attorney, and the trial proceeded without the foundation’s having representation. A 

mistrial resulted from the jury’s deadlock on 

counts against all defendants, and a different 

judge presided over the retrial because of the 

first judge’s taking senior status and no longer 

taking criminal cases. Because the docket 

sheet did not reflect the foundation’s attorney’s withdrawal, the second judge did not 

know that the foundation was not represented 

until sentencing. The sentencing judge determined that the foundation had de facto representation because of its common interests with 

the other defendants, and the issue is now on 

appeal.

Atlanta

In a prosecution of two young men in Atlanta 

for preparing for violent jihad by, among other 

things, making casing videos of strategic 

landmarks, Ehsanul Islam Sadequee was 

represented by the federal defender’s office. 

Sadequee was assaulted in detention by another inmate who was also represented by that 

office. The office, therefore, could no longer 

represent Sadequee, and another attorney was 

appointed.

Communication

Communication between defense attorneys and their clients in national security 

cases can be made complicated by (1) the attorneys’ not being able to share classified information with their clients and (2) security measures that infringe on the 

privacy or even possibility of attorney–client communications.

CASE NOTES

First Prosecution for 1998 Embassy 

Bombings

When the original defendants in the prosecution for the 1998 bombings of American embassies in Kenya and Tanzania were detained, 

they were cut off from virtually all communications. United States v. Bin Laden, 92 F. 

Supp. 2d 225, 231–32 (S.D.N.Y. 2000). The 

defendants were permitted to meet with their 

attorneys, but the attorneys were prohibited 

from sharing anything said in the attorney–

defendant meetings with investigators or experts, which seriously hampered the preparation of a defense.

Millennium Bomber

Because of an error by personnel at a Canadian courthouse, the attorneys representing 

Ahmed Ressam, who planned to drive from 

Canada to bomb the Los Angeles International 

Airport at the turn of the millennium, were 

permitted to copy certain documents in Canada, but they had to surrender the copies when 

the error was discovered. The U.S. prosecution moved for an order prohibiting the attorneys from discussing the documents with their 

client. The district judge told the attorneys that 

they could use the information that they obtained from the Canadian files as a last resort, 

but they could not disclose to their client the 

origin of the information.

Guantánamo Bay

Information provided to their habeas attorneys 

by Guantánamo Bay detainees was presumptively classified. A “privilege review team,”

walled off from attorneys representing the 

government in litigation, performed a classification review on detainee communications 

and their lawyers’ notes.

Dirty Bomber

Jose Padilla, who was originally detained on a 

material witness warrant as part of the grand 

jury investigation of the September 11, 2001, 

attacks, was transferred to military detention 

and designated an enemy combatant for an 

alleged plan to detonate a dirty bomb. Padilla

ex rel. Newman v. Bush, 233 F. Supp. 2d 564, 

571 (S.D.N.Y. 2002). The government denied 

Padilla access to counsel upon his transfer to 

military custody, arguing that Padilla might 

use contacts with counsel to communicate 

with other terrorists. The district court determined that Padilla was entitled to counsel “for 

purposes of presenting facts to the court in 

connection with” a habeas corpus petition.
36 National Security Case Management (2011)

Paintball

In the prosecution of Ali al-Timimi, the spiritual leader of northern Virginia men who 

played paintball in preparation for violent jihad, defense attorneys claimed that the Bureau 

of Prisons opened the defendant’s clearly labeled attorney–client mail and transferred the 

defendant so frequently from prison to prison 

that it was difficult for the attorneys to know 

where he was and make arrangements to see 

him. The judge ordered the defendant returned 

to the district.

Toledo

In a prosecution of Americans for conspiracy 

to fight against U.S. forces in Iraq, defense 

attorneys became concerned that their communications with their clients were being improperly monitored. Defense attorneys filed a 

motion to compel the government to describe 

with particularity how their clients’ communications were monitored, and government attorneys responded that they were not aware of 

any monitoring beyond the ordinary.

Rapport

Terrorism defendants’ attitudes toward the U.S. system of justice often range 

from distrust to hatred. This often makes rapport between defendants and their attorneys, especially appointed attorneys, difficult.

When appointing an attorney to represent a terrorism defendant, the court may 

want to consider the attorney’s experience with difficult clients or with clients 

from other cultures. There are many potential pitfalls. For example, attorneys often use humor to foster rapport with their clients, but that strategy is frequently 

risky in these cases.

Terrorism defendants may be more likely than other criminal defendants to act 

against the advice of counsel, such as by pleading guilty or electing to proceed pro se.

CASE NOTES

First Prosecution for 1998 Embassy 

Bombings

One of the attorneys appointed to represent a 

defendant in the original prosecution for the 

1998 bombings of American embassies in 

Kenya and Tanzania had to be dismissed for 

mocking his client’s religious beliefs. When 

the client explained to the attorney his belief 

that a martyr would have 13 virgin brides in 

paradise, the attorney jokingly lamented having 13 fathers-in-law. On the next morning, 

the judge found on his desk a request by the 

defendant for a new attorney. The judge 

granted the request.

Defendant Mamdouth Mahmud Salim 

stabbed a prison guard two months in advance 

of his scheduled trial. In re Terrorist Bombings of U.S. Embassies in East Africa, 552 

F.3d 93, 150 (2d Cir. 2008); United States v. 

Salim, 549 F.3d 67, 70 (2d Cir. 2008). Salim’s 

attorneys may have been targets of a more 

elaborate scheme of violence. United States v. 

Salim, 287 F. Supp. 2d 250, 250 (S.D.N.Y. 

2003). The district judge observed, “Lawyers 

don’t often represent somebody who hates 

them, who, all things being considered, would 

just as soon kill them. How you maintain an 

attorney–client relationship under those circumstances is very difficult.” Trying Cases 

Related to Allegations of Terrorism: Judges’ 

Roundtable, 77 Fordham L. Rev. 1, 13 (2008).

Twentieth Hijacker

The district court appointed the federal defender and a private attorney to represent Zacarias Moussaoui in his prosecution for terrorism conspiracy. United States v. Moussaoui, 

591 F.3d 263, 267 (4th Cir. 2010). The defendant had a strained relationship with his attorneys, especially with the private attorney. At a 

hearing on conditions of confinement, four 

months after his indictment, Zacarias Moussaoui announced that he would like to 

represent himself, possibly with the assistance 

of a Muslim attorney, because his assigned 

attorneys did not understand Muslims. Id. at 

269–70; United States v. Moussaoui, 333 F.3d 

509, 512–13 (4th Cir. 2003).
National Security Case Management (2011) 37

Moussaoui identified a Muslim attorney in 

Texas whom he wanted to consult with, but 

this attorney never made an appearance, never 

sought admission to the court’s bar, and never 

consented to the screening required for the 

security clearance that would be needed to 

represent Moussaoui in court.

While Moussaoui was proceeding pro se, 

the district judge appointed a second private 

attorney as standby counsel; by the end of the 

case, this was the attorney that the defendant 

was most willing to talk to because the defendant judged him to be the most respectful.

Toledo

In a prosecution of Americans for conspiracy 

to fight against U.S. forces in Iraq, the judge 

appointed the federal defender’s office as 

counsel for one of the defendants. The defendant was concerned that a government employee would not represent him adequately, 

and the judge reluctantly agreed to appoint 

substitute counsel. The defendant, however, 

was no more satisfied with substitute counsel, 

and he eventually asked the judge to reappoint 

the federal defender’s office, which the judge 

did.

Conditions of Detention

Conditions of detention for persons accused of doing harm to our national security 

are often very strict. Strict detention security measures are sometimes referred to 

as special administrative measures (SAMs). 

Judges are often attentive to the possibility that security measures will impair 

an effective defense, especially with respect to the confidentiality and effectiveness of attorney–client communications and the defendant’s mental health.

Security

Security measures for national security defendants can include solitary confinement. Security is tight to prevent defendants from communicating with conspirators. Also, national security defendants are often at an elevated risk of harm from 

other inmates.

Courts have not found incarceration necessary to ensure all national security

defendants’ presence for trial. Bail, perhaps with electronic monitoring or home 

detention, has been found sufficient for some.

CASE NOTES

First Prosecution for 1998 Embassy 

Bombings

When the original defendants in the prosecution for the 1998 bombings of American embassies in Kenya and Tanzania were detained, 

they were held in solitary confinement. United 

States v. Bin Laden, 92 F. Supp. 2d 225, 231–

32 (S.D.N.Y. 2000). In response to complaints 

by defense attorneys, the district judge visited 

the jail and approved the conditions of detention, except that he ordered that the defendants 

be permitted to call their families three times a 

month instead of once. United States v. ElHage, 213 F.3d 74, 77 (2d Cir. 2000).

Minneapolis

Mohamed Abdullah Warsame, who was indicted for attending Al-Qaeda training camps, 

was held in solitary pretrial detention for over 

five years. The district judge observed a resulting decline in the defendant’s mental 

health. The case was resolved by a plea bargain.

Chicago

In the prosecution of Muhammad Abdul Hamid Khalil Salah and Abdelhaleem Hasan 

Abdelraziq for helping to provide funds to 

Hamas, the judge permitted friends and relatives to post nearly $4 million worth of property to secure detention by home confinement.
38 National Security Case Management (2011)

Toledo

In a prosecution of Americans for conspiracy 

to fight against U.S. forces in Iraq, the judge 

decided that one of the defendants could be 

released on bond with electronic monitoring.

Access to Counsel

Because the government is worried about terrorism suspects’ communicating with 

terrorism conspirators, either directly or indirectly, there is often an effort to restrict or monitor counsel visits with and communication with their clients. Judges 

frequently attend to the possibility of excessive restrictions or monitoring. Sometimes judges intervene formally. Sometimes more informal inquiries and suggestions can achieve positive results.

CASE NOTES

Dirty Bomber

In the trial of Jose Padilla—who was originally detained as a dirty bomber but ultimately 

tried with two other men for terrorism conspiracy—the district court was called upon to 

issue orders directing the detention center to 

provide defendants with adequate access to 

counsel. One order granted defendants two 

15-minute telephone calls with their attorneys 

each week: “During these legal telephone calls 

the [federal detention center] officials shall 

stay a reasonable distance away from the Defendant to allow for sufficient privacy.” Order, 

United States v. Hassoun, No. 0:04-cr-60001 

(S.D. Fla. Sept. 21, 2005). As trial approached, the judge ordered the detention center to provide a larger conference table for 

meetings between the defendants and their attorneys.

Minneapolis

Mohamed Abdullah Warsame, who was indicted for attending Al-Qaeda training camps, 

was represented by the federal defender’s office. For a time, the government imposed restrictions on who in the defender’s office 

could communicate with Warsame, and the 

defender’s office could not agree to the restrictions. Eventually, the two sides were able 

to work out an agreement.

Mental Health

Strict conditions of detention, especially solitary confinement, can have a negative 

impact on a defendant’s mental health. Judges often attend to this possibility to 

ensure that the defendant’s ability to participate in his defense is not impaired.

Courts must nevertheless be wary of false or exaggerated claims of mental 

health impairment.

For a defendant held in solitary confinement as a preventive security measure, 

court appearances can be therapeutic. On the other hand, sometimes body 

searches performed on defendants as they are transported between court and the 

place of confinement can be unpleasant.

CASE NOTES

First Prosecution for 1998 Embassy 

Bombings

During a hearing, after several months of restrictive confinement, Wadih el-Hage, one of 

the defendants in the prosecution for the 1998 

bombings of American embassies in Africa, 

angrily criticized the district judge for not 

reading a letter el-Hage had prepared proclaiming his innocence and contending that the 

United States could have prevented the bombings. In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93, 149 (2d Cir. 

2008). Deputy marshals restrained the defendant when he leapt from his chair in the courtroom and appeared to charge the judge. Ap-
National Security Case Management (2011) 39

proximately six months later, a psychiatrist 

reported that el-Hage’s solitary confinement 

was seriously impairing his mental health. The 

prison agreed to give el-Hage a cell mate, but 

the court ruled that his conditions of confinement were largely proper, and el-Hage complained that the cell mate made his cell too 

crowded.

After a prison guard was stabbed by a codefendant, an incident not involving el-Hage, 

the prison removed el-Hage’s possessions and 

privileges. According to his wife, his mental 

state deteriorated sharply and he stopped recognizing his attorney. However, two courtappointed psychiatrists and a court-appointed 

psychologist determined that el-Hage was faking mental illness. The judge decided that the 

expert opinions were well founded and that elHage was competent to stand trial.

Prosecution of a Guantánamo Bay 

Detainee for 1998 Embassy Bombings

During the 2010 prosecution of Ahmed Khalfan Ghailani, a onetime fugitive, for the 1998 

bombings of American embassies in Kenya 

and Tanzania, the defendant complained that 

intrusive body cavity searches every time he 

appeared in court were causing him posttraumatic stress disorder. The district judge 

determined that the defendant was not suffering from post-traumatic stress disorder and 

denied relief. United States v. Ghailani, 751 F. 

Supp. 2d 508, 514 (S.D.N.Y. 2010). The defendant began to appear in court less frequently.

Guantánamo Bay

Guantánamo Bay detainees occasionally protested their confinement with hunger strikes 

and, more rarely, suicide attempts, some of 

which were successful. The district court determined that Congress had stripped the detainees of habeas rights concerning the conditions of their confinement, but that they could 

challenge conditions that affected their abilities to work with their attorneys on their cases, 

so the court sometimes was called on to issue 

orders concerning detainees’ medical issues.

Dirty Bomber

Jose Padilla, who was originally detained on a 

material witness warrant as part of the grand 

jury investigation of the September 11, 2001, 

attacks, was transferred to military detention 

and designated an enemy combatant for an 

alleged plan to detonate a dirty bomb. Padilla

ex rel. Newman v. Bush, 233 F. Supp. 2d 564, 

571 (S.D.N.Y. 2002). During his military detention, the government applied substantial 

psychological pressure as part of the detainee’s interrogation. Padilla ex rel. Newman v. 

Rumsfeld, 243 F. Supp. 2d 42, 43 (S.D.N.Y. 

2003). Padilla was subsequently transferred to 

civilian custody for a trial with two other men 

for terrorism conspiracy, unrelated to a dirty 

bomb, and Padilla’s attorneys claimed that the 

psychological pressure during military detention had resulted in incapacitating posttraumatic stress disorder. Because the security 

measures imposed for Padilla’s pretrial detention made psychiatric evaluation difficult 

within the detention center, the district judge 

provided her courtroom, without the judge 

present, for the evaluation. The judge found 

Padilla competent to stand trial.

For security reasons, Padilla and his codefendants were detained in solitary confinement. Three months after they were convicted, 

one defendant attempted suicide.

Minneapolis

Mohamed Abdullah Warsame, who was indicted for attending Al-Qaeda training camps, 

was held in solitary pretrial detention for over 

five years. For the sake of the defendant’s 

mental health, the judge encouraged the defendant’s attendance at proceedings, which 

afforded him time outside his cell and time in 

the presence of other people. Warsame was a 

Canadian citizen, and visits by the Canadian 

consulate were also helpful.

Cultural Accommodation

Prosecutions for assaults on national security may entail elements of cultural diversity. Judges strive to prevent cultural differences from creating distractions 

from the pursuit of justice.
40 National Security Case Management (2011)

For example, prosecutions of Muslim defendants as suspected terrorists have 

accommodated breaks for prayers and religious holidays. Some judges take testimony by affirmation rather than by oath so that jurors are not biased by unnecessary religious references.

CASE NOTES

First Prosecution for 1998 Embassy 

Bombings

The district judge carefully timed breaks in 

the trial to permit prayer at the appropriate 

times by the Muslim defendants, whose entry 

to and exit from the courtroom were made 

cumbersome by their hidden shackles.

Twentieth Hijacker

In his prosecution for terrorism conspiracy, 

Zacarias Moussaoui refused to honor the 

judge by standing when she entered or left the 

courtroom, so the judge arranged proceedings 

so that she and the defendant would enter and 

leave the courtroom at the same time.

Lackawanna

For the prosecution of six Lackawanna Muslim men for attending a violent jihadist training camp in Afghanistan, the district court 

timed hearings to accommodate both daily 

prayers and religious holidays. All testimony 

at the detention hearing before a magistrate 

judge was taken from government witnesses 

under oath, but the defendants’ pleas before 

the district judge were taken by affirmation.

Paintball

In the prosecution of northern Virginia men 

for playing paintball in preparation for violent 

jihad and for attending terrorist training camps 

in the Middle East, the district judge took all 

testimony by affirmation rather than by oath, a 

practice she developed so that no bias could 

result from whether a witness swore on a Bible or a Quran.

Atlanta

In a prosecution of two young men in Atlanta 

for preparing for violent jihad by, among other 

things, making casing videos of strategic 

landmarks, the court appointed a Muslim attorney from a nearby district to represent one 

of the defendants.

High Profile

National security cases are often high in profile. Sealing parts of the case record 

and closing some proceedings to protect national security often fosters curiosity in 

the news media about what they are missing. Otherwise, issues relating to some 

high-profile national security cases are largely similar to issues that arise in other 

high-profile cases.

Gag Orders

In high-profile cases, especially criminal cases, judges often consider issuing gag 

orders restricting the participants’ public comments on the cases so that prospective jurors will not be improperly influenced. The parties often stipulate to such 

orders. Appellate courts work to ensure that gag orders are no more restrictive 

than necessary.

CASE NOTES

First World Trade Center Bombing

In the prosecution for the 1993 bombing of the 

World Trade Center, the Court of Appeals for 

the Second Circuit vacated as overbroad a district court gag order prohibiting attorneys 

from making any public statements related to 

the case. United States v. Salameh, 992 F.2d 

445, 447 (2d Cir. 1993). The district judge issued the gag order orally and sua sponte at 

arraignments one day after a superseding in-
National Security Case Management (2011) 41

dictment was filed, which was two weeks after 

the original indictment was filed. The judge 

said that his primary interest was retaining venue. But the court of appeals held that the gag 

order was not narrowly tailored.

An order that prohibits the utterance or 

publication of particular information or 

commentary imposes a “prior restraint” on 

speech. A prior restraint on constitutionally 

protected expression, even one that is intended to protect a defendant’s Sixth 

Amendment right to trial before an impartial 

jury, normally carries a heavy presumption 

against its constitutional validity.

Id. at 446–47.

Detroit

In the first post-September 11, 2001, prosecution for terrorism, the judge issued a stipulated 

gag order forbidding public comments about 

the case that would have a reasonable likelihood of interfering with a fair trial. Eight days 

later, the Attorney General incorrectly stated 

at a press conference that the defendants were 

“suspected of having knowledge of the September 11th attacks.” United States v. Koubriti, 305 F. Supp. 2d 723, 725, 728–30, 733 

(E.D. Mich. 2003). Also, during the trial, the 

Attorney General commented favorably at a 

press conference on the credibility of a cooperating codefendant’s testimony. The judge issued “a public and formal judicial admonishment of the Attorney General.” Id. at 726.

Media Attention

Enhanced media attention in a case poses two types of challenge for the court: 

(1) an increase in the number of people visiting the courthouse, many of whom 

come with extensive collections of electronic equipment, and (2) an increased expectation of the amount of information provided.

Most news media pay attention only to major events in a case, although some 

news media may follow the case in greater detail. It is not always predictable 

what will draw heavy media attention.

Managing the logistics of media attention can be quite a challenge. An increase in the number of persons visiting the courthouse often requires additional 

security considerations, including attention to the efficiency of security in light of 

the increased number of visitors. Courts have to address the issue of what electronic equipment can be brought into the courthouse. Even if electronic equipment 

is forbidden in the courtroom, courts often accommodate it elsewhere in the 

courthouse, such as in an overflow courtroom.

Logistical issues pertaining to an increase in courthouse visitors often extend 

to the neighborhood. Courts often work with local authorities to anticipate and 

manage increased traffic near the courthouse. This increased traffic often includes 

large media vehicles parked to transmit information.

Media reports on the courthouse steps are a common practice. Because of 

weather, security, or logistical issues, courts may prefer that media reports be delivered from another location. Courts sometimes have space they can use as a media room for this purpose.

It is helpful to both the court and the media for the court to provide the media 

with a designated contact person for information and for what the media can expect in terms of schedules, filings, and proceedings. E.g., Steve Leben, Ten Tips 

for Judges Dealing with the Media, 47 Ct. Rev. 38 (2011).
42 National Security Case Management (2011)

CASE NOTES

Lackawanna

The prosecution of six Lackawanna men for 

attending a violent jihadist training camp in 

Afghanistan drew media attention from all 

over the world. The pretrial detention hearing 

was held soon after the first anniversary of the 

September 11, 2001, attacks. The public 

square in front of the courthouse was filled 

with large media vans, and there were public 

picketers in the square and around the courthouse. A popular picket read, “Jail, No Bail.” 

The magistrate judge who conducted the hearing strove to provide the government and the 

defendants with a fair and peaceful hearing, 

mindful that the world was watching how the 

criminal defendants were treated.

Atlanta

A prosecution of two men for preparing for 

violent jihad by, among other things, making 

casing videos of strategic landmarks received 

extensive media coverage, especially by local 

news media. One local journalist sat through 

the entire trial.

Several news media attended a routine status conference held in the magistrate judge’s 

chambers, because there had been talk of closing the proceeding. The judge observed that 

sealing documents and closing proceedings 

often intensifies news media interest.

Fort Dix

A prosecution for conspiracy to attack Fort 

Dix received substantial media attention. In 

part because of the cold December weather in 

Camden, New Jersey, where the trial was 

held, the judge did not want press conferences 

on the steps of the courthouse following the 

verdict, so news media were asked to gather in 

the jury assembly room. The government addressed the media for the first half hour; then 

defense counsel and families of the defendants 

addressed the media. The media could bring in 

cameras and recording devices during these 

presentations. Because it worked well, a similar procedure was used after sentencing.

Reserved Seating

If spectator space in the courtroom will be at a premium, courts often work with 

the deputy marshals and security officers to ensure that some seating is reserved 

for the defendants’ families, persons affiliated with alleged victims, news media, 

and the public, respectively.

CASE NOTES

Prosecution of a Guantánamo Bay 

Detainee for 1998 Embassy Bombings

In the 2010 trial of Ahmed Khalfan Ghailani, 

a onetime fugitive, for the 1998 bombings of 

American embassies in Kenya and Tanzania, 

the judge reserved some seats in the courtroom for the news media.

Atlanta

At a trial of two young men for preparing for 

violent jihad by, among other things, making 

casing videos of strategic landmarks, the 

judge reserved a row of seats for the news 

media. Because it was a bench trial, the judge 

permitted sketch artists to sit in the jury box.

Remote Viewing

It is common for courts to set aside at least one additional courtroom during highprofile cases. Proceedings in the main courtroom are displayed in the overflow 

courtroom audiovisually. In some cases, courts have transmitted proceedings audiovisually to remote locations, such as other courthouses in the district or courthouses in other locations where interest is likely to be high.
National Security Case Management (2011) 43

Some judges provide the media with an overflow courtroom in which media 

members can use electronic equipment. On occasion, the news media have been 

permitted to use some electronic equipment in the main courtroom.

The extent to which overflow courtrooms are actually used, especially in remote locations, is often unpredictable.

CASE NOTES

Twentieth Hijacker

In the penalty trial for Zacarias Moussaoui, to 

determine whether he should be executed, 

proceedings were broadcast to viewing sites in

Manhattan, Central Islip, Boston, Philadelphia, Newark, and a second courtroom in 

Alexandria, Virginia, for family members of 

September 11, 2001, victims. Fewer people 

watched the proceedings at off-site locations 

than was anticipated.

Fort Dix

For a high-profile prosecution charging conspiracy to attack Fort Dix, the court designated two overflow courtrooms: one for the news 

media and one for the rest of the public. Because the judge permitted the media to use 

laptop computers in the main courtroom and 

gave them wireless Internet access, they did 

not use their overflow courtroom. Journalists 

used the court’s wireless Internet access to 

blog about the case in real time. Recording 

devices were not permitted in the courtroom, 

published likenesses of the jurors were prohibited, and members of the public were forbidden from bringing in electronic equipment. 

The overflow courtroom was needed for the 

rest of the public on the first day of the trial 

and on the day of the verdict.

Courtroom Displays of Support or Opposition

Judges typically do not allow persons attending a trial in support of one of the 

parties to in any sense become a cheering section, especially if the case is tried before a jury.

CASE NOTES

First Prosecution for 1998 Embassy 

Bombings

In the original trial for the 1998 bombings of 

American embassies, many survivors of the 

bombings attended the trial wearing lapel 

pins, provided by a victims’ advocate, showing a map of Africa with Kenya and Tanzania 

highlighted. The pins helped the deputy marshals identify victims for appropriate seating; 

but after defense counsel argued that the pins 

would improperly influence the jurors, the 

judge ordered that they not be worn.

Making Filings and Evidence Available to News Media

Court filings are now available on the Internet through PACER (Public Access to 

Court Electronic Records). Use of PACER, however, requires a PACER account. 

Although filings by the judge typically are available in PACER without charge, 

other filings are only available for a per-page fee. In a high-profile case, a court 

will often set up a special webpage at the court’s Internet site and post all filings 

for the case there. That makes these filings available free of charge to anyone with 

access to the Internet, including news media, without their need to contact the 

court.

Some courts also work to promptly post on the Internet trial exhibits and even 

proceeding transcripts.
44 National Security Case Management (2011)

CASE NOTES

Atlanta

In a prosecution for preparing for violent jihad 

by, among other things, making casing videos 

of strategic landmarks, news media had access 

to all of the evidence on the day that it was

admitted. The U.S. Attorney’s Office was responsible for providing copies of evidence to 

the media.

Fort Dix

For a high-profile prosecution charging conspiracy to attack Fort Dix, the court set up a 

public website where documents in the case 

file were posted. This allowed access to the 

documents without going through PACER. 

Evidence was posted the moment it was admitted. Each side loaded digitized exhibits on 

a secure server in advance of moving for their 

admissibility. Neither side had access to the 

other side’s exhibits on the server until they 

were admitted.

The court also posted proceeding transcripts on the server in a way that permitted 

free access to the proceedings while protecting 

the court reporters’ proprietary rights in the 

transcripts. Transcript text rolled on the public 

website in continuous loops so that a website 

visitor would see whatever few lines of text 

were displayed at that moment, and lines of 

text scrolled by as the viewer looked at the 

transcript.

Courthouse Security

Concerns about physical security during trials and other proceedings are often 

heightened in high-profile cases involving persons possibly prone to dangerous 

behavior or in cases that might attract the interest of persons prone to dangerous 

behavior.

Sometimes, defendants are discreetly shackled. Sometimes, courts establish 

additional security at entrances to both the courthouse and the courtroom. The anticipated volume and type of traffic near the courthouse may be a reason for additional perimeter security.

One downside of tight security in a criminal jury trial is a possibly prejudicial 

message it might send to the jury that the defendants might be dangerous.

CASE NOTES

Plot to Bomb U.S. Airplanes in 

Southeast Asia

In the trial for conspiracy to bomb American 

airplanes in southeast Asia, the district judge 

had to dismiss the first 75 prospective jurors 

because they indicated that they would be influenced by heavy court security.

First Prosecution for 1998 Embassy 

Bombings

In the original prosecution for the 1998 bombings of American embassies in Kenya and 

Tanzania, defendants were always shackled 

when in the courtroom because of an incident 

during a hearing in which a defendant began 

to angrily charge toward the judge. When the 

jury trial began, a screen at the defense table 

covered the defendants’ shackles and jurors 

were not present when the defendants were 

brought in and out. Persons in the courtroom 

were not asked to rise when the judge entered.

Persons entering the courtroom had to pass 

through a metal detector and sign a log book 

stating their purpose in attending the trial. The 

jury room was guarded by deputy marshals 

and checked each morning by bomb-sniffing 

dogs.

The defendants were sentenced on October 

18, 2001. In re Terrorist Bombings of U.S. 

Embassies in East Africa, 552 F.3d 93, 102 

(2d Cir. 2008); United States v. Bin Laden, 

397 F. Supp. 2d 465, 474 (S.D.N.Y. 2005). 

Because of the recent and nearby attacks on 

September 11, court security on the day of 

sentencing was substantially enhanced. According to the New York Times, “The building 

resembled a military base, with federal marshals carrying shotguns, public entrances 
National Security Case Management (2011) 45

closed and the screening of visitors increased.” Benjamin Weiser, 4 Are Sentenced 

to Life in Prison in 1998 U.S. Embassy Bombings, N.Y. Times, Oct. 19, 2001, at A1.

Millennium Bomber

At the first appearance in court in Seattle of 

Ahmed Ressam, who planned to bomb the Los 

Angeles International Airport at the turn of the 

millennium, “Security was so tight at the 

courthouse that anyone entering—even employees—had to produce a photo identification. A phalanx of U.S. marshals also blocked 

the door to [the magistrate judge’s] courtroom 

and armed officers patrolled the streets as 

Ressam was brought to the courthouse.” Scott 

Sunde & Elaine Porterfield, Wider Bomb Plot 

Possible, Seattle Post-Intelligencer, Dec. 18, 

1999, at A1.

For the subsequent trial in Los Angeles also, security was enhanced, including added 

patrols, bomb-sniffing dogs, and inspections 

of cars entering the underground garage.

Twentieth Hijacker

The federal courthouse in Alexandria, Virginia, had never seen such a level of security as it 

saw for the prosecution of Zacarias Moussaoui 

for terrorism conspiracy. At his arraignment, 

Moussaoui arrived before 6:00 a.m., while it 

was still dark. Deputy marshals surrounded 

the courthouse, and extra metal detectors were 

stationed at the courtroom. Although the outside air was frigid, members of the news media and the public were not allowed into the 

building until shortly before the hearing. At 

subsequent appearances also, extra deputy 

marshals guarded the courthouse.

Dirty Bomber

In the Miami trial of three men—including 

Jose Padilla, who was originally detained as a 

dirty bomber but was ultimately tried for terrorism conspiracy—federal deputy marshals 

were brought in from around the country to 

provide the courthouse with extra security. An 

extra metal detector was installed outside the 

courtroom door.

Lackawanna

For the prosecution of six Lackawanna men 

for attending a violent jihadist training camp 

in Afghanistan, the marshal established extra 

security at the courthouse doors. The courthouse received security sweeps three times a 

day, and security included a bomb-sniffing 

dog. The defendants pleaded guilty; during the 

days of pleas and sentences, armed surveillance officers were posted at the windows in 

the judge’s chambers.

Toledo

In a prosecution of Americans for conspiracy 

to fight against U.S. forces in Iraq, the judge 

was concerned about the impact on potential 

jurors of highly visible extra security. For example, parked outside the courthouse was a 

conspicuously marked Department of Homeland Security SUV. It did not help that one 

news station reported on the case with a 

graphic titled, “Terror in Toledo.” The judge 

worked with security forces to convey less of 

a siege image.

Fort Dix

In a high-profile trial for conspiracy to attack 

Fort Dix, court security was enhanced. Additional precautions were taken during the two 

days of sentencing. No other judge scheduled 

proceedings for those days, and court staff 

were encouraged to work at home. Because a 

jury was not present, there was a greater visible presence of security.

Jury Issues

Jury trials in national security cases present issues common to jury trials in other 

high-profile trials in which security is a matter of concern.

Size of Venire

Sometimes national security trials are long and complex, which means the court 

will have to assemble a large venire to allow for hardship excuses. Often it is anticipated that the facts of the case will stimulate prejudicial emotions among potential jurors, so judges sometimes allow for extra challenges and a larger venire 
46 National Security Case Management (2011)

to accommodate them. On the other hand, sometimes a normal-sized venire can 

be used for a national security case.

CASE NOTES

First World Trade Center Bombing

According to news media, the district court 

issued 5,000 extra jury summonses to assemble a jury pool for the trial against those accused of bombing the World Trade Center in 

1993.

First Prosecution for 1998 Embassy 

Bombings

In the original prosecution for the 1998 bombings of American embassies in Kenya and 

Tanzania, the district judge screened a jury 

pool of 1,302 people with the help of a questionnaire.

Millennium Bomber

In the prosecution of Ahmed Ressam, who 

planned to bomb the Los Angeles International Airport at the turn of the millennium, a jury 

was selected from 44 prospective jurors after a 

little more than seven hours of voir dire.

Detroit

In the first post-September 11, 2001, prosecution for terrorism, the district court selected 

280 prospective jurors for the case.

Twentieth Hijacker

In the prosecution of Zacarias Moussaoui for 

terrorism conspiracy, the district court sent out 

more than 1,000 jury summonses and had 

more than 500 potential jurors fill out jury 

questionnaires.

Dirty Bomber

In the trial of Jose Padilla, originally detained 

as a dirty bomber but ultimately tried for terrorism conspiracy, the district judge decided 

to send out 3,000 jury duty letters for the trial. 

Jurors were selected from an initial pool of 

approximately 300, and then from a pool 

culled using a jury questionnaire of 88 potential jurors.

Anonymous Jury

If defendants are likely to be dangerous or associated with dangerous people, 

judges often consider using anonymous juries to protect the jurors’ safety. Sometimes judges use anonymous juries to protect jurors from media harassment in 

high-profile cases. Judges are often cautious about using an anonymous jury to 

protect the jurors’ safety, because a suggestion that the jurors are in danger may 

have a prejudicial impact. On the other hand, jurors’ safety is a crucial consideration.

Sometimes the identities of anonymous jurors are known to the judge and the 

parties, but not the news media or the public; sometimes the jurors’ identities are 

known only to a few members of the clerk of court’s staff.

Voir dire of prospective anonymous jurors has sometimes been conducted in 

closed session. Judges have sometimes accommodated a public right of access to 

voir dire by releasing redacted transcripts or allowing select news media representatives to attend.

CASE NOTES

First World Trade Center Bombing

The district judge used anonymous juries for 

the two trials. When an alternate juror’s anonymity became at risk in the second trial, the 

judge dismissed the juror.

Plot to Bomb New York City Tunnels 

and Landmarks

The district judge used an anonymous jury. 

Voir dire was conducted in a conference room 

with the news media represented by two re-
National Security Case Management (2011) 47

porters—one from print and one from electronic media.

First Prosecution for 1998 Embassy 

Bombings

In the original trial for the 1998 bombings of 

American embassies in Kenya and Tanzania, 

the district judge used an anonymous jury and 

closed jury selection.

Prosecution of a Guantánamo Bay 

Detainee for 1998 Embassy Bombings

In the 2010 trial of onetime fugitive Ahmed 

Khalfan Ghailani, the district judge used an 

anonymous jury.

Millennium Bomber

In the prosecution of Ahmed Ressam, who 

planned to bomb the Los Angeles International Airport at the turn of the millennium, the 

judge was not asked to use an anonymous 

jury; he has never used one.

Detroit

In the first post-September 11, 2001, prosecution for terrorism, the judge used an anonymous jury and selected the jury behind closed 

doors. United States v. Koubriti, 305 F. Supp. 

2d 723, 728 (E.D. Mich. 2003); United States 

v. Koubriti, 252 F. Supp. 2d 424, 426 (E.D. 

Mich. 2003); United States v. Koubriti, 252 F. 

Supp. 2d 418 (E.D. Mich. 2002) (denying a 

motion opposing the empanelling of an anonymous jury). After the trial was over, the 

judge released a redacted transcript of the selection process.

Twentieth Hijacker

In the prosecution of Zacarias Moussaoui for 

terrorism conspiracy, the district judge used 

an anonymous jury. Jurors assembled in a secret location and were driven to the courthouse. The court set up a special lunch room 

for the jurors, away from the public. Jurors 

were never permitted to be in the building unsupervised.

Dirty Bomber

In the Miami trial of three men—including 

Jose Padilla, who was originally detained as a 

dirty bomber but was ultimately tried for terrorism conspiracy—jurors’ identities were 

known to the court and the parties, but identifying information was not presented in open 

court or otherwise made public.

Chicago

In the prosecution of Muhammad Abdul Hamid Khalil Salah and Abdelhaleem Hasan 

Abdelraziq for helping to provide funds to 

Hamas, the judge denied a government request for an anonymous jury, observing that 

the defendants were not in custody and that 

they had strictly adhered to the terms of their 

release and otherwise posed no danger.

Toledo

In a prosecution of Americans for conspiracy 

to fight against U.S. forces in Iraq, the judge 

used an anonymous jury. To minimize prejudice, the judge told the jurors that this was 

customary in a criminal case.

Sears Tower

For the prosecution of the “Liberty City Seven” for conspiracy to topple the Sears Tower 

and attack other buildings in various cities, the 

judge initially did not use an anonymous jury. 

Because an attorney working for one of the 

defendants gave a list of the jurors’ names to 

members of a defendant’s family, the judge 

used anonymous juries for the next two trials, 

which were required because of hung juries.

Fort Dix

In a high-profile trial for conspiracy to attack 

Fort Dix, the judge used an anonymous jury. 

Each juror met at one of two secret locations; 

deputy marshals shuttled the jurors to the 

courthouse. After the trial, jurors were given 

contact information for members of the news 

media, and they could contact them if they 

wished, but the media were not permitted to 

initiate the contacts.

Jury Questionnaire

In high-profile or sensitive cases, judges often accommodate the need to ask lots 

of voir dire questions by using a jury questionnaire. Such a questionnaire should 

be reviewed carefully to ensure that the questions are clear. Usually, shorter questionnaires are more likely to elicit more complete and thoughtful answers.
48 National Security Case Management (2011)

Some judges are disinclined to use jury questionnaires, preferring to conduct 

all voir dire orally, often with carefully prepared questions.

A jury questionnaire is always followed by individual oral voir dire of prospective jurors who have not been excluded on the basis of their questionnaire answers.

The Federal Judicial Center has assembled a selection of jury questionnaires 

used in national security cases: National Security Prosecutions: Jury Questionnaires and Preliminary Remarks to Prospective Jurors.

CASE NOTES

First World Trade Center Bombing

The district judge did not use a jury questionnaire, because “[t]here has been . . . absolutely 

no showing that jury questionnaires are of any 

particular help in the selection of a jury in 

highly publicized cases where a searching voir 

dire is conducted.” United States v. Salameh, 

No. 1:93-cr-180, 1993 WL 364486, at *2 

(S.D.N.Y. Sept. 15, 1993).

Plot to Bomb New York City Tunnels 

and Landmarks

The district judge used a jury questionnaire, 

which he had seldom done before, and he 

found it very helpful.

First Prosecution for 1998 Embassy 

Bombings

In the original trial for the 1998 bombings of 

American embassies in Kenya and Tanzania, 

the district judge used a jury questionnaire. 

The judge discovered that the questionnaire 

caused many jurors to assume that the court 

would tell them what penalty would go with 

each crime, and the questionnaire did not 

make clear that ultimate decisions on the 

death penalty would be made by the jury.

Prosecution of a Guantánamo Bay 

Detainee for 1998 Embassy Bombings

For the 2010 trial of Ahmed Khalfan Ghailani, 

a onetime fugitive, the district judge used a 

jury questionnaire. The judge made a special 

effort to ensure that using the questionnaire 

would not deprive the court of the benefits of 

oral voir dire.

Toledo

In a prosecution of Americans for conspiracy 

to fight against U.S. forces in Iraq, the judge 

used a jury questionnaire. Had he to do it over 

again, the judge would have given closer scrutiny to the questionnaire, which was prepared 

by the attorneys, because some of the questions proved to be confusing to the potential 

jurors.

Atlanta

For a trial on preparing for violent jihad by, 

among other things, making casing videos of 

strategic landmarks, the judge used a jury 

questionnaire. Prospective jurors filled out the 

questionnaire a week in advance of voir dire. 

This gave the lawyers and the court ample 

time to review the questionnaires to focus follow-up voir dire on the most important issues. 

The judge bifurcated the questionnaire so that 

prospective jurors filled out the first part, 

which focused on general background issues 

and matters that might affect a panel member’s service, before they filled out the second 

part, which focused on issues related to the 

nature of the trial, beliefs about Islam, and 

other case-specific matters.

Sears Tower

For the prosecution of the “Liberty City Seven” for conspiracy to topple the Sears Tower 

and attack other buildings in various cities, the 

judge did not use a jury questionnaire. The 

judge has never used one. She prefers face-toface voir dire in three phases: first are questions directed to the whole panel, second are 

individual general qualification questions, and 

third are more sensitive case-specific individual questions.

Fort Dix

In a high-profile trial for conspiracy to attack 

Fort Dix, the judge used a jury questionnaire. 

For five days, approximately 150 prospective 

jurors reported to the courthouse each day to 

fill out the questionnaire in the jury room, 

where the judge greeted them. In the court-
National Security Case Management (2011) 49

room, the judge and the attorneys reviewed 

answered questionnaires. Approximately twothirds of the prospective jurors were disqualified on the basis of the questionnaires alone.

Other Cases

Judges used jury questionnaires in the following cases as well:

• Detroit

• Twentieth Hijacker

• Dirty Bomber

• Prosecution of a Charity

Sequestration

If there is a substantial risk to jurors of danger or harassment arising from their 

service, then judges often arrange for the jurors to report to a secret remote location for transportation to the court by deputy marshals. This is sometimes referred 

to as partial sequestration, semi-sequestration, or soft sequestration. Full sequestration—secure overnight hotel accommodations for jurors—is sometimes used 

during the deliberation phase but seldom used before that.

Courts often provide semi-sequestered jurors with extra comforts, such as 

meals, refreshments, or even games and magazines to use during breaks. Sometimes courts require semi-sequestered jurors to eat lunch together and away from 

the public.

Judges are cautious about imposing any form of sequestration unnecessarily 

because of its additional expense, its possible prejudicial impact, and its inconvenience for the jurors.

CASE NOTES

First World Trade Center Bombing

Jurors reported to secret locations from which 

deputy marshals transported them to court, but 

jurors were not sequestered overnight. The 

judge sought to provide the jurors with extra 

comforts, such as meals and beverages.

Plot to Bomb New York City Tunnels 

and Landmarks

Jurors reported to secret locations from which 

deputy marshals transported them to court. 

Jurors were not sequestered overnight until it 

was time to deliberate, at which time the judge 

moved from a schedule of four days a week to 

seven days a week. The judge sought to provide the jurors with extra comforts, such as 

meals and beverages.

Prosecution of a Guantánamo Bay 

Detainee for 1998 Embassy Bombings

In preparation for the 2010 trial of Ahmed 

Khalfan Ghailani, a onetime fugitive, deputy 

marshals shuttled the jurors to and from the 

courthouse and provided them with breakfast, 

lunch, and refreshments.

Detroit

In the first post-September 11, 2001, prosecution for terrorism, the jurors assembled each 

morning at a secret location, and they were 

driven by van to the courthouse. Someone 

found out about the secret location and called 

the jury room with a death threat. The marshal 

changed the jurors’ meeting location, used a 

different-color van to transport them, and 

beefed up security for the courtroom.

Dirty Bomber

In the Miami trial of three men—including 

Jose Padilla, who was originally detained as a 

dirty bomber but ultimately was tried for terrorism conspiracy—potential jurors were 

shielded from the public during jury selection 

by a screen in the courthouse lobby.

The jury was semi-sequestered. Jurors did 

not report directly to the courthouse; they reported to one of two specific secret locations—one on the north side of town and one 

on the south side—from which they were 

shuttled to the courthouse. Instead of going 

their own way for lunch, they always ate together. Once a week or so, the deputy mar-
50 National Security Case Management (2011)

shals took them out for lunch. Restrooms on 

the courtroom’s floor were reserved for use by 

jurors and court staff only. Cubicle walls were 

used to screen off a rest area outside the jury 

room, a table and chairs were set up outside 

on a porch, and extra games and magazines 

were brought in.

Prosecution of a Charity

The prosecution of the Holy Land Foundation 

and its principals for providing funds to Hamas required two trials because of a hung jury 

after the first one. The judge presiding over 

the first trial had jurors meet in a secret location, and even the judge did not know where 

that was. They were shuttled to the courthouse, and they came to the courtroom floor 

in a secure elevator. They took lunch in the 

jury room. The judge presiding over the 

second trial chose not to use these special procedures so as not to communicate to the jurors 

that the case was unusual.

Toledo

In a prosecution of Americans for conspiracy 

to fight against U.S. forces in Iraq, jurors reported to an off-site location instead of to the 

courthouse. To minimize the prejudicial impact of this procedure, the judge told the jurors that meeting off-site was necessary because of insufficient courthouse parking, 

which to some extent was actually true.

Sears Tower

The prosecution of the “Liberty City Seven” 

for conspiracy to topple the Sears Tower and 

attack other buildings in various cities required three trials because of hung juries. In 

the first trial, an attorney working for one of 

the defendants gave a list of the jurors’ names 

to members of a defendant’s family, so the 

judge used an anonymous jury with partial 

sequestration in the second trial. Jurors met at 

undisclosed locations and were shuttled to the 

courthouse; the court provided them with 

lunch. For the third trial, however, the judge 

did not use sequestration, because it is a burden on the jurors and an additional operating 

expense. The judge monitored the situation, 

however, to see if sequestration would be warranted after all.

Fort Dix

In a high-profile trial for conspiracy to attack 

Fort Dix, the judge sequestered the jurors at a 

nearby hotel during deliberations.

Other Cases

Judges semi-sequestered jurors in the following cases as well:

• First Prosecution for 1998 Embassy 

Bombings

• Millennium Bomber

News of National Security Events

It will sometimes happen that during a trial related to a significant national security incident another significant national security incident will occur. It may be unreasonable to expect jurors to shield themselves from news of the second event, 

but judges are likely to caution them not to allow this news to prejudice the participation in the current trial.

CASE NOTES

Plot to Bomb New York City Tunnels 

and Landmarks

While defendants were being tried for a plot to 

bomb New York City tunnels and landmarks, 

related to the 1993 bombing of the World 

Trade Center, a bomb partially destroyed the 

federal building in Oklahoma City, including 

the courthouse there. The district judge permitted the New York jurors to consult news of 

the event, but admonished them not to let it 

influence them in the trial.
National Security Case Management (2011) 51

Special Evidence Issues

Witness Security

It is not uncommon in national security cases for the court to be asked to protect 

the identity of witnesses. Witnesses against the defendant may include informants 

who would be at risk if their identities were known; they may even be in the witness protection program. Witnesses may also include covert government agents, 

including foreign agents or security personnel. With respect to foreign government witnesses, protection of their identity may be a condition of the foreign government’s permitting them to testify.

Courts have permitted witnesses to testify under pseudonyms. Courts have also permitted witnesses to use special entrances to the courtroom, often those generally used for prisoners. “Light disguise” is sometimes permitted so long as the 

disguise does not obscure the witness’s demeanor or indicia of credibility. Judges 

sometimes forbid courtroom sketch artists from sketching the witness’s likeness.

Courts have sometimes shielded the witness’s face or voice altogether. Although the witness may not be shielded from litigants and court personnel, and 

from the jury if present at the proceeding, the witness may be shielded from the 

public either by screens or by use of an audiovisual feed to a second courtroom 

for the public. The witness’s image might be omitted from the video display, and 

the witness’s voice might be electronically altered.

Sometimes the testimony of foreign witnesses must be taken remotely by video deposition. This often includes defense representation both in court and at the 

foreign deposition location.

Judges are careful not to impose unwarranted or excessive protections.

CASE NOTES

First Prosecution for 1998 Embassy 

Bombings

An informant testified for the government in 

the trial for the 1998 bombings of American 

embassies in Kenya and Tanzania. In re Terrorist Bombings of U.S. Embassies in East 

Africa, 552 F.3d 93, 137–39, 141 (2d Cir. 

2008); United States v. Bin Laden, 397 F. 

Supp. 2d 465, 474 (S.D.N.Y. 2005). Prior to 

his testimony, he was identified, even to defense counsel, only as CS-1, which stood for 

“confidential source one.” In 1996, he separated from Al-Qaeda after embezzling money 

from one of Osama bin Laden’s companies. 

At an American embassy in Africa, he offered 

to help fight Al-Qaeda. The U.S. government 

kept him protected at an undisclosed location 

after he pleaded guilty in 1997 to a conspiracy 

charge in a sealed proceeding. In re Terrorist 

Bombings, 552 F.3d at 142; Bin Laden, 397 F. 

Supp. 2d at 474. The informant’s identity was 

not revealed to defense counsel until four days 

before his scheduled testimony, and a protective order forbade counsel from revealing the 

informant’s identity to the defendants until the 

day before the informant appeared in court. 

The district judge forbade courtroom artists 

from sketching the informant’s face.

Prosecution of a Guantánamo Bay 

Detainee for 1998 Embassy Bombings

In the 2010 trial of onetime fugitive Ahmed 

Khalfan Ghailani, the judge prohibited a courtroom artist from sketching a witness’s face. 

The witness did not testify at trial, because the 

judge found that his identity was discovered 

as a result of extremely harsh interrogation of 

the defendant. The witness testified at a suppression hearing, however, at a time when the 

witness’s identity was a secret. Because the 

witness’s identity was revealed at the hearing, 
52 National Security Case Management (2011)

the judge unredacted his name from court 

documents.

Millennium Bomber

In the prosecution of Ahmed Ressam, who 

planned to bomb the Los Angeles International Airport at the turn of the millennium, one of 

the witnesses against the defendant was Abdelghani Meskini, an accomplice who had 

pleaded guilty in another jurisdiction. He entered the witness protection program because 

of his testimony. He used a side door to enter 

the courtroom.

The district judge overruled the government’s attempts to protect the identity of 

another potential witness, such as by taking 

testimony remotely or behind a screen and 

withholding background information, and the 

government decided not to use the witness.

American Taliban

In the prosecution of John Walker Lindh, who 

became known as the American Taliban, the 

defendant pleaded guilty on a day the court 

was prepared to take testimony from a covert 

agent on a motion to suppress the defendant’s 

confession. To protect the witness’s identity, 

the district judge worked with the classified 

information security officers and the U.S. 

Marshals Service to make adjustments to the 

courtroom. The courtroom was outfitted with 

special draperies and screens. The witness box 

was shielded from the public, as was the path 

to the door through which prisoners often are 

brought—a door that would be used in this 

case for the witness.

The plan was for the defendant and his 

counsel to sit in the jury box so that they could 

see the witness, but the draperies shielded the 

witness from the public’s view. United States 

v. Rosen, 520 F. Supp. 2d 786, 795 n.15 (E.D. 

Va. 2007). The courtroom was equipped with 

an electronic device that would distort the 

witness’s voice, but the words would be understandable to the parties and the public.

September 11 Damages

In a civil action against alleged supporters of 

the September 11, 2001, attacks, some plaintiffs introduced as evidence supporting a default judgment against Iran videotaped testimony from Iranian government defectors. To 

protect the safety of the witnesses and their 

families, the court allowed the plaintiffs to file 

both a public brief and a sealed supplemental 

brief, with the defectors’ testimony as sealed 

exhibits.

Dirty Bomber

In the trial of Jose Padilla, originally detained 

as a dirty bomber but ultimately tried with two 

other men for terrorism conspiracy, special 

security measures were used for a witness 

who found an incriminating document in Afghanistan. The witness used a special entrance 

to enter and exit the courtroom, and he 

reached the floor of the courtroom from the 

basement in the prisoner elevator. The witness 

testified under pseudonym and in light disguise: black-rimmed glasses and a closely 

cropped beard. Sketch artists were prohibited 

from sketching him, and questioning could not 

breach CIA personnel and location secrets.

A Plot to Kill President Bush

Ahmed Omar Abu Ali, an American citizen 

educated at the University of Medina in Saudi 

Arabia, was convicted of terrorism conspiracy 

and conspiracy to kill the President. United 

States v. Abu Ali, 528 F.3d 210, 221, 226 (4th 

Cir. 2008). He was originally arrested in Saudi 

Arabia by the counterterrorism Mabahith on 

another matter: an investigation of a 2003 

bombing in Riyadh. Id. at 223–24, 238; United States v. Abu Ali, 395 F. Supp. 2d 338, 341, 

344, 367, 384 (E.D. Va. 2005). Mabahith 

questioning resulted in a confession to facts 

supporting the American indictment. Because 

the identities of Mabahith officers are secret, 

the Saudi government would not permit them 

to come to the United States to testify. They 

testified pseudonymously by video deposition 

conducted in Saudi Arabia. When portions of 

the depositions were played in court, only the 

judge, the parties, and the jury could see the 

video portion, but the public could hear the 

audio portion.

Prosecution of a Charity

The prosecution of the Holy Land Foundation 

and its principals for providing funds to Hamas required two trials because of a hung jury 

after the first one. At both trials, two witnesses 

testified under cover. Methods of protecting 

the witnesses’ security were established by the 

judge who presided over the first trial.

Both witnesses testified under pseudonyms, and their identities were not disclosed 
National Security Case Management (2011) 53

to defense counsel. One witness was a lawyer 

in the counterterrorism section of the Israel 

Security Agency (ISA), also known as Shin 

Bet, who was to testify as an expert on Hamas 

financing. Israeli law prohibits the disclosure 

of ISA agents’ identities. The other witness 

worked for the Israeli Defense Forces, which 

looks to ISA rules for the protection of its personnel.

The courtroom was closed to the public 

and the news media during these witnesses’ 

testimony, but the defendants and their immediate family members were permitted to attend. The witnesses entered and exited the 

courtroom through a non-public door. The 

public and the news media could listen to an 

audio feed in another courtroom. In response 

to any question under cross-examination that 

called on them to reveal classified information, the witnesses were permitted to consult 

counsel.

Chicago

In the prosecution of Muhammad Abdul Hamid Khalil Salah for helping to provide funds 

to Hamas, Salah sought testimony from two 

Israel Security Agency (ISA) agents to prove 

that his confession in Israel was obtained by 

torture and coercion. United States v. Abu 

Marzook, 412 F. Supp. 2d 913, 916 (N.D. Ill. 

2006). It was unprecedented for such officers 

to provide testimony outside of Israel.

The identities of ISA agents are kept secret 

by Israel. The judge agreed to close the hearing on Salah’s motion to suppress his confession while the ISA agents testified. United 

States v. Marzook, 435 F. Supp. 2d 708, 714 

(N.D. Ill. 2006); Abu Marzook, 412 F. Supp. 

2d 913. The government of Israel waived its 

secret classification of the agents’ testimony 

as to defense attorneys and Salah. All other 

persons in court during the testimony had security clearances.

To protect the agents’ identities, they were 

permitted to use private entrances to the 

courthouse and the courtroom. The agents and 

their Israeli attorneys were identified in court 

documents by code names. But the judge denied a request that they testify in “light disguise,” because Salah had already seen them, 

the public would not see them, and the government had presented no evidence of security 

concerns respecting the attorneys and court 

staff who would see them.

The hearing, which was conducted intermittently over the course of several weeks, 

was open for the testimony of other witnesses, 

including Israeli police officers.

For the trial, the judge again permitted the 

ISA agents to testify using pseudonyms in a 

closed courtroom. Again the judge permitted 

the witnesses to use private entrances. She 

permitted the defendants’ immediate family 

members to remain in the courtroom during 

the agents’ testimony. Because of the presence 

of the family members and the jury, the judge 

agreed to let the agents testify in light disguise, so long as the disguises did not interfere 

with the jurors’ ability to judge the witnesses’ 

credibility. But the agents ultimately decided 

to testify without disguise, because of the limitations on who would be in the courtroom 

to see them. The judge decided that the rest of 

the trial would be public.

The closed portion of the trial was kept as 

open as possible. The court established a live 

video and audio feed to another courtroom 

where spectators could listen to the closed 

session and see those in the courtroom, except 

for the witnesses. To disguise from the jury 

that the courtroom was closed, the jurors were 

told that the camera was a precaution in case 

of an overflow crowd, and the witnesses used 

the private entrance before the jury was 

brought in.

Toledo

A prosecution of Americans for conspiracy to 

fight against U.S. forces in Iraq was based, in 

part, on evidence from a government informant, called “the Trainer” in the indictment, 

who was hired to see who in the Toledo-area 

Muslim community would respond positively 

to professed approval of overseas jihad. The 

identity of the witness was initially a secret, 

but newspapers revealed his name, so the 

judge issued an order forbidding public dissemination of his image or identity.

Foreign Evidence

Foreign witnesses are beyond the court’s subpoena power. The witnesses may 

consent to travel to the United States to offer testimony, which may require per-
54 National Security Case Management (2011)

mission from their government if they are government officers. A condition of 

this travel may be security measures to protect the witness’s identity.

Testimony might also be taken remotely by video deposition. Typically the 

witness is abroad and the defendant is local and an audiovisual link is established 

to provide for adequate confrontation. Lawyers for each side are typically at both 

locations, and a communication link is established so that the defendant can confer with defense counsel at both locations. The judge might be either at the home 

court or at the foreign location.

CASE NOTES

Millennium Bomber

In the prosecution of Ahmed Ressam, who 

planned to bomb the Los Angeles International Airport at the turn of the millennium, the 

government sought testimony of witnesses in 

Canada, beyond the court’s subpoena power, 

who were unwilling to travel to the United 

States to offer testimony. By stipulation of the 

parties, the judge traveled to Canada to preside over video depositions in both Montreal 

and Vancouver to obtain the testimony. A Canadian court official attended to rule on potential issues of Canadian law. Ressam participated by videoconference from his jail cell 

with the assistance of an Arabic interpreter.

On one occasion, after the American judge 

had traveled to Canada for the deposition, a 

Canadian judge ruled, at a proceeding from 

which the American judge was excluded, that 

the witness did not have to testify.

Some of the witnesses subsequently indicated that they might be willing to testify live 

at Ressam’s trial, but the parties agreed that 

either side could substitute deposition videotapes.

The federal defender’s office represented 

Ressam, and the office agreed to accept service on his behalf of three seizure notices 

from the Royal Canadian Mounted Police. 

Two attorneys and an investigator traveled to 

Montreal to investigate the seizures, and they 

obtained from the Canadian court copies of 

documents in the related files. Apparently, the 

documents were disclosed to the attorneys in 

error and were taken back at the Montreal airport. The U.S. prosecution moved for an order 

prohibiting the attorneys from discussing the 

documents with their client. The district judge 

told the attorneys that they could only use the 

information they obtained from the Canadian 

files as a last resort, and they could not disclose to their client the origin of the information.

Guantánamo Bay

Guantánamo Bay detainees who wished to testify at their habeas hearings had to do so by 

secure video link, because the government 

was unwilling to transport them to court. A 

habeas attorney and an interpreter, if necessary, were in Guantánamo Bay. Another habeas attorney was in the courtroom with the 

judge and the government’s attorney, possibly 

with additional interpreters.

A Plot to Kill President Bush

Ahmed Omar Abu Ali, an American citizen 

convicted of terrorism conspiracy and conspiracy to kill the President, was originally 

arrested in Saudi Arabia by the counterterrorism Mabahith in an investigation of a 2003 

bombing in Riyadh. United States v. Abu Ali, 

528 F.3d 210, 221, 223–24, 226, 238 (4th Cir. 

2008); United States v. Abu Ali, 395 F. Supp. 

2d 338, 341, 344, 367, 384 (E.D. Va. 2005).

Because the identities of Mabahith officers are 

secret, the Saudi government would not permit them to come to the United States to testify. Instead, they testified pseudonymously by 

video deposition conducted in Saudi Arabia. 

The district judge sent to Saudi Arabia two 

prosecutors, two defense attorneys, a camera 

operator, and an interpreter. (If the judge had 

it to do over again, he would have sent at least 

one relief interpreter.) A live video feed was 

established between Saudi Arabia and the U.S. 

courtroom, in which were the judge, additional counsel for both sides, and the court reporter. The video image was constructed as a split 

screen with the defendant on one side and the 

witness on the other, so that the defendant 

could see the witness and the witness could 

see the defendant. The defendant could com-
National Security Case Management (2011) 55

municate with his attorneys in Saudi Arabia 

via cell phone during breaks or on request.

Challenges posed by this remote video deposition included the time-zone difference, the 

unreliable availability of a secure connection, 

and Saudi Arabian heat that sometimes caused 

technical difficulties.

Prosecution of a Charity

In the prosecution of the Holy Land Foundation and its principals for providing funds to 

Hamas, two Israeli witnesses testified under 

cover: one witness was a lawyer in the counterterrorism section of Shin Bet, the Israel Security Agency; the other witness worked for 

the Israeli Defense Forces.

Chicago

In the prosecution of Muhammad Abdul Hamid Khalil Salah for helping to provide funds 

to Hamas, Salah sought testimony from two 

Israel Security Agency (ISA) agents to prove 

that his confession in Israel was obtained by 

torture and coercion. United States v. Abu 

Marzook, 412 F. Supp. 2d 913, 916 (N.D. Ill. 

2006). It was unprecedented for such officers 

to provide testimony outside of Israel. Israel 

permitted the witnesses to travel to the United 

States to provide testimony, and the court applied security measures to protect the secrecy 

of their identities.

Salah also sought to discover Israeli police 

documents to support his claim that his confession while in custody in Israel was obtained 

by torture and coercion. The judge suggested 

that he follow rogatory-letter procedures, but 

Salah ultimately relied on testimony from 

Israeli police officers.

Examination of High-Security Detainees

Sometimes national security defendants seek testimony from persons who are in 

custody for national security reasons. The government is frequently reluctant to 

permit examination of such detainees, but some examination may be necessary to 

afford the defendant an adequate defense. Solutions to these competing interests 

have sometimes involved not direct examination but examination through interrogators.

CASE NOTES

American Taliban

In the prosecution of John Walker Lindh, who 

became known as the American Taliban, defense counsel wanted to interview persons detained at Guantánamo Bay. The district judge 

denied face-to-face access to the detainees, 

but the judge established a procedure allowing 

counsel to submit questions to “firewall” government attorneys who passed them on to the 

detainees.

Firewall attorneys included attorneys from 

the Department of Justice and the Department 

of Defense “who are separate and independent 

from the attorneys who represent the government” in the case, including two assistant U.S. 

attorneys from another district.

Defense counsel submitted questions for 

each detainee to the firewall attorneys. The 

firewall attorneys could object to any questions, and the court would resolve any objections on sealed noticed filings. Approved 

questions were submitted to interrogators who 

interwove the questions into the interrogations. Firewall attorneys prepared written 

summaries, and defense counsel could submit 

follow-up questions. Soon thereafter, the firewall attorneys submitted to defense counsel 

video recordings of the interviews.

The judge monitored the procedure to ensure that it protected Lindh’s rights to a defense.

Senior Government Officers

In national security cases, attorneys sometimes seek evidence from national security policy makers. Judges are cautious about allowing these cases to interfere 
56 National Security Case Management (2011)

with the important work of senior government officers. Judges will allow such interference, however, if justice so requires.

CASE NOTES

First Prosecution for 1998 Embassy 

Bombings

In the prosecution for the 1998 bombing of 

American embassies in Kenya and Tanzania, 

Mohamed Rashed Daoud al-’Owhali’s attorneys decided that testimony from Secretary 

of State Madeleine Albright about the impact 

of U.S. sanctions on Iraqi citizens might be 

helpful during the penalty phase of the trial. 

The district judge initially agreed to sign the 

subpoena, but on the government’s motion he 

quashed it. Al-’Owhali presented at trial as a 

substitute for her live testimony a 60 Minutes 

interview with Secretary Albright. Al-

’Owhali also presented similar evidence 

through a willing witness, former Attorney 

General Ramsey Clark.

Detroit

In the first post-September 11, 2001, prosecution for terrorism, the judge issued “a public and formal judicial admonishment of the 

Attorney General.” United States v. Koubriti, 

305 F. Supp. 2d 723, 726 (E.D. Mich. 2003); 

see id. at 763–65. Eight days after the judge 

issued a stipulated gag order forbidding public comments about the case that would have 

a reasonable likelihood of interfering with a 

fair trial, the Attorney General incorrectly 

stated at a press conference that the defendants were “suspected of having knowledge 

of the September 11th attacks.” Id. at 725, 

728–30, 733. Also, during the trial, the Attorney General commented favorably at a 

press conference on the credibility of a cooperating codefendant’s testimony. The stipulated admonishment avoided the Attorney 

General’s having to testify at a contempt 

hearing.

Guantánamo Bay

To resolve a motion to enjoin a Guantánamo 

Bay detainee’s transfer to Algeria, where he 

feared he would be tortured or killed, the district court ordered testimony from the special 

envoy for the closure of the Guantánamo Bay 

detention facility, who had the rank of ambassador, because the court determined that 

the ambassador’s declaration opposing the 

motion lacked specificity. The government 

refused to provide the testimony, the district 

court enjoined the transfer, and the court of 

appeals dissolved the injunction.

Giving State Secrets to Lobbyists

In a sting prosecution of lobbyists for sharing 

classified information, the defendants requested subpoenas for 20 current and former 

high-ranking government officials, including 

Secretary of State Condolezza Rice, because 

of her former position as National Security 

Advisor. United States v. Rosen, 520 F. Supp. 

2d 802, 804, 806–07 (E.D. Va. 2007). The 

judge sustained the government’s objection 

as to five witnesses, but overruled its objection as to the following: Secretary Rice; current National Security Advisor Stephen Hadley, who was her deputy; Paul Wolfowitz and 

Richard Armitage, each formerly Deputy 

Secretary of State; and seven others. Recognizing that the requested testimony would be 

more credible and probative than alternatives, 

the judge observed that “nothing in the Sixth 

Amendment right to compulsory process requires, nor should it require, an accused to 

refrain from calling government officials as 

witnesses until he has exhausted possible 

nongovernmental witnesses to prove a fact.”

Id. at 811.

Pro Se Issues

A defendant’s exercising his or her right to pro se representation is usually a substantial complication.

The first line of defense against this complication is prevention. Judges will 

sometimes remedy bad fits between appointed counsel and defendants.
National Security Case Management (2011) 57

A defendant in a national security case may wish to use court proceedings to 

make a public statement. Judges often set limits with defendants so that they do 

not have both all the benefits of appointed counsel and opportunities to use court 

proceedings for personal proclamations. Such limits are usually set delicately. For 

example, a defendant who wishes to personally make an opening statement may 

be required to proceed through the trial pro se as a consequence.

Courts frequently appoint standby counsel for pro se defendants, even against 

the defendants’ wishes. Courts may withdraw the pro se privilege if it is abused or 

if the defendant’s exercise of the privilege becomes too disruptive.

If classified information is at issue in the case, the court may have to appoint 

counsel to handle classified issues, because the government may choose not to

give the defendant access to classified information.

CASE NOTES

First World Trade Center Bombing

The four defendants convicted in 1994 of 

bombing the World Trade Center in 1993 

dismissed their attorneys after they were convicted by the jury. United States v. Salameh, 

856 F. Supp. 781, 782 (S.D.N.Y. 1994). They 

appeared at sentencing pro se. United States v. 

Salameh, 152 F.3d 88, 161 (1998). In 1998, 

the court of appeals vacated their sentences 

because the record did not reflect a knowing, 

intelligent, and voluntary waiver of their 

rights to counsel. In 1999, the defendants were 

resentenced, and those sentences were affirmed in 2001. United States v. Salameh, 261 

F.3d 271 (2d Cir. 2001).

Plot to Bomb U.S. Airplanes in 

Southeast Asia

Ramzi Ahmed Yousef was a defendant in the 

prosecution for the 1993 bombing of the 

World Trade Center, but at the time of the 

1993–1994 trial, Yousef was a fugitive. Salameh, 152 F.3d at 108. In 1995, because of an 

accidental home fire, he was discovered mixing bomb chemicals in Manila, Philippines,

and this discovery led to a prosecution for a 

plot to blow up American air carriers’ planes 

in southeast Asian routes. United States v. 

Yousef, 327 F.3d 56, 79–81 (2d Cir. 2003).

Yousef initially eluded arrest, but he was apprehended the following month in Islamabad, 

Pakistan. At his trial for the Asian bomb plot, 

he asked to address the jury during opening 

arguments. The district judge said that if he 

did that, he would have to represent himself 

throughout the trial, and Yousef agreed to do 

that. He was convicted. At his later trial for 

the World Trade Center bombing, he allowed 

a lawyer to represent him. He was convicted 

again.

Twentieth Hijacker

At a hearing on conditions of confinement, 

four months after his indictment, Zacarias 

Moussaoui announced that he would like to 

represent himself, possibly with the assistance 

of a Muslim attorney, because his assigned 

attorneys did not understand Muslims. United 

States v. Moussaoui, 591 F.3d 263, 269–70 

(4th Cir. 2010); United States v. Moussaoui, 

333 F.3d 509, 512–13 (4th Cir. 2003).

A court-appointed psychiatrist determined 

that Moussaoui was a fanatic, but not mentally 

incompetent to stand trial or waive his right to 

counsel. The judge granted Moussaoui’s motion to represent himself, keeping appointed 

counsel as standbys.

Nineteen months later, the judge revoked 

Moussaoui’s right to proceed pro se, because 

of frequent inappropriate filings.

Once he began to proceed pro se, Moussaoui began to file with the court handwritten 

documents that the court regarded as motions. 

The district judge observed, “The defendant’s 

pleadings have been replete with irrelevant, 

inflammatory and insulting rhetoric, which 

would not be tolerated from an attorney practicing in this court.” Pro Se Filings Sealing 

Order at 3, United States v. Moussaoui, No. 

1:01-cr-455 (E.D. Va. Aug. 29, 2002), available at 2002 WL 1990900. The government 

also became concerned that the filings might 

include coded messages to confederates. One

remedy was to seal Moussaoui’s filings, but 
58 National Security Case Management (2011)

the news media were vigilant in advocating 

for a minimum of sealing. In general, the filings were initially sealed and then unsealed or 

redacted after a review by the government and 

the court.

Atlanta

Two young men were prosecuted in Atlanta 

for preparing for violent jihad by, among other 

things, making casing videos of strategic 

landmarks. As trial approached, each of the 

defendants expressed an interest in representing himself. The government decided to 

try the two defendants separately. Syed Haris 

Ahmed opted for a bench trial, but accepted 

representation by counsel. Ehsanul Islam Sadequee announced on the first day of jury selection that he would represent himself. The 

judge appointed his attorneys as standby 

counsel. Sadequee cross-examined the government’s witnesses but did not call any witnesses himself. For his defense, he offered only his own testimony and closing argument. 

Both defendants were convicted.
The Federal Judicial Center

Board

The Chief Justice of the United States, Chair

Judge Susan H. Black, U.S. Court of Appeals for the Eleventh Circuit

Magistrate Judge John Michael Facciola, U.S. District Court for the District of Columbia

Judge James B. Haines, Jr., U.S. Bankruptcy Court for the District Maine

Judge James F. Holderman, Jr., U.S. District Court for the Northern District of Illinois

Judge Edward C. Prado, U.S. Court of Appeals for the Fifth Circuit

Judge Loretta A. Preska, U.S. District Court for the Southern District of New York

Judge Kathryn H. Vratil, U.S. District Court for the District of Kansas

Judge Thomas F. Hogan, Director of the Administrative Office of the U.S. Courts

Director

Judge Jeremy D. Fogel

Deputy Director

John S. Cooke

About the Federal Judicial Center

The Federal Judicial Center is the research and education agency of the federal judicial 

system. It was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the recommendation of the Judicial Conference of the United States.

By statute, the Chief Justice of the United States chairs the Center’s Board, which also 

includes the director of the Administrative Office of the U.S. Courts and seven judges 

elected by the Judicial Conference.

The organization of the Center reflects its primary statutory mandates. The Education 

Division plans and produces education and training programs for judges and court staff, 

including satellite broadcasts, video programs, publications, curriculum packages for incourt training, and Web-based programs and resources. The Research Division examines 

and evaluates current and alternative federal court practices and policies. This research 

assists Judicial Conference committees, who request most Center research, in developing 

policy recommendations. The Center’s research also contributes substantially to its educational programs. The two divisions work closely with two units of the Director’s Office—the Systems Innovation & Development Office and Communications Policy & Design Office—in using print, broadcast, and online media to deliver education and training 

and to disseminate the results of Center research. The Federal Judicial History Office 

helps courts and others study and preserve federal judicial history. The International 

Judicial Relations Office provides information to judicial and legal officials from foreign 

countries and assesses how to inform federal judicial personnel of developments in international law and other court systems that may affect their work.