National Security Case Studies

Special Case-Management Challenges

Robert Timothy Reagan

Federal Judicial Center

November 14, 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

Table of Contents

Table of Challenges........................................................................................................... ix

Table of Judges ................................................................................................................. xi

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

First World Trade Center Bombing

United States v. Salameh (Kevin Thomas Duffy, S.D.N.Y.) and United States v. 

Abdel Rahman (Michael B. Mukasey, S.D.N.Y.) ............................................................... 2

Challenge: Court Security ......................................................................................... 19

Challenge: Jury Security .......................................................................................... 19

Challenge: Classified Evidence ................................................................................ 20

Burma

Horn v. Huddle (Royce C. Lamberth, D.D.C.) ................................................................ 21

Challenge: Classified Evidence ................................................................................ 23

Challenge: Classified Arguments ............................................................................. 24

Kenya and Tanzania

United States v. El-Hage (Leonard B. Sand, Kevin Thomas Duffy, and Lewis A. 

Kaplan, S.D.N.Y.) ............................................................................................................ 25

Challenge: Attorney Client Contacts ....................................................................... 39

Challenge: Mental Health During Detention ............................................................ 40

Challenge: Jury Security .......................................................................................... 42

Challenge: Court Security ........................................................................................ 42

Challenge: Witness Security .................................................................................... 43

Challenge: Religious Accommodation ..................................................................... 44

Challenge: Classified Evidence ................................................................................ 44

Challenge: Classified Arguments ............................................................................. 47

Challenge: Classified Orders and Opinions ............................................................. 47

Challenge: Subpoenaing a Cabinet Officer .............................................................. 48

Millennium Bomber

United States v. Ressam (John C. Coughenour, W.D. Wash.) and United States v. 

Haouari (John F. Keenan, S.D.N.Y.) ............................................................................... 49

Challenge: Classified Evidence ................................................................................ 58

Challenge: Examination of Foreign Witnesses ........................................................ 58

Challenge: Court Security ........................................................................................ 59

Challenge: Jury Security ........................................................................................... 59

Challenge: Witness Security .................................................................................... 59

Would-Be Spy

United States v. Regan (Gerald Bruce Lee, E.D. Va.) ..................................................... 61

Challenge: Classified Evidence ................................................................................ 62

Detroit

United States v. Koubriti (Gerald E. Rosen, E.D. Mich.) ................................................ 65

Challenge: Jury Security .......................................................................................... 70
iv

Challenge: Sanctioning a Cabinet Officer ................................................................ 70

Challenge: Classified Evidence ................................................................................ 72

Twentieth Hijacker

United States v. Moussaoui (Leonie M. Brinkema, E.D. Va.) ......................................... 73

Challenge: Attorney Appointment ........................................................................... 83

Challenge: Court Security ........................................................................................ 83

Challenge: Jury Security .......................................................................................... 84

Challenge: Classified Evidence ................................................................................ 84

Challenge: Classified Arguments ............................................................................. 86

Challenge: Closed Proceedings ................................................................................ 89

Challenge: Classified Opinion .................................................................................. 89

Challenge: Terrorist Communications ..................................................................... 90

American Taliban

United States v. Lindh (T.S. Ellis III, E.D. Va.) .............................................................. 92

Challenge: Protected National Security Information ............................................... 94

Challenge: Classified Evidence ................................................................................ 96

Challenge: Interviewing Guantánamo Bay Detainees .............................................. 96

Challenge: Witness Security .................................................................................... 97

September 11 Damages

In re Terrorist Attacks on September 11, 2001 (Richard Conway Casey and 

George B. Daniels, S.D.N.Y.) and In re September 11 Litigation and Related 

Actions (Alvin K. Hellerstein, S.D.N.Y.) .......................................................................... 98

Challenge: Service of Process on International Terrorists ..................................... 114

Challenge: Classified Evidence .............................................................................. 114

Challenge: Controlled Unclassified Information .................................................... 115

Challenge: Witness Security .................................................................................. 117

Guantánamo Bay

In re Guantanamo Bay Detainee Litigation (Thomas F. Hogan, D.D.C.) and 

Related Actions (Louis F. Oberdorfer, Joyce Hens Green, Royce C. Lamberth, 

Paul L. Friedman, Gladys Kessler, Emmet G. Sullivan, Ricardo M. Urbina, 

James Robertson, Colleen Kollar-Kotelly, Henry H. Kennedy, Jr., Richard W. 

Roberts, Ellen Segal Huvelle, Reggie B. Walton, John D. Bates, Richard J. Leon, 

Rosemary M. Collyer, and Alan Kay, D.D.C.) .............................................................. 118

Challenge: Attorney Client Contacts ..................................................................... 177

Challenge: Classified Evidence .............................................................................. 187

Challenge: Protected Information .......................................................................... 194

Challenge: Classified Arguments ........................................................................... 196

Challenge: Closed Proceedings and Remote Participation .................................... 198

Challenge: Classified Orders and Opinions ........................................................... 202

Challenge: Mental and Physical Health During Detention .................................... 207

Challenge: Religious Accommodation ................................................................... 211

Challenge: Ordering Testimony from an Ambassador ........................................... 211
v

Dirty Bomber

Padilla v. Rumsfeld (Michael B. Mukasey, S.D.N.Y.), Padilla v. Hanft and 

Padilla v. Rumsfeld (Henry F. Floyd, D.S.C.), and United States v. Hassoun 

(Marcia G. Cooke, S.D. Fla.) ........................................................................................ 213

Challenge: Attorney Client Contacts ..................................................................... 221

Challenge: Mental Health During Detention .......................................................... 222

Challenge: Classified Arguments ........................................................................... 223

Challenge: Witness Security .................................................................................. 223

Challenge: Court Security ...................................................................................... 224

Challenge: Jury Security ........................................................................................ 224

Challenge: Classified Evidence .............................................................................. 225

Challenge: FISA Evidence ..................................................................................... 226

Lackawanna

United States v. Goba (William M. Skretny and H. Kenneth Schroeder, Jr., 

W.D.N.Y.) ...................................................................................................................... 227

Challenge: Classified Evidence .............................................................................. 232

Challenge: Court Security ...................................................................................... 232

Challenge: Religious Accommodation ................................................................... 232

A Plot to Kill President Bush

United States v. Abu Ali (Gerald Bruce Lee, E.D. Va.) ................................................. 233

Challenge: Examination of Foreign Witnesses and Witness Security ................... 235

Challenge: Attorney Client Contacts ..................................................................... 236

Challenge: Classified Evidence .............................................................................. 236

Challenge: Classified Arguments ........................................................................... 238

Paintball

United States v. Royer and United States v. Al-Timimi (Leonie M. Brinkema, E.D. 

Va.), United States v. Chandia (Claude M. Hilton, E.D. Va.), and United States v. 

Benkahla (James C. Cacheris, E.D. Va.) ...................................................................... 240

Challenge: Classified Evidence .............................................................................. 247

Challenge: Closed Proceedings .............................................................................. 248

Challenge: Classified Arguments ........................................................................... 249

Challenge: Attorney Client Contacts ..................................................................... 249

Challenge: Religious Accommodation ................................................................... 249

Minneapolis

United States v. Warsame (John R. Tunheim, D. Minn.) ............................................... 250

Challenge: Mental Health During Detention .......................................................... 252

Challenge: Attorney Client Contacts ......................................................................252

Challenge: Classified Evidence ...............................................................................253

Challenge: FISA Evidence ..................................................................................... 254

Mistaken Rendition

El-Masri v. Tenet (T.S. Ellis III, E.D. Va.) .................................................................... 255

Challenge: Classified Arguments ........................................................................... 257
vi

Detainee Documents

ACLU v. Department of Defense (Alvin K. Hellerstein, S.D.N.Y.) ................................ 259

Challenge: Classified Evidence .............................................................................. 262

Prosecution of a Charity

United States v. Holy Land Foundation (A. Joe Fish and Jorge A. Solis,

N.D. Tex.) ...................................................................................................................... 263

Challenge: Classified Evidence .............................................................................. 269

Challenge: FISA Evidence ......................................................................................270

Challenge: Witness Security ...................................................................................271

Challenge: Jury Security ........................................................................................ 272

Chicago

United States v. Abu Marzook (Amy St. Eve, N.D. Ill.) ................................................. 273

Challenge: Foreign Government Evidence ............................................................ 279

Challenge: Witness Security .................................................................................. 280

Challenge: Classified Evidence .............................................................................. 281

Challenge: Classified Arguments ........................................................................... 283

Challenge: Classified Opinion ................................................................................ 283

Challenge: Jury Security ........................................................................................ 283

Giving State Secrets to Lobbyists

United States v. Franklin (T.S. Ellis III, E.D. Va.) ........................................................ 284

Challenge: Classified Evidence .............................................................................. 287

Challenge: Subpoenaing a Cabinet Officer ............................................................ 289

Challenge: Classified Orders .................................................................................. 290

Challenge: Closed Proceedings .............................................................................. 290

Challenge: Classified Arguments ........................................................................... 291

Lodi

United States v. Hayat (Garland E. Burrell, Jr., E.D. Cal.) ......................................... 292

Challenge: Classified Evidence .............................................................................. 296

Warrantless Wiretaps

Hepting v. AT&T, In re NSA Telecommunication Records Litigation, and Related 

Actions (Vaughn R. Walker, N.D. Cal.); Al Haramain Islamic Foundation v. 

Bush (Garr M. King, D. Or.); ACLU v. NSA (Anna Diggs Taylor, E.D. Mich.); 

Terkel v. AT&T and Related Actions (Matthew F. Kennelly, N.D. Ill.); Center for 

Constitutional Rights v. Bush (Gerard E. Lynch, S.D.N.Y.); Electronic Privacy 

Information Center v. Department of Justice and Related Action (Henry H. 

Kennedy, Jr., D.D.C.); and Electronic Frontier Foundation v. Department of 

Justice (Thomas F. Hogan, D.D.C.) .............................................................................. 299

Challenge: Classified Evidence .............................................................................. 322

Challenge: Classified Arguments ........................................................................... 327

Challenge: Classified Opinion ................................................................................ 341

Challenge: Redacting Secrets ................................................................................. 342

Challenge: Court-Appointed National Security Expert .......................................... 343
vii

Toledo

United States v. Amawi and Related Actions (James G. Carr, N.D. Ohio) ................... 344

Challenge: Attorney Client Contacts ..................................................................... 348

Challenge: FISA Evidence ..................................................................................... 349

Challenge: Court Security ...................................................................................... 349

Challenge: Jury Security ........................................................................................ 350

Atlanta

United States v. Ahmed (Clarence Cooper, William S. Duffey, Jr., and Gerrilyn 

G. Brill, N.D. Ga.) ......................................................................................................... 351

Challenge: Closed Proceeding ................................................................................ 356

Challenge: Attorney Appointment ......................................................................... 356

Challenge: Classified Evidence .............................................................................. 357

Challenge: FISA Evidence ..................................................................................... 358

Sears Tower

United States v. Batiste (Joan A. Lenard, S.D. Fla.) ..................................................... 360

Challenge: Classified Evidence .............................................................................. 363

Challenge: Jury Security ........................................................................................ 364

Fort Dix

United States v. Shnewer (Robert B. Kugler, D.N.J.) .................................................... 365

Challenge: Classified Evidence .............................................................................. 369

Challenge: FISA Evidence ..................................................................................... 369

Challenge: Classified Opinion ................................................................................ 370

Challenge: Jury Security ........................................................................................ 370

Challenge: Court Security ...................................................................................... 370

Challenge: Attorney Appointment ......................................................................... 370

Torture Flights

Mohamed v. Jeppesen DataPlan, Inc. (James Ware, N.D. Cal.) .................................. 372

Challenge: Classified Arguments ........................................................................... 373

ix

Table of Case-Management Challenges

Attorney Issues

Attorney Appointment .............................................................................. 83, 356, 370

Attorney Client Contacts ......................................... 39, 177, 221, 236, 249, 252, 348

Senior Government Officers

Ordering Testimony from an Ambassador ............................................................. 211

Sanctioning a Cabinet Officer ................................................................................... 70

Subpoenaing a Cabinet Officer ......................................................................... 48, 289

Information Protection

Classified Arguments ................................... 24, 47, 86, 196, 223, 238, 249, 257, 283,

................................................................................................................. 291, 327, 373

Classified Evidence ............................... 20, 23, 44, 58, 62, 72, 84, 96, 114, 187, 225,

................................................................ 232, 236, 247, 253, 262, 269, 281, 287, 296,

......................................................................................................... 322, 357, 363, 369

Classified Orders and Opinions .................................. 47, 89, 202, 283, 290, 341, 370

Closed Proceedings ................................................................... 89, 198, 248, 290, 356

Controlled Unclassified Information ...................................................................... 115

Court-Appointed National Security Expert ............................................................ 343

FISA Evidence .................................................................226, 254, 270, 349, 358, 369

Interviewing Detainees ............................................................................................. 96

Protected Information ............................................................................................. 194

Protected National Security Information .................................................................. 94

Redacting Secrets .................................................................................................... 342

Remote Participation .............................................................................................. 198

Foreign Evidence

Examination of Foreign Witnesses ................................................................... 58, 235

Foreign Government Evidence ............................................................................... 279

Mental and Physical Health During Detention ........................................ 40, 207, 222, 252

Physical Security

Court Security ......................................................... 19, 42, 59, 83, 224, 232, 349, 370

Jury Security ............................................ 19, 42, 59, 70, 84, 224, 272, 283, 350, 364, 

................................................................................................................................. 370

Witness Security ................................................... 43, 59, 97, 117, 223, 235, 271, 280

Religious Accommodation ...................................................................... 44, 211, 232, 249

Terrorist Contacts

Service of Process on International Terrorists ........................................................ 114

Terrorist Communications ........................................................................................ 90

xi

Table of Judges

Batchelder, Alice M. (6th Cir.) ..................................................................................... 299

Bates, John D. (D.D.C.) ................................................................................................ 118

Brill, Gerrilyn G. (N.D. Ga.) ......................................................................................... 351

Brinkema, Leonie M. (E.D. Va.) ............................................................................. 73, 240

Burrell, Garland E., Jr. (E.D. Cal.) ................................................................................ 292

Cabranes, José A. (2d Cir.) ............................................................................................. 25

Cacheris, James C. (E.D. Va.) ....................................................................................... 240

Carr, James G. (N.D. Ohio) ........................................................................................... 344

Casey, Richard Conway (S.D.N.Y.) ................................................................................ 98

Collyer, Rosemary M. (D.D.C.) .................................................................................... 118

Cooke, Marcia G. (S.D. Fla.) ........................................................................................ 213

Cooper, Clarence (N.D. Ga.) ......................................................................................... 351

Coughenour, John C. (W.D. Wash.) ................................................................................ 49

Daniels, George B. (S.D.N.Y.) ........................................................................................ 98

Duffey, William S., Jr. (N.D. Ga.) ................................................................................ 351

Duffy, Kevin Thomas (S.D.N.Y.) ............................................................................... 2, 25

Duncan, Allyson K. (4th Cir.) ....................................................................................... 255

Ellis, T.S., III (E.D. Va.) ................................................................................. 92, 255, 284

Feinberg, Wilfred (2d Cir.) ............................................................................................. 25

Fish, A. Joe (N.D. Tex) ................................................................................................. 263

Floyd, Henry F. (D.S.C.) ............................................................................................... 213

Friedman, Paul L. (D.D.C.) ........................................................................................... 118

Gibbons, Julia Smith (6th Cir.) ..................................................................................... 299

Gilman, Ronald Lee (6th Cir.) ...................................................................................... 299

Green, Joyce Hens (D.D.C.) .......................................................................................... 118

Gregory, Roger L. (4th Cir.) ................................................................................... 73, 284

Hawkins, Michael Daly (9th Cir.) ................................................................................. 299

Hellerstein, Alvin (S.D.N.Y.) .................................................................................. 98, 259

Hilton, Claude M. (E.D. Va.) ........................................................................................ 240

Hogan, Thomas F. (D.D.C.) .................................................................................. 118, 299

Huvelle, Ellen Segal (D.D.C.) ....................................................................................... 118

Kaplan, Lewis A. (S.D.N.Y.) .......................................................................................... 25

Kay, Alan (D.D.C.) ....................................................................................................... 118

Keenan, John F. (S.D.N.Y.) ............................................................................................ 49

Kennedy, Henry H., Jr. (D.D.C.) ........................................................................... 118, 299
xii

Kennelly, Matthew F. (N.D. Ill.) ................................................................................... 299

Kessler, Gladys (D.D.C.) .............................................................................................. 118

King, Garr M. (D. Or.) .................................................................................................. 299

King, Robert B. (4th Cir.) ..................................................................................... 255, 284

Kollar-Kotelly, Colleen (D.D.C.) .................................................................................. 118

Kugler, Robert B. (D.N.J.) ............................................................................................ 365

Lamberth, Royce C. (D.D.C.) ................................................................................. 21, 118

Lee, Gerald Bruce (E.D. Va.) .................................................................................. 61, 233

Lenard, Joan A. (S.D. Fla.) ........................................................................................... 360

Leon, Richard J. (D.D.C.) ............................................................................................. 118

Lynch, Gerard E. (S.D.N.Y.) ......................................................................................... 299

McKeown, M. Margaret (9th Cir.) ................................................................................ 299

Motz, Diana Gribbon (4th Cir.) ..................................................................................... 233

Mukasey, Michael B. (S.D.N.Y.) .............................................................................. 2, 213

Newman, Jon O. (2d Cir.) ............................................................................................... 25

Oberdorfer, Louis F. (D.D.C.) ....................................................................................... 118

Pregerson, Harry (9th Cir.) ............................................................................................ 299

Roberts, Richard W. (D.D.C.) ....................................................................................... 118

Robertson, James (D.D.C.) ............................................................................................ 118

Rosen, Gerald E. (E.D. Mich.) ........................................................................................ 65

St. Eve, Amy (N.D. Ill.) ................................................................................................ 273

Sand, Leonard B. (S.D.N.Y.) .......................................................................................... 25

Schroeder, H. Kenneth, Jr. (W.D.N.Y.) ........................................................................ 227

Shedd, Dennis W. (4th Cir.) ............................................................................ 73, 255, 284

Skretny, William M. (W.D.N.Y.) .................................................................................. 227

Solis, Jorge A. (N.D. Tex) ............................................................................................. 263

Sullivan, Emmet G. (D.D.C.) ........................................................................................ 118

Taylor, Anna Diggs (E.D. Mich.) .................................................................................. 299

Traxler, William B., Jr. (4th Cir.) ............................................................................ 73, 233

Tunheim, John R. , (D. Minn.) ...................................................................................... 250

Urbina, Ricardo M. (D.D.C.) ........................................................................................ 118

Walker, Vaughn R. (N.D. Cal.) ..................................................................................... 299

Walton, Reggie B. (D.D.C.) .......................................................................................... 118

Ware, James. (N.D. Cal.) .............................................................................................. 372

Wilkins, William W. (4th Cir.) ....................................................................................... 73

Wilkinson, J. Harvie, III (4th Cir.) ................................................................................ 233

Williams, Karen J. (4th Cir.) ........................................................................................... 73
National Security Case Management Studies (11/14/2011) 1

Introduction

National security cases often pose unusual and challenging case-management issues for the courts. Evidence or arguments may be classified; witnesses or the jury 

may require special security measures; attorneys contacts with their clients may

be diminished; other challenges may present themselves.

The purpose of this Federal Judicial Center resource is to assemble methods

federal judges have employed to meet these challenges so that judges facing the

challenges can learn from their colleagues experiences. These case studies include background factual information about a selection

of national security cases as well as descriptions of the judges challenges and solutions. The information presented is based on a review of case files and news

media accounts and on interviews with the judges.

Classified Information Security Of icers. Crucial in courts handling of classified information are classified information security officers, who are detailed to

the courts by the Department of Justice s Litigation Security Group. Until January 

15, 2011, they were known as court security officers, which was confusing because that term is used for persons who provide courthouses with physical security.

Hyperlinks. An Acrobat copy of this document posted within the judiciary at 

FJC Online includes hyperlinks among the footnotes. Embedded in citations to

published opinions are hyperlinks to their Westlaw postings. Citations to unpublished orders and opinions often include hyperlinks to copies of the documents

available at FJC Online. Embedded in citations to other court documents are

hyperlinks to the relevant court s PACER site. Other Publications. The lessons learned from these case studies are summarized in National Security Case Management: An Annotated Guide, also available

from the Federal Judicial Center.

This publication supersedes the following:

Terrorism-Related Cases: Special Case-Management Challenges: Case

Studies (September 20, 2007)

Terrorism-Related Cases: Special Case-Management Challenges: Case

Studies (March 26, 2008)

National Security Case Studies: Special Case-Management Challenges

(February 22, 2010)
2 National Security Case Management Studies (11/14/2011)

First World Trade Center Bombing

United States v. Salameh (Kevin Thomas 

Duffy, S.D.N.Y.) and United States v. Abdel 

Rahman (Michael B. Mukasey, S.D.N.Y.)

On Friday, February 26, 1993, a bomb exploded in the parking garage of the

World Trade Center in Manhattan, killing six people and injuring more than one

thousand.1

The Bombing of the World Trade Center

On April 24, 1992, Ahmad Mohammad Ajaj moved from Houston, Texas, to Pakistan, where he attended a terrorist training camp called Camp Khaldan on the

border between Afghanistan and Pakistan.2 He learned how to make bombs, and

he met Ramzi Ahmed Yousef.3 On September 1, 1992, Ajaj and Yousef entered

the United States using false identities.4 Ajaj s passport was discovered to be a

forgery.5 He was indicted in the Eastern District of New York, where John F. Kennedy International Airport is located, and imprisoned for six months on a

guilty plea.6 Yousef was stopped for traveling on an Iraqi passport without a visa

but released on his own recognizance because the detention center was full.7

In the United States, Yousef assembled a conspiracy of terrorists.8 With the

assistance of Mahmoud Abouhalima, Yousef and Mohammad A. Salameh rented

in Jersey City, New Jersey, an apartment and a storage unit, where they made and

 1. The 9/11 Commission Report 280 (2004); id. at 71 ( The ensuing explosion opened a hole

seven stories up. ); United States v. Yousef, 327 F.3d 56, 79 (2d Cir. 2003); United States v. Salameh, 152 F.3d 88, 107 08 (2d Cir. 1998); United States v. Salameh, 54 F. Supp. 2d 236, 245

(S.D.N.Y. 1999); United States v. El-Gabrowny, 876 F. Supp. 495, 496 (S.D.N.Y. 1994); United 

States v. Salameh, 856 F. Supp. 781, 782 (S.D.N.Y. 1994); United States v. El-Gabrowny, 825 F. Supp. 38, 39 40 (S.D.N.Y. 1993); see Ralph Blumenthal, Accounts Reconstruct Planning of Trade 

Center Explosion, N.Y. Times, May 26, 1993, at B1; Robert D. McFadden, Blast Hits Trade Center, Bomb Suspected, N.Y. Times, Feb. 27, 1993, at 11; Christopher S. Wren, U.S. Jury Convicts 3 

in a Conspiracy to Bomb Airliners, N.Y. Times, Sept. 6, 1996, at 1.

2. Yousef, 327 F.3d at 78; Salameh, 152 F.3d at 107; Salameh, 54 F. Supp. 2d at 246, 290.

3. The 9/11 Commission Report 73 (2004); Yousef, 327 F.3d at 78; Salameh, 152 F.3d at 107.

4. The 9/11 Commission Report 72 (2004); Yousef, 327 F.3d at 78, 135; Salameh, 152 F.3d at

107; Salameh, 54 F. Supp. 2d at 246, 291; see Blumenthal, supra note 1; Mary B.W. Tabor, Man 

Held in Bombing but Is Not Charged, Lawyer Says, N.Y. Times, May 6, 1993, at B3; Wren, supra 

note 1. 5. Salameh, 152 F.3d at 107; Salameh, 54 F. Supp. 2d at 246, 294; see Blumenthal, supra 

note 1. 6. Salameh, 152 F.3d at 107, 109, 118 20 (noting an Oct. 6, 1992, guilty plea); Salameh, 54 F. 

Supp. 2d at 246, 294; Docket Sheet, United States v. Ajaj, No. 1:92-cr-993 (E.D.N.Y. Sept. 14, 1992) (noting judgment on Jan. 13, 1993); see Blumenthal, supra note 1; Tabor, supra note 4. 7. Yousef, 327 F.3d at 78 n.2; Salameh, 152 F.3d at 107; see Richard Bernstein, Inspector Testifies She Urged No Asylum for Blast Suspect, N.Y. Times, Nov. 16, 1993, at B3; Blumenthal, supra note 1. 8. Yousef, 327 F.3d at 78; Salameh, 152 F.3d at 107; Salameh, 54 F. Supp. 2d at 246.
National Security Case Management Studies (11/14/2011) 3

stored explosive materials.9 Nidal Ayyad, a chemical engineer, acquired the explosives.10

On February 23, 1993, Salameh rented a Ryder van, which the conspirators

loaded with explosive materials.11 Three days later, Yousef and Eyad Ismoil

drove the van to the World Trade Center, where they exploded the bomb by timer

at 12:18 p.m.12

Ayyad anonymously contacted the New York Daily News by telephone and

the New York Times by mail to take responsibility for the bomb as retaliation for

the United States support of Israel.13 His DNA was found on the New York

Times envelope, and a draft of the letter to the Times was found on his computer.

14

Investigators discovered the van s vehicle identification number in the bomb s

debris.15 Salameh was arrested when he returned to the Ryder rental office on

March 4 to recover a $400 rental deposit on the destroyed van, which he had reported stolen.16

 9. Yousef, 327 F.3d at 78; Salameh, 152 F.3d at 107 08; Salameh, 54 F. Supp. 2d at 246 47; 

see Richard Bernstein, 4 Are Convicted in Bombing at the World Trade Center That Killed 6, Stunned U.S., N.Y. Times, Mar. 5, 1994, at 11; Blumenthal, supra note 1; Robert D. McFadden, Agents Step Up Search for Bombing Suspect s Links, N.Y. Times, Mar. 6, 1993, at 11; Alison Mitchell, Chemical Engineer Is Held in the Trade Center Blast, N.Y. Times, Mar. 11, 1993, at A1

[hereinafter Engineer Held]; Alison Mitchell, U.S. Widens Charges in Trade Center Bombing, N.Y. Times, May 27, 1993, at B4 [hereinafter U.S. Widens Charges].

10. The 9/11 Commission Report 72 (2004); Salameh, 152 F.3d at 107 08; Salameh, 54 F. Supp. 2d at 247; see Bernstein, supra note 9; Mitchell, Engineer Held, supra note 9. 11. Salameh, 152 F.3d at 108; Salameh, 54 F. Supp. 2d at 246 47; United States v. El- Gabrowny, 876 F. Supp. 495, 497 (S.D.N.Y. 1994); United States v. El-Gabrowny, 825 F. Supp. 38, 40 (S.D.N.Y. 1993); see Blumenthal, supra note 1; Ralph Blumenthal, Insistence on Refund

for a Truck Results in an Arrest in Explosion, N.Y. Times, Mar. 5, 1993, at A1 [hereinafter Insistence on Refund]; Robert D. McFadden, Jersey City Man Is Charged in Bombing of Trade Center After Rented Van Is Traced, N.Y. Times, Mar. 5, 1993, at A1.

12. Yousef, 327 F.3d at 79, 135; Salameh, 152 F.3d at 108; see Bernstein, supra note 9; Blumenthal, supra note 1; Wren, supra note 1; see also Benjamin Weiser, Man Accused of Delivering 

a Bomb Said He Believed It Was Soap, N.Y. Times, Oct. 16, 1997, at B3 (reporting testimony that

Ismoil thought the van carried soap).

13. Salameh, 152 F.3d at 108; Salameh, 54 F. Supp. 2d at 247; see Bernstein, supra note 9; Richard Bernstein, Telephone Threat After Blast Is Played at World Trade Center Bombing Trial, N.Y. Times, Dec. 10, 1993, at B3; Blumenthal, supra note 1; Alison Mitchell, Letter Explained

Motive in Bombing, Officials Now Say, N.Y. Times, Mar. 28, 1993, at 11.

14. Salameh, 152 F.3d at 129; Salameh, 54 F. Supp. 2d at 247; see Blumenthal, supra note 1; 

Mary B.W. Tabor, Questions Linger in Explosion Case, N.Y. Times, Sept. 14, 1993, at B1.

15. Yousef, 327 F.3d at 79, 135; El-Gabrowny, 876 F. Supp. at 497; El-Gabrowny, 825 F. Supp. at 40; see Blumenthal, supra note 1; Blumenthal, Insistence on Refund, supra note 11; 

McFadden, supra note 11. 16. The 9/11 Commission Report 72 (2004); Yousef, 327 F.3d at 79, 135; Salameh, 152 F.3d at 

108; Salameh, 54 F. Supp. 2d at 247; see Bernstein, supra note 9; Blumenthal, supra note 1; Blumenthal, Insistence on Refund, supra note 11; McFadden, supra note 9; McFadden, supra note 11. It was reported that Salameh had also returned to the rental office the day after the rental to replace a missing rearview mirror, creating a mystery of why someone who intended to use a
4 National Security Case Management Studies (11/14/2011)

Abouhalima fled to Egypt after the explosion, and he was arrested by Egyptian authorities on March 13.17 He was returned to the United States on March

25.18

Yousef and Abdul Rahman Yasin, another conspirator, also fled the country.19

It was not until February 7, 1995, that Yousef was captured in Pakistan.20 Ismoil 

was apprehended in Jordan on July 30, 1995.21 Yasin, who was questioned but

released by the FBI after the bombing, remains a fugitive.22

Ajaj was released from his six-month sentence on March 1, 1993.23 On March

9, he was rearrested on an immigration detainer.24

Salameh and Ayyad were indicted in the Southern District of New York on

March 17, 1993.25 The district court assigned the case to Judge Kevin Thomas

Duffy.26 On March 31, a superseding indictment added Abouhalima and Yousef

 rented van for a bombing would let himself be seen repeatedly by witnesses. McFadden, supra

note 9. 17. Salameh, 54 F. Supp. 2d at 247, 269 70; see Alison Mitchell, Bombing Suspect Flown to

U.S. After 10 Days in Egypt s Custody, N.Y. Times, Mar. 25, 1993, at A1.

18. See Mitchell, supra note 17. 19. The 9/11 Commission Report 72 (2004); Salameh, 152 F.3d at 108, 135; see Tabor, supra 

note 14 (reporting the government s offering $2 million rewards each for Yousef and Yasin);

Wren, supra note 1. 20. Salameh, 152 F.3d at 108 n.2, 135; United States v. Yousef, 925 F. Supp. 1063, 1065

(S.D.N.Y. 1996); see David Johnston, Fugitive in Trade Center Blast Is Caught and Returned to

U.S., N.Y. Times, Feb. 9, 1995, at 1; James C. McKinley, Jr., Suspected Bombing Leader Indicted

on Broader Charges, N.Y. Times, Apr. 14, 1995, at 3; Wren, supra note 1 (reporting that, Until

his arrest in Pakistan in 1995, the United States considered him the most wanted fugitive alive, with a $2 million reward for his capture. ). 21. Yousef, 327 F.3d at 79, 135; United States v. Yousef, No. 1:93-cr-180, 1999 WL 714103, at *1 (S.D.N.Y. Sept. 13, 1999); see Docket Sheet, United States v. Salameh, No. 1:93-cr-180 

(S.D.N.Y. Mar. 17, 1993) [hereinafter S.D.N.Y. Salameh Docket Sheet] (noting the filing on Aug. 3, 1995, of a seventh superseding indictment against Yousef, Yasin, and Ismoil); see also James 

C. McKinley, Jr., Suspect Is Said to Be Longtime Friend of Bombing Mastermind, N.Y. Times, Aug. 4, 1995, at 1.

22. Salameh, 152 F.3d at 108 n.2; Salameh, 54 F. Supp. 2d at 254; see Alison Mitchell, U.S. 

Informer Is New Suspect in Bomb Plot, N.Y. Times, Aug. 5, 1993, at B1; Robert F. Worth, Second 

Attack on Iraq Prison in 48 Hours Wounds 5 Iraqis, N.Y. Times, Apr. 5, 2005, at A9.

Although a fugitive with a $25 million reward offered for his capture, he was interviewed by

Lesley Stahl for CBS News 60 Minutes on May 23, 2002. See Tina Kelley, Suspect in 1993

Bombing Says Trade Center Wasn t First Target, N.Y. Times, June 1, 2002, at A10 (reporting that 

Yasin originally wanted to blow up Jewish neighborhoods in Brooklyn, but Yousef thought destroying the World Trade Center would be more effective).

23. Salameh, 152 F.3d at 108; see Tabor, supra note 4. 24. Salameh, 152 F.3d at 108; see Tabor, supra note 4. 25. S.D.N.Y. Salameh Docket Sheet, supra note 21; see Ralph Blumenthal, Suspect in Blast 

Believed to Be in Pakistan, N.Y. Times, Mar. 18, 1993, at B4; see also Mitchell, Engineer Held, supra note 9 (reporting on Ayyad s Mar. 10, 1993, arrest).

26. S.D.N.Y. Salameh Docket Sheet, supra note 21; see Mary B.W. Tabor, As Trial Is Set in Explosion, Hunt Widens, N.Y. Times, Apr. 2, 1993, at B1.

Tim Reagan interviewed Meghan Silhan, Judge Duffy s law clerk, by telephone on July 23, 2007.
National Security Case Management Studies (11/14/2011) 5

as defendants.27 The next day, the court ordered the parties and their attorneys not

to discuss publicly anything related to the case.28 The court of appeals vacated this 

gag order as overbroad on April 30.29

Bilal Alkaisi turned himself in on March 24, 1993,30 and a second superseding 

indictment added him as a defendant on April 7.31 Because evidence against him

was weaker than evidence against the others, his prosecution was severed.32 On 

May 9, 1994, he pleaded guilty to an immigration violation and agreed to be deported.33 Judge Duffy sentenced him on July 13 to one year and eight months in

prison, which was four months more than the time already served.34

A third superseding indictment added Ajaj as a defendant on May 26, 1993.35

A fourth superseding indictment added the fugitive Yasin as a defendant on August 4.36 Salameh, Ayyad, Abouhalima, Ajaj, Yousef, and Yasin were named as

defendants in a fifth superseding indictment filed on September 1.37

Jury selection in the trial against Salameh, Ayyad, Abouhalima, and Ajaj began on September 14.38 The court issued 5,000 extra jury summonses to assemble

 The Southern District of New York s 2006 Milton Pollack Fellow, Philip J. Gross, also prepared a report on challenges to the district s judges in terrorism cases. Philip J. Gross, Guide to

High Security & Terrorism Cases (2006).

27. United States v. Yousef, 327 F.3d 56, 135 (2d Cir. 2003); S.D.N.Y. Salameh Docket Sheet, 

supra note 21; see Ralph Blumenthal, Missing Suspect Charged in Trade Center Bombing, N.Y. Times, Apr. 1, 1993, at B3.

28. United States v. Salameh, 992 F. 2d 445, 446 (2d Cir. 1993); see Tabor, supra note 26. 29. Salameh, 992 F. 2d 445; see United States v. Salameh, No. 1:93-cr-180, 1993 WL 364486, at *1 (S.D.N.Y. Sept. 15, 1993); see David Margolick, Ban on Press Statements in Trade Center Bombing Case Is Overturned, N.Y. Times, May 1, 1993, at 127.

30. See Blumenthal, supra note 1; Mitchell, supra note 17. 31. S.D.N.Y. Salameh Docket Sheet, supra note 21. 32. See Bernstein, supra note 9; Mitchell, supra note 22; Tabor, supra note 14; Mary B.W. Tabor, Trade Center Defendant Agrees to a Plea Bargain, N.Y. Times, May 10, 1994, at B3

[hereinafter Plea Bargain].

A sixth superseding information against Alkaisi was filed on May 9, 1994. S.D.N.Y. Salameh 

Docket Sheet, supra note 21. 33. S.D.N.Y. Salameh Docket Sheet, supra note 21; see Tabor, Plea Bargain, supra note 32. 34. S.D.N.Y. Salameh Docket Sheet, supra note 21; see Ronald Sullivan, Bombing Figure

Gets 20 Months for an Immigration Violation, N.Y. Times, July 14, 1994.

Alkaisi was released from prison on November 7, 1994. http://www.bop.gov (reg. no. 28065- 054).

35. S.D.N.Y. Salameh Docket Sheet, supra note 21; see Mitchell, U.S. Widens Charges, supra

note 9. 36. S.D.N.Y. Salameh Docket Sheet, supra note 21; see Mitchell, supra note 22. 37. United States v. Salameh, 152 F.3d 88, 108 (2d Cir. 1998); S.D.N.Y. Salameh Docket 

Sheet, supra note 21. 38. S.D.N.Y. Salameh Docket Sheet, supra note 21; see Ralph Blumenthal, Jury Selection

Starts in World Trade Center Case, N.Y. Times, Sept. 15, 1993, at B1; Tabor, supra note 14. Judge Duffy does not use jury questionnaires. United States v. Salameh, No. 1:93-cr-180, 1993 

WL 364486, at *2 (S.D.N.Y. Sept. 15, 1993) ( There 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. ); see Gross, supra note 26, at 23 24.
6 National Security Case Management Studies (11/14/2011)

a jury pool for the case.39 Opening arguments began on October 5.40 The jury began its deliberations on February 23, 1994, and convicted the defendants on

March 4.41

Between conviction and sentencing, the defendants dismissed their attorneys.

42 Salameh, Abouhalima, and Ajaj sought to hire as sentencing attorneys the

law firm representing other defendants in a related trial, which is described below.43 Judge Duffy ruled that this would present an unacceptable conflict,44

so the

four defendants appeared at sentencing pro se.45

On May 24, 1994, the court sentenced each of the four defendants to 240

years in prison.46 Judge Duffy arrived at 240 years by computing the remaining

life expectancies of the six killed victims, which summed to 180 years, and adding 60 years, which is the mandatory sentence for two counts of assault on a federal officer.47

On August 4, 1998, the court of appeals affirmed the convictions, but remanded for resentencing, holding that the defendants did not effectively waive

their rights to counsel at sentencing.48 Judge Duffy resentenced the defendants in

October 1999 to prison terms ranging from 108 years and four months to 117

years and one month.49 The terms varied according to the defendants ages, because for some of the counts, Judge Duffy used a sentencing method recently approved by the court of appeals of imposing a sentence of one month less than a

defendant s life expectancy if the sentencing guidelines suggested a life term, but

at the time of the crime the guidelines specified that life terms would be decided 

 39. See Blumenthal, supra note 38; Mary B.W. Tabor, Jury Pool to Be Expanded by 5,000 for Trade Center Trial, N.Y. Times, Sept. 3, 1993, at B1.

40. See Richard Bernstein, Hints of Confrontation in Opening Statements, N.Y. Times, Oct. 5, 1993, at B4.

41. Salameh, 152 F.3d at 108, 135; United States v. Salameh, 856 F. Supp. 781, 782 (S.D.N.Y. 

1994); S.D.N.Y. Salameh Docket Sheet, supra note 21; see Bernstein, supra note 9; Richard

Bernstein, Jurors Begin Deliberations in Blast Case, N.Y. Times, Feb. 24, 1994, at B1; Wren, supra note 1. 42. Salameh, 152 F.3d at 161; Salameh, 856 F. Supp. at 782; see Richard Bernstein, 4 Defen- dants Ask Lawyers Be Changed, N.Y. Times, Apr. 27, 1994, at B2.

43. Salameh, 856 F. Supp. at 782 (noting a desire to hire William Kunstler and Ronald Kuby, who were counsel for Siddig Ibrahim Siddig Ali and Ibrahim el-Gabrowny in a related prosecution 

before Judge Mukasey); see United States v. Rahman, 861 F. Supp. 266, 272 (S.D.N.Y. 1994); see 

also Bernstein, supra note 42; Gross, supra note 26, at 10.

44. Salameh, 856 F. Supp. 781; see Gross, supra note 26, at 10. The court of appeals denied

the defendants petition for a writ of mandamus. Docket Sheet, In re Abouhalima, No. 94-3038 

(2d Cir. Apr. 21, 1994) (noting denial of the writ on May 3, 1994); see Rahman, 861 F. Supp. at

272.

45. Salameh, 152 F.3d at 161.

46. Id. at 108; Salameh, 856 F. Supp. at 782; S.D.N.Y. Salameh Docket Sheet, supra note 21; 

see Richard Bernstein, Trade Center Bombers Get Prison Terms of 240 Years, N.Y. Times, May

25, 1994, at A1; Gross, supra note 26, at 10 11; Wren, supra note 1. 47. See Bernstein, supra note 46; Gross, supra note 26, at 11.

48. Salameh, 152 F.3d at 161; see Convictions Are Upheld in Trade Center Case, N.Y. Times, Aug. 5, 1998, at B6; Gross, supra note 26, at 11.

49. United States v. Salameh, 261 F.3d 271, 275 (2d Cir. 2001).
National Security Case Management Studies (11/14/2011) 7

by the jury, which had made no such determination in this case.50 On August 6, 2001, the court of appeals affirmed.51

On September 22, 2011, New York s court of appeals determined that the Port

Authority of New York and New Jersey had governmental immunity from civil

liability for the bombing.52

Plots to Bomb New York Landmarks

When Salameh rented the van used to bomb the World Trade Center, he used as

identification a New York driver s license with an address belonging to Ibrahim

el-Gabrowny.53 On March 4, 1993, federal agents searched el-Gabrowny s home, where they found stun guns and taped messages from el-Gabrowny s cousin, El

Sayyid Nosair, urging aggressive reactions to Jewish immigration to Israel.54

Agents found el-Gabrowny near his home, and he was belligerent when frisked.55

He was discovered to have fraudulent Nicaraguan passports for Nosair and Nosair s family.56

El-Gabrowny was indicted for assault in the Southern District of New York on 

March 17.57 The court assigned the case to Judge Michael B. Mukasey,58 who 

tried to conduct this case as much like other criminal trials as possible.59

 50. Id. (noting sentences of 1,403 months for Salameh, 1,300 months for Abouhalima, 1,405

months for Ayyad, and 1,378 months for Ajaj); S.D.N.Y. Salameh Docket Sheet, supra note 21

(same); see United States v. Tocco, 135 F.3d 116, 131 32 (2d Cir. 1998) (approving a sentencing

scheme by Judge Jack B. Weinstein of the Eastern District of New York).

51. Salameh, 261 F.3d 271; see Benjamin Weiser, Trade Center Bombing Terms, N.Y. Times, Aug. 7, 2001, at B4.

52. In re World Trade Ctr. Bombing Litig., ___ N.Y. ___, ___ N.E.2d ___, 2011 WL 4387517

(2011); see id. at ___, ___ N.E.2d at ___ (p.23 of filed opinion) ( We . . . hold that the Port Authority acted within its governmental capacity because its security operations at the WTC constituted police protection. ); see also Benjamin Weiser, Port Authority Not Liable in 93 Bombing, Court Says, N.Y. Times, Sept. 23, 2011, at A25.

53. United States v. Rahman, 189 F.3d 88, 108 (2d Cir. 1999); United States v. El-Gabrowny, 876 F. Supp. 495, 497 (S.D.N.Y. 1994); United States v. El-Gabrowny, 825 F. Supp. 38, 40

(S.D.N.Y. 1993); see Blumenthal, supra note 1. It was reported that Salameh failed four attempts to get a New Jersey driver s license using his

own address. Blumenthal, supra note 1. 54. Rahman, 189 F.3d at 105, 106, 108; United States v. El-Gabrowny, 35 F.3d 63, 64 (2d Cir. 1994); El-Gabrowny, 876 F. Supp. at 496 97; United States v. Rahman, 861 F. Supp. 266, 270

(S.D.N.Y. 1994); El-Gabrowny, 825 F. Supp. at 39 40.

55. Rahman, 189 F.3d at 108; El-Gabrowny, 35 F.3d at 64; El-Gabrowny, 876 F. Supp. at

496 98; Rahman, 861 F. Supp. at 270; El-Gabrowny, 825 F. Supp. at 39 41; see McFadden, supra note 11; Alison Mitchell, Suspect in Bombing Is Linked to Sect with a Violent Voice, N.Y. Times, Mar. 5, 1993, at A1.

56. Rahman, 189 F.3d at 108; El-Gabrowny, 35 F.3d at 64; El-Gabrowny, 876 F. Supp. at

496 97; Rahman, 861 F. Supp. at 270; United States v. Rahman, 837 F. Supp. 64, 65 (S.D.N.Y. 1993); El-Gabrowny, 825 F. Supp. at 39, 41; see Blumenthal, supra note 1; McFadden, supra note 

9. 57. El-Gabrowny, 35 F.3d at 64; Rahman, 861 F. Supp. at 270; Rahman, 837 F. Supp. at 65;

El-Gabrowny, 825 F. Supp. at 39; Docket Sheet, United States v. Abdel Rahman, No. 1:93-cr-181 

(S.D.N.Y. Mar. 17, 1993) [hereinafter S.D.N.Y. Abdel Rahman Docket Sheet] (also noting the
8 National Security Case Management Studies (11/14/2011)

Nosair was in prison on a sentence of 7 to 22 years for a state conviction on

assault and weapons charges stemming from the killing of a militant Zionist and

former member of the Israeli parliament, Rabbi Meir Kahane, at a November 5, 1990, speech Kahane made in New York City.60 There was evidence that projectiles found in the room where Kahane and others were shot came from Nosair s

gun, but he was acquitted of the murder.61

In 1991, during Nosair s state trial, an FBI informant, Emad Eldin Aly Abdou

Salem, began to befriend followers of Sheik Omar Abdel Rahman, a blind Islamic 

cleric.62 Salem met el-Gabrowny at the trial of Nosair, who was el-Gabrowny s

cousin.63

 filing of a superseding indictment against El-Gabrowny on May 19, 1993); see Blumenthal, supra

note 25. 58. S.D.N.Y. Abdel Rahman Docket Sheet, supra note 57. Judge Mukasey retired from the bench in 2006 and returned to the practice of law until President George W. Bush named him as his third Attorney General. Federal Judicial Center Biographical Directory of Federal Judges, http://www.fjc.gov/public/home.nsf/hisj; see Michael Abramowitz & Dan Eggen, Ex-Judge Is Said to Be Pick at Justice, Wash. Post, Sept. 17, 2007, at A1; Dan 

Eggen, Senate Confirms Mukasey by 53 40, N.Y. Times, Nov. 9, 2007, at A1; Joseph Goldstein, As Judge Leaves for Law Firm, His Legacy Is Remembered, N.Y. Sun, July 26, 2006, at 1; Carl

Hulse, Mukasey Wins Vote in Senate, Despite Doubts, N.Y. Times, Nov. 9, 2007, at A1; Sheryl

Gay Stolberg & Philip Shenon, Bush to Appoint Ex-Judge as Head of Justice Dept., N.Y. Times, Sept. 17, 2007, at A1.

Tim Reagan interviewed Judge Mukasey for this report at his law offices in Manhattan on June 

25, 2007.

59. Interview with Michael B. Mukasey, June 25, 2007.

60. Rahman, 189 F.3d at 105 & n.3; Rahman, 861 F. Supp. at 270; Rahman, 837 F. Supp. at 

65; see United States v. Nosair, 854 F. Supp. 251, 251 (S.D.N.Y. 1994); see also Blumenthal, supra note 1; McFadden, supra note 9; John T. McQuiston, Kahane Is Killed After Giving Talk in New York Hotel, N.Y. Times, Nov. 6, 1990, at A1; Mitchell, supra note 55; Ronald Sullivan, Judge Gives Maximum Term in Kahane Case, N.Y. Times, Jan. 30, 1992, at A1.

61. Rahman, 189 F.3d at 105 & n.3; Rahman, 861 F. Supp. at 270; see Blumenthal, supra note 

1; M.A. Farber, Gun That Was Found on Defendant Is Linked to Kahane Shooting, N.Y. Times, Dec. 5, 1991, at B3; McFadden, supra note 9; McFadden, supra note 11; Mitchell, supra note 55; 

Selwyn Raab, Jury Acquits Defendant in Kahane Trial, N.Y. Times, Dec. 22, 1991, at 136; Tabor, supra note 14. Nosair shot and was shot by a postal police officer at the scene, Carlos Acosta. Rahman, 189

F.3d at 105. Although Nosair was convicted of assault with a deadly weapon on Acosta, Nosair

sued Acosta and the postal service for his own injury. Nosair v. Acosta, No. 1:92-cv-8274, 1993

WL 336996 (S.D.N.Y. Sept. 1, 1993). His suit was dismissed as precluded by his conviction, id., and his appeal was dismissed as frivolous, Docket Sheet, Nosair v. Acosta, No. 93-2661 (2d Cir. Oct. 7, 1993).

62. Rahman, 189 F.3d at 104, 106; see Richard Bernstein, Biggest U.S. Terrorist Trial Begins

as Arguments Clash, N.Y. Times, Jan. 31, 1995, at 1 (reporting that Salem was paid more than $1

million by the United States government for his assistance); Alison Mitchell, Bomb Informer Active in 1991, Authorities Say, N.Y. Times, July 15, 1993, at A1 [hereinafter Bomb Informer]; Alison Mitchell, Egyptian Was Informer, Of icials Say, N.Y. Times, June 26, 1993, at 123 [hereinafter Egyptian Informer]; Alison Mitchell, Of icial Recalls Delay in Using Informer, N.Y. Times, 

July 16, 1993, at B2 (reporting that Salem had entered the federal witness protection program);

Mitchell, supra note 55 (describing Abdel Rahman as blind, with one eye without a pupil, the

other an empty socket ); see also Mary B.W. Tabor, Informer s Ex-Wife Said He Warned of Ter-
National Security Case Management Studies (11/14/2011) 9

Abdel Rahman was tried, but acquitted, in Egypt as an accomplice in the October 6, 1981, murder of President Anwar el-Sadat.64 He illegally entered the

United States in 1990 and faced a deportation order at the time of the World

Trade Center bombing.65 His followers plotted to assassinate Egypt s president, Hosni Mubarak, during a March 1993 visit to the United Nations in New York

City.66 Siddig Ibrahim Siddig Ali obtained Mubarak s itinerary from a source in

the Sudanese government.67 But the plot was foiled when a confidant of Abdel

Rahman s, Abdo Mohammed Haggag, informed the Egyptian government of the

assassination plan and Mubarak s New York trip was canceled.68

Siddig Ali and Clement Rodney Hampton-El led paramilitary training on

weekends between October 1992 and February 1993.69 Participants included Amir 

and Fadil Abdelgani and Tarig Elhassan, as well as the Egyptian spy Haggag.70

The training was for jihad, perhaps in Bosnia.71 Hampton-El was observed by the

FBI in July 1989 shooting weapons at a public rifle range on Long Island with

World Trade Center bombers Abouhalima, Salameh, and Ayyad.72

In May 2003, the informant Salem persuaded Siddig Ali to establish a bomb- making safehouse where the FBI had installed surveillance equipment.73

 rorism, N.Y. Times, Sept. 28, 1993, at B2 (reporting that Salem said that the day after the explosion [he] was upset and told [his ex-wife] the bombing could have been averted if the F.B.I. had

heeded his warnings ). 63. Rahman, 189 F.3d at 106; see James C. McKinley, Jr., Many Faces of Witness in Terror Trial, N.Y. Times, Mar. 6, 1995, at 3.

64. See William E. Farrell, 5 in Sadat Trial Sentenced to Die, N.Y. Times, Mar. 7, 1982, at 11;

William E. Farrell, Egypt Reports Plot to Kill Aides at Sadat s Funeral, N.Y. Times, Oct. 31, 1981, at 13; McFadden, supra note 9; McFadden, supra note 11; Mitchell, supra note 55; Tabor, supra note 14; see also The 9/11 Commission Report 56 (2004) (Abdel Rahman s preaching had

inspired the assassination of Sadat ); Ali H. Soufan, The Black Banners 47 (2011) ( he was acquitted but expelled from Egypt ). Abdel Rahmen was subsequently tried for and acquitted of participating in a plot to overthrow

the Egytian government after el-Sadat s death. See Egyptian Court Sentences 107 Moslem Militants in a 1981 Revolt, N.Y. Times, Oct. 1, 1984, at A6. He was later included in an arrest of 1,500 

Muslim extremists, but he was freed several months later. See Alan Cowell, Cairo Frees Funda- mentalist Cleric Pending Hearing on Role in Strife, N.Y. Times, Aug. 11, 1989, at A3; Alan Cowell, Egypt Seizes 1,500 in Crackdown on Fundamentalists, N.Y. Times, Apr. 27, 1989, at A3.

65. See James C. McKinley, Jr., Islamic Leader on U.S. Terrorist List Is in Brooklyn, N.Y. Times, Dec. 16, 1990, at 144; McFadden, supra note 11; Mitchell, supra note 55; see also Soufan, 

supra note 64, at 47 ( The visa was given to him in Sudan by a CIA official. ). According to the 9/11 Commission, After it was discovered that Abdel Rahman, the Blind

Sheikh, had come and gone almost at will, State initiated significant reforms to its watchlist and

visa-processing policies. The 9/11 Commission Report 95 (2004). 66. Rahman, 189 F.3d at 108; see also United States v. Rahman, 854 F. Supp. 254, 258

(S.D.N.Y. 1994).

67. Rahman, 189 F.3d at 108.

68. Id.

69. Id. at 107.

70. Id.

71. Id.

72. Id. at 105.

73. Id. at 109; see Mitchell, Egyptian Informer, supra note 62.
10 National Security Case Management Studies (11/14/2011)

The conspirators considered bombing various New York City locations, including the United Nations, the federal building, the FBI headquarters, the diamond district, the Lincoln Tunnel, and the Holland Tunnel.74

On June 13, 1993, Fares Khallafalla and the informant Salem purchased timers for bombs.75 On June 19 and 21, Amir Abdelgani, Victor Alvarez, and Salem

unsuccessfully tried to steal cars to use as both bomb-delivery and getaway vehicles.76 On June 22 and 23, Mohammed Saleh, who owned two gas stations in

Yonkers, provided nearly $300 worth of diesel fuel to Siddig Ali and the Abdelganis to use for making bombs.77

A couple of hours after midnight on June 24, 1993, the FBI raided the safe- house and arrested Siddig Ali, Amir and Fadil Abdelgani, Elhassan, and Alvarez

while they were mixing explosive chemicals.78 Hampton-El, Saleh, and Khallafalla were arrested at their homes in Flatbush, Yonkers, and Jersey City, respectively.79

It was reported that the government allowed Abdel Rahman to remain free

pending his deportation appeal because he was not considered a flight risk and the 

conspiracy evidence against him was weak.80 But after his van evaded federal

agents following him on June 30, the government decided to arrest him on an

immigration detainer.81 A negotiated surrender was agreed on for July 3.82

On July 14, the indictment against el-Gabrowny was expanded to include

bomb conspiracy charges and defendants Siddig Ali, Hampton-El, Amir Abdelgani, Khallafalla, Elhassan, Fadil Abdelgani, Saleh, Alvarez, and two others: Earl

Gant and a defendant identified only as Wahid. 83 Abdel Rahman, Nosair, Haggag, and Mohammed Abouhalima, the brother of World Trade Center bomber

 74. Rahman, 189 F.3d at 108 09; see Ralph Blumenthal, U.S. Says Bomb-Plot Suspects Talked 

of Blowing Up Manhattan Jewelry District, N.Y. Times, June 30, 1993, at B3; Robert D. McFadden, 8 Seized as Suspects in Plot to Bomb New York Targets and Kill Political Figures, N.Y. Times, June 25, 1993, at A1.

75. Rahman, 189 F.3d at 110.

76. Id.; see McFadden, supra note 74. 77. Rahman, 189 F.3d at 110.

78. Id. at 111; see McFadden, supra note 74. 79. Rahman, 189 F.3d at 111; see McFadden, supra note 74. 80. Alison Mitchell, U.S. Detains Cleric Linked to Militants, N.Y. Times, July 3, 1993, at 11.

81. See id.

82. See id.

Abdel Rahman was tried in absentia, convicted, and sentenced to seven years in prison in

Egypt in 1993 and 1994 in a prosecution for illegal demonstrations and attempts to kill police officers during protests. Bombing Defendant to Be Tried in Egypt, N.Y. Times, Oct. 22, 1993, at B3; 

Egyptian Court Sentences Absent Sheik to Prison, N.Y. Times, Apr. 29, 1994, at B3.

83. United States v. Rahman, 837 F. Supp. 64, 65 (S.D.N.Y. 1993); S.D.N.Y. Abdel Rahman Docket Sheet, supra note 57; see Ralph Blumenthal, Court Says Tapes in Bomb Plot Fail to Support Some Charges, N.Y. Times, July 8, 1993, at B3 (reporting that Wahid was still missing); Mitchell, Bomb Informer, supra note 62.
National Security Case Management Studies (11/14/2011) 11

Mahmoud Abouhalima, were added as defendants by superseding indictment on

August 25.84

Gant, who was considered a minor player in the case, was arrested on July 1, 1993, and released on bail on October 19; he pleaded guilty on April 1, 1994.85

He was sentenced on July 20, 1994, to time served, with three years of supervised

release.86

Wahid turned out to be Matarawy Mohammed Said Saleh, who was arrested 

on July 22, 1993, and who is not related to co-defendant Mohammed Saleh.87 Because prosecutors determined that Wahid joined the conspiracy only hours before

the government began arresting co-defendants, he pleaded guilty and was sentenced on December 19, 1995, to time served, with three years of supervised release.88

Haggag agreed to testify for the government; terrorism charges against him

were dropped, and he pleaded guilty to an unrelated insurance fraud scheme in

which he tried to collect on a fire he set in a cafe he co-owned.89

The other defendants were tried for seditious conspiracy to conduct a campaign of urban terrorism, including participation in the bombing of the World

Trade Center, the murder of Rabbi Kahane, the plot to assassinate President Mubarak, and plans to bomb New York landmarks.90

 84. Rahman, 837 F. Supp. at 67; S.D.N.Y. Abdel Rahman Docket Sheet, supra note 57; see 

Mary B.W. Tabor, U.S. Indicts Egyptian Cleric as Head of Group Plotting War of Urban Terrorism, N.Y. Times, Aug. 26, 1993, at A1.

85. S.D.N.Y. Abdel Rahman Docket Sheet, supra note 57; see Ralph Blumenthal, Defendant in 

a Bombing Plot Released on Bail, N.Y. Times, Oct. 19, 1993, at B2 (reporting that there was evidence that Gant agreed to obtain explosives but had no real awareness of what they would be used

for); Mary B.W. Tabor, 9th Held in Bomb Plot as Tie Is Made to a 1991 Murder, N.Y. Times, July 

1, 1993, at B3.

86. S.D.N.Y. Abdel Rahman Docket Sheet, supra note 57; see Ronald Sullivan, Minor Figure

in Bomb Plot Sentenced to Time Served, N.Y. Times, July 21, 1994, at B4 (reporting that Gant

said he thought the explosives he was providing would be used to combat the rape and massacre of 

Muslims in Bosnia).

87. See Ralph Blumenthal, Bombing Suspect Seized at Resort, N.Y. Times, July 24, 1993, at

11; Joseph P. Fried, Bombing Plotter in Plea Deal Is Given Probation and Time Served, N.Y. Times, Dec. 20, 1995, at 5; John J. Goldman, 11th Suspect in N.Y. Bombing Plot Arrested, L.A. Times, July 24, 1993, at 2.

88. S.D.N.Y. Abdel Rahman Docket Sheet, supra note 57; see Fried, supra note 87. 89. S.D.N.Y. Abdel Rahman Docket Sheet, supra note 57 (noting sentencing in Feb. 1996); see

Joseph P. Fried, In Plea Deal, Jerseyan to Testify in Terror Trial, N.Y. Times, May 2, 1995, at 5.

90. United States v. Rahman, 189 F.3d 88, 103 (2d Cir. 1999); United States v. Rahman, 861

F. Supp. 266, 270 (S.D.N.Y. 1994); United States v. Rahman, 854 F. Supp. 254, 258 (S.D.N.Y. 1994); United States v. El-Gabrowny, 844 F. Supp. 955, 957 (S.D.N.Y. 1994); see Tabor, supra

note 84. Judge Mukasey denied Nosair s motion to dismiss some counts against him as double jeopardy 

because of his prior prosecution in state court for crimes related to the murder of Rabbi Kahane. United States v. Nosair, 854 F. Supp. 251 (S.D.N.Y. 1994). Judge Mukasey also ruled that although participation in the Kahane murder was a triable offense, it could not be prosecuted as part

of seditious conspiracy, because Kahane was a private foreign citizen. Rahman, 854 F. Supp. at

258 61.
12 National Security Case Management Studies (11/14/2011)

Famed defender of the unpopular William M. Kunstler and his partner, Ronald L. Kuby, represented el-Gabrowny.91 When the indictment was superseded

to include Siddig Ali and others as defendants, Kunstler and Kuby appeared for

both el-Gabrowny and Siddig Ali.92 Judge Mukasey sought to ensure that a conflict-of-interest waiver by the defendants was knowing.93

I said I would conduct a hearing at a later date to determine that both defendants understood their right to conflict-free representation, and that in aid of such a determination I

would appoint whichever attorneys from the panel of Criminal Justice Act ( CJA ) attorneys were scheduled to receive cases that week, for the purpose of advising each defendant of that right independent of any advice received from the Kunstler firm. Kunstler objected, stating immediately in open court, without consulting either defendant, that

[t]hey are perfectly willing to be represented here by me and they are here and they are

willing to waive any alleged conflict of interest. (7/15/93 Tr. 17) He added that he did

not want any CJA attorney talking to either one of them. When I noted that neither defendant would be obligated to talk to independent counsel, but only to listen to an explanation of the risks of dual representation, Kunstler responded, There are no risks here, Judge, except those created by the government. (Id. at 18)

Notwithstanding defense counsel s position, I appointed the two lawyers on duty to

accept CJA appointment that day and a succeeding day to act as independent counsel to

El-Gabrowny and Siddig Ali, to explain to them the hazards of joint representation . . . .

. . .

. . . [B]oth defendants said they had understood the explanations of possible conflicts, and both expressed the desire to be represented by the Kunstler firm.94

When the indictment was superseded to include as defendants Nosair, Abdel

Rahman, and two others, attorney Michael Warren appeared for Nosair, and

another attorney appeared for Abdel Rahman.95

Warren and Kunstler represented Nosair at his state murder trial,96 and Warren 

appeared for el-Gabrowny at el-Gabrowny s first appearance following the filing

of a criminal complaint and preceding the filing of the indictment.97 Judge Muka-

 91. United States v. Rahman, 837 F. Supp. 64, 65 (S.D.N.Y. 1993); S.D.N.Y. Abdel Rahman Docket Sheet, supra note 57; see David Margolick, Still Radical After All These Years, N.Y. Times, July 6, 1993, at B1.

Kunstler co-founded the Center for Constitutional Rights, which, beginning in 2002, coordinated representation of Guantánamo Bay habeas petitioners. See Steven T. Wax, Kafka Comes to

America: Fighting for Justice in the War on Terror 25 (2008); see also Guantánamo Bay, infra. 92. Rahman, 837 F. Supp. at 65; S.D.N.Y. Abdel Rahman Docket Sheet, supra note 57. 93. Rahman, 861 F. Supp. at 271; Rahman, 837 F. Supp. at 65 66.

94. Rahman, 837 F. Supp. at 65 66 (quotation alterations in original); see id. at 66 (noting that

Siddig Ali appeared to base his decision in part on his proclamation of innocence: I believe that

my co-defendant and myself are innocent people. My conflict is not with my co-defendant or with

anybody else, but it is with the government, with the FBI, and with those people who are accusing

me of doing things or saying things that I have not conspired or done. ). 95. Rahman, 861 F. Supp. at 271; Rahman, 837 F. Supp. at 67; S.D.N.Y. Abdel Rahman Docket Sheet, supra note 57. 96. See Selwyn Raab, Jury Selection Seen as Crucial to Verdict, N.Y. Times, Dec. 23, 1991, at 

B8.

97. Rahman, 861 F. Supp. at 270; Rahman, 837 F. Supp. at 65; S.D.N.Y. Abdel Rahman Docket Sheet, supra note 57 (noting the filing of a criminal complaint against El-Gabrowny on Mar. 5, 1993, and the filing of an indictment against El-Gabrowny on Mar. 17, 1993).
National Security Case Management Studies (11/14/2011) 13

sey denied Nosair s application to name Warren as his appointed attorney in this

federal trial as an exception to regular Criminal Justice Act procedures.98 Judge 

Mukasey assigned Nosair a CJA panel attorney.99

Abdel Rahman s attorney announced that he and Abdel Rahman could not

agree on a fee; Kunstler and Kuby informed the court that they had accepted Abdel Rahman s request that they represent him instead.100 The government moved

to disqualify the Kunstler firm from representing more than one defendant.101 On 

November 9, 1993, Judge Mukasey ruled that the firm could either represent el- Gabrowny and Siddig Ali, as they had, or Abdel Rahman, but not all three.102 Abdel Rahman opted to represent himself, and the court appointed a panel attorney

to assist him.103 By the time the trial commenced, he was represented by Lynne

Stewart,104who had represented Ajaj at Ajaj s arraignment in the bombing

case.105

On February 8, 1994, Mohammed Abouhalima, the brother of World Trade

Center bombing defendant Mahmud Abouhalima, was released in a sealed proceeding.106 But he was indicted on September 18, 1996, for aiding his brother s

 98. United States v. Rahman, No. 1:93-cr-181, 1993 WL 340992 (S.D.N.Y. Sept. 3, 1993); see 

Gross, supra note 26, at 8.

In denying Nosair s request on reconsideration, Judge Mukasey also denied an application by

Lynne Stewart to represent Mouhammed Abouhalima. United States v. Rahman, id., 1993 WL

410449 (Oct 13, 1993); see Gross, supra note 26, at 8.

99. Rahman, 861 F. Supp. at 270; S.D.N.Y. Abdel Rahman Docket Sheet, supra note 57. 100. Rahman, 861 F. Supp. at 271; Rahman, 837 F. Supp. at 67; United States v. Rahman, No. 

1:93-cr-181, 1993 WL 385762 (S.D.N.Y. Sept. 27, 1993); see Kunstler to Defend Sheik in Bombing Case, N.Y. Times, Sept. 22, 1993, at B4; see also Gross, supra note 26, at 7 10 (describing as 

a celebrity lawyer issue the attorneys wanting to represent not only lesser known defendants but

also the most high-profile defendant).

101. Rahman, 861 F. Supp. at 271; Rahman, 837 F. Supp. at 65.

102. Rahman, 837 F. Supp. at 65, 72; see id. at 71 (noting that the court would appoint standby 

counsel to conduct cross-examination of any former client of the Kunstler firm who takes the

stand at trial, so as to minimize the risk that that client s privileged communications to the

Kunstler firm will influence the cross-examination ); Rahman, 861 F. Supp. at 271 (noting ruling); see also Ralph Blumenthal, Judge Rules That Sheik and Two Other Defendants Cannot

Share Lawyers, N.Y. Times, Nov. 11, 1993, at B3.

103. Rahman, 861 F. Supp. at 268; see Ralph Blumenthal, Sheik Is Prepared to Act as Lawyer, 

Judge Is Told, N.Y. Times, Nov. 16, 1993, at B3.

Abdel Rahman had been successful defending himself pro se in Egypt on conspiracy charges

in connection with the 1981 assassination of Egyptian President Anwar Sadat and thus

thought he could duplicate those results; Abdel Rahman also wanted to use the trial as a platform from which to convey his views.

Gross, supra note 26, at 4 (reporting on an interview with Judge Mukasey).

Judge Mukasey told Abdel Rahman that if he behaved improperly, appointed counsel would

take over. Interview with Michael B. Mukasey, June 25, 2007.

104. See Bernstein, supra note 62; Gross, supra note 26, at 4 ( Ultimately, Abdel Rahman s

close circle of people around him convinced him that he would have little chance of prevailing if

he continued through trial pro se and convinced him to accept counsel. ). 105. See Tabor, supra note 4. 106. See Mary B.W. Tabor, Defendant in Bomb Plot Released on Bail, N.Y. Times, Feb. 9, 1994, at B2.
14 National Security Case Management Studies (11/14/2011)

escape.107 He was convicted on May 28, 1997, and sentenced on November 24, 1998, to eight years in prison.108

In June 1994, Siddig Ali obtained substitute counsel to help him try to cooperate with the government, but the government decided in August not to strike a

deal.109 The substitute counsel asked to be relieved as Siddig Ali s attorney, because his knowledge of Siddig Ali s proffers to the government would constrain

what evidence the attorney could offer at trial, and Siddig Ali asked to be

represented by the Kunstler firm again.110 The government objected.111 Judge 

Mukasey ruled that Kunstler and Kuby could no longer represent Siddig Ali.112

Judge Mukasey also ruled that the Kunstler firm s prior representations of Siddig

Ali and Nosair had now created conflicts of interest with its representation of el- Gabrowny so serious as to disqualify it from representing el-Gabrowny as well.113

Kunstler died on Labor Day, September 4, 1995, the day before closing arguments began in the trial.114

Voir dire began on January 9, 1995.115 To facilitate jury selection, Judge Mukasey used a jury questionnaire, which he had seldom done before, and he found

it very helpful.116 Judge Mukasey used an anonymous jury and conducted post-

 107. S.D.N.Y. Abdel Rahman Docket Sheet, supra note 57; see Joseph P. Fried, U.S. Says Man 

Helped Brother Flee in Trade Center Bombing, N.Y. Times, Sept. 19, 1996, at 8.

108. S.D.N.Y. Abdel Rahman Docket Sheet, supra note 57; see Two Are Sentenced in Trade

Center Bombing, N.Y. Times, Nov. 25, 1998. The court of appeals affirmed. United States v. Abouhalima, No. 98-1677, 1999 WL 1295846 (2d Cir. Dec. 23, 1999).

Mohammed Abouhalima was released from prison on August 25, 2005. http://www.bop.gov

(reg. no. 28173-054).

109. United States v. Rahman, 861 F. Supp. 266, 268 (S.D.N.Y. 1994); see Raymond Hernandez, Bomb Plot Suspect Will Not Be Witness for U.S., N.Y. Times, Aug. 13, 1994, at 123.

110. Rahman, 861 F. Supp. at 268.

111. Id. at 267 68.

112. Id. at 268, 276, 279.

113. Id. at 276 78, 279; see Richard Bernstein, Judge Disqualifies Kunstler Firm from Role in Bombing-Plot Trial, N.Y. Times, Aug. 26, 1994, at A1; Ronald Sullivan, U.S. Moves to Exclude 2

Lawyers, N.Y. Times, July 7, 1994, at B4.

114. See Joseph P. Fried, Sheik Called an Architect of Terrorism, N.Y. Times, Sept. 6, 1995, at 

3; David Stout, William Kunstler, 76, Dies, N.Y. Times, Sept. 5, 1995, at 6 (reporting that

Kunstler died of a heart attack).

115. United States v. Abouhalima, 961 F. Supp. 78, 80 (S.D.N.Y. 1997); S.D.N.Y. Abdel 

Rahman Docket Sheet, supra note 57; see Richard Bernstein, Trial for 12 Opens in Plot for Bombing New York Buildings, N.Y. Times, Jan. 10, 1995, at 1. 

Public attention to this trial was diminished somewhat by the coincident criminal trial of O.J. Simpson for the murder of his wife and her friend. Interview with Michael B. Mukasey, June 25, 2007; see Simpson Case Timeline, L.A. Times, Oct. 3, 1995, at 3 (noting that jury selection in the

Simpson trial began on Sept. 26, 1994; opening statements began on Jan. 24, 1995; and the not

guilty verdict was announced on Oct. 3, 1995).

116. Michael B. Mukasey, United States v. Abdel Rahman: Jury Questionnaire (Jan. 9, 1995);

Interview with Michael B. Mukasey, June 25, 2007.

Judge Mukasey has pointed out that a good jury questionnaire should serve to weed out two

types of jurors: those who cannot reasonably meet the time commitment for such a trial and

those who cannot be impartial knowing all the publicity about the trial or having bias against

certain people.
National Security Case Management Studies (11/14/2011) 15

questionnaire voir dire in a conference room with the press represented by two

reporters one from print and one from electronic media.117

Opening statements commenced on January 30.118 Judge Mukasey found it

helpful necessary even to charge the jury with applicable law at the beginning

of the case, between opening statements and presentation of evidence.119 For example, it was important for the jury to understand up front that seditious conspiracy did not necessarily include an intent to overthrow the government.120 As was

his general practice, Judge Mukasey permitted jurors to take notes.121

On February 6, Siddig Ali pleaded guilty, agreed to be a witness for the government, and asked God to forgive him for his acts, which he admitted were

wrong.

122 He was sentenced to 11 years in prison on October 15, 1999, on a finding that he provided the government with extensive assistance in the case.123

Judge Mukasey conducted the nine-month trial four days per week.124 A brief

experience with five days per week fatigued all participants without moving

things along noticeably faster.125 Both Arabic and Spanish interpreters were required.126

While the trial was in progress, on April 19, 1995, the federal building in Oklahoma City, including the courthouse, was partially destroyed by a bomb.127

Judge Mukasey permitted the jurors to consult news of the event, but admonished

them not to let it influence them in the trial.128

On October 1, 1995, the jury convicted el-Gabrowny, Hampton-El, both Abdelganis, Khallafalla, Elhassan, Saleh, Alvarez, Abdel Rahman, and Nosair of seditious conspiracy and other charges, including a guilty verdict for Nosair in Rabbi Kahane s murder.129 On January 17, 1996, Judge Mukasey sentenced Abdel

 Gross, supra note 26, at 22 23.

117. Interview with Michael B. Mukasey, June 25, 2007.

118. S.D.N.Y. Abdel Rahman Docket Sheet, supra note 57; see Bernstein, supra note 62. 119. Michael B. Mukasey, United States v. Abdel Rahman: Preliminary Charge (Feb. 1, 1995); 

Interview with Michael B. Mukasey, June 25, 2007.

120. Interview with Michael B. Mukasey, June 25, 2007.

121. Id.

122. S.D.N.Y. Abdel Rahman Docket Sheet, supra note 57; see Richard Bernstein, Bomb Plot

Defendant Shifts Plea to Guilty and Implicates Others, N.Y. Times, Feb. 7, 1995, at 1.

123. S.D.N.Y. Abdel Rahman Docket Sheet, supra note 57; see Benjamin Weiser, Remorseful 

Terror Conspirator Gets an 11-Year Sentence, N.Y. Times, Oct. 16, 1999, at B6.

124. Interview with Michael B. Mukasey, June 25, 2007; see Adam Liptak, Big Terror Trial

Shaped Views of Justice Pick, N.Y. Times, Sept. 20, 2007, at A1 (describing the trial as the longest and most complex international terrorism case ever presented in a United States court ). 125. Interview with Michael B. Mukasey, June 25, 2007.

126. Id.

127. See John Kifner, At Least 31 Are Dead, Scores Are Missing After Car Bomb Attack in Oklahoma City Wrecks 9-Story Federal Office Building, N.Y. Times, Apr. 20, 1995, at 1.

128. Interview with Michael B. Mukasey, June 25, 2007; see Joseph P. Fried, Judge Refuses to 

Sequester Jury in Terrorism Case in New York, N.Y. Times, Apr. 20, 1995, at 8.

129. S.D.N.Y. Abdel Rahman Docket Sheet, supra note 57; see Joseph P. Fried, Sheik and 9

Followers Guilty of a Conspiracy of Terrorism, N.Y. Times, Oct. 2, 1995, at 1.

Hampton-El, Fadil Abdelgani, Elhassan, and Alvarez testified at trial; the others did not. Michael B. Mukasey, United States v. Abdel Rahman: Jury Instructions (Sept. 23, 1995).
16 National Security Case Management Studies (11/14/2011)

Rahman and Nosair to life in prison and sentenced the other eight defendants as

follows: el-Gabrowny to 57 years; Alvarez, Elhassan, Hampton-El, and Saleh to

35 years; Amir Abdelgani and Khallafalla to 30 years; and Fadil Abdelghani to 25 

years.130

On August 16, 1999, the court of appeals affirmed the convictions and largely

affirmed the sentences, remanding for a reconsideration of el-Gabrowny s sentence.131 On remand, Judge Mukasey sentenced el-Gabrowny to 33 years,132

which the court of appeals affirmed.133

A Plot to Bomb Airplanes

In the summer of 1994, Yousef moved to Manila, Philippines.134 There, he

launched a conspiracy to bomb U.S. airliners serving routes in southeast Asia.135

To test their methods, Yousef and Wali Khan Amin Shah bombed a Manila movie 

theater on December 1, 1994, injuring several moviegoers.136 On December 11, Yousef planted a nitroglycerine bomb under a passenger seat during the first leg

of a Philippine Airlines flight from Manila to Tokyo.137 Yousef exited the plane

during a stopover in Cebu, Philippines, and the bomb exploded during the second

leg, killing one passenger and injuring several others.138

Yousef and his high school friend, Abdul Hakim Murad, were burning chemicals in their Manila apartment on January 6, 1995, and they accidentally started a

fire that resulted in a visit from Philippine police officers and discovery of the plot 

to bomb planes.139

 130. S.D.N.Y. Abdel Rahman Docket Sheet, supra note 57; see Joseph P. Fried, Sheik Sentenced to Life in Prison in Bombing Plot, N.Y. Times, Jan. 18, 1996, at 1; Wren, supra note 1. On July 23, 2010, Magistrate Judge Kevin Nathaniel Fox agreed to appoint habeas counsel for

Nosair. Order, Nosair v. United States, No. 1:00-cv-8383 (S.D.N.Y. July 23, 2010); see Benjamin 

Weiser, Convicted Qaeda Agent Seeks Retrial in 95 Case, N.Y. Times, June 13, 2011, at A21.

131. United States v. Rahman, 189 F.3d 88, 157 60 (2d Cir. 1999); see Benjamin Weiser, Appellate Court Backs Convictions in 93 Terror Plot, N.Y. Times, Aug. 17, 1999, at A1.

132. S.D.N.Y. Abdel Rahman Docket Sheet, supra note 57. 133. United States v. Elgabrowny, 10 F. App x 23 (2d Cir. 2001). 134. United States v. Yousef, 327 F.3d 56, 79 80 (2d Cir. 2003).

135. The 9/11 Commission Report 147 (2004) (noting that the plan became known as the Bojinka plot); Yousef, 327 F.3d at 79 80; Dina Temple-Raston, The Jihad Next Door: The Lackawanna Six and Rough Justice in the Age of Terror 24 (2007) (reporting that the plan was to use

liquid explosives that would pass through airport metal detectors).

136. The 9/11 Commission Report 147 (2004); Yousef, 327 F.3d at 79, 81; see Wren, supra 

note 1. 137. The 9/11 Commission Report 147 (2004); Yousef, 327 F.3d at 79, 81; United States v. Yousef, 927 F. Supp. 673, 675 (S.D.N.Y. 1996); see McKinley, supra note 20; Wren, supra 

note 1. 138. Yousef, 327 F.3d at 79, 81; Yousef, 927 F. Supp. at 675; see McKinley, supra note 20; 

Wren, supra note 1. 139. Yousef, 327 F.3d at 79, 81; see McKinley, supra note 20; Philip Shenon, Broad Terror Campaign Is Foiled by Fire in Kitchen, Of icials Say, N.Y. Times, Feb. 12, 1995, at 1; Temple- Raston, supra note 135, at 24; Wren, supra note 1.
National Security Case Management Studies (11/14/2011) 17

Philippine authorities arrested Murad on January 7, and he was transported to

the Southern District of New York on April 12.140 While en route, he confessed

that the goal of the bombing plot was to punish the United States and its people

for their support of Israel.141

Philippine authorities arrested Shah on January 11, but he escaped.142 He was

recaptured by Malaysian authorities in December 1995 and flown to New York on 

December 12.143

Yousef fled the Philippines but was turned in by an accomplice to authorities

in Islamabad, Pakistan, on February 7, 1995.144 He was transported to the Southern District of New York on February 8.145 En route, he confessed to an intention 

to topple one of the World Trade Center towers into the other.146

A jury trial against Yousef, Murad, and Shah for conspiracy to bomb airliners

began with jury selection on May 13, 1996.147 Yousef asked to address the jury

during opening arguments, and Judge Duffy said that if he did he would have to

act as his own lawyer throughout the trial.148 Yousef and Judge Duffy agreed that

he would do this.149 All three defendants were convicted on September 5, the

fourth day of deliberation.150

 140. Yousef, 327 F.3d at 79, 81; United States v. Yousef, 925 F. Supp. 1069 (S.D.N.Y. 1996);

see McKinley, supra note 20. 141. Yousef, 327 F.3d at 83.

142. Id. at 79, 82; see James C. McKinley, Jr., F.B.I. Arrests Man in Far East, Charged in Plot 

to Bomb Planes, N.Y. Times, Dec. 13, 1995, at 5.

143. Yousef, 327 F.3d at 79, 82; see McKinley, supra note 142. 144. The 9/11 Commission Report 148 (2004); Yousef, 327 F.3d at 79, 81 82; United States v. 

Yousef, 925 F. Supp. 1063, 1065 (S.D.N.Y. 1996); see Johnston, supra note 20; McKinley, supra

note 20; Temple-Raston, supra note 135, at 24; Wren, supra note 1. 145. Yousef, 327 F.3d at 82; Yousef, 925 F. Supp. at 1065; see S.D.N.Y. Salameh Docket 

Sheet, supra note 21 (noting Yousef s not guilty plea on Feb. 9, 1995); see also Johnston, supra

note 20; Wren, supra note 1. 146. See Benjamin Weiser, Suspect s Confession Cited as Bombing Trial Opens, N.Y. Times, Aug. 6, 1997, at B6.

147. Yousef, 327 F.3d at 85 (giving the start date as May 29, which was the day of opening arguments); S.D.N.Y. Salameh Docket Sheet, supra note 21 (also noting the filing on Apr. 13, 1995, 

of an eighth superseding indictment against Yousef, Yasin, and Murad; the filing on June 14, 1995, of a ninth superseding indictment against Yousef, Yasin, and Murad; the filing on Sept. 11, 1995, of a tenth superseding indictment against Yousef, Yasin, Murad, and Ismoil; the filing on

Dec. 13, 1995, of eleventh superseding indictments against Yousef, Yasin, Murad, Ismoil, and

Shah; and the filing on Feb. 21, 1996, of twelfth superseding indictments against Yousef, Yasin, Murad, Ismoil, and Shah); see Judge Dismisses 75 on Bomb Jury Panel, N.Y. Times, May 14, 1996, at 2 [hereinafter Judge Dismisses 75].

148. See Gross, supra note 26, at 5; Christopher S. Wren, Plot of Terror in the Skies Is Outlined by a Prosecutor, N.Y. Times, May 30, 1996, at 3.

149. See Gross, supra note 26, at 5; Christopher S. Wren, Terror Suspect Defends Himself and

Of ers Jury an Alibi, N.Y. Times, May 31, 1996, at 1; Wren, supra note 1; Christopher S. Wren, With Judge s Gentle Help, Terror Suspect Starts Case, N.Y. Times, Aug. 22, 1996, at 1.

150. Yousef, 327 F.3d at 85; see Wren, supra note 1.
18 National Security Case Management Studies (11/14/2011)

A jury trial against Yousef and Ismoil for involvement in the bombing of the

World Trade Center began with jury selection on July 15, 1997.151 This time, Yousef let a lawyer represent him.152 Both were convicted on November 12.153

Judge Duffy sentenced Yousef on January 8, 1998, to 240 years in prison for

his participation in the World Trade Center bombing and a consecutive life sentence for his participation in the plot to bomb airliners.154 At his sentencing, Yousef proclaimed, I am a terrorist and I am proud of it. 155 Judge Duffy sentenced

Ismoil on April 3, 1998, to 240 years in prison; and the judge sentenced Murad on 

May 15, 1998, to life plus 60 years.156 The court of appeals affirmed the convictions and sentences on April 4, 2003.157 On October 8, 2004, Judge Duffy sentenced Shah to 30 years.158

2001 Destruction of the World Trade Center

On June 5, 2008, during the presidency of George W. Bush, five men were arraigned in military tribunals at Guantánamo Bay for the September 11, 2001, attacks: Khalid Sheikh Mohammed (KSM), Mustafa Ahmed al-Hawsawi, Ramzi

Bin al-Shibh, Walid Bin Attash, and Ali Abdul Aziz Ali.159 Eric H. Holder, President Obama s attorney general, announced on November 13, 2009, that the men

 151. Yousef, 327 F.3d at 77 78, 80; S.D.N.Y. Salameh Docket Sheet, supra note 21; see Jury 

Selection Begins in Trade Center Trial, N.Y. Times, July 16, 1997, at B2.

152. See Bomb Suspect to Use Lawyer at 2d Trial, N.Y. Times, Dec. 6, 1996, at 3.

153. Yousef, 327 F.3d at 80, 137; S.D.N.Y. Salameh Docket Sheet, supra note 21; see Benjamin Weiser, Mastermind and Driver Found Guilty in 1993 Plot to Blow Up Trade Center, N.Y. 

Times, Nov. 13, 1997, at A1.

154. Yousef, 327 F.3d at 80, 85, 135; S.D.N.Y. Salameh Docket Sheet, supra note 21; see Benjamin Weiser, Mastermind Gets Life for Bombing of Trade Center, N.Y. Times, Jan. 9, 1998, at

A1.

The court of appeals denied Yousef s appeal of the district court s decision not to appoint habeas corpus counsel under the Criminal Justice Act. United States v. Yousef, 395 F.3d 76 (2d Cir. 2005).

155. See Weiser, supra note 154. 156. Yousef, 327 F.3d at 80, 85, 135; S.D.N.Y. Salameh Docket Sheet, supra note 21; see Pilot 

Is Given Life Term for Bombing Plot, N.Y. Times, May 16, 1998, at B5; Benjamin Weiser, Driver 

Gets 240 Years in Prison for Bombing of Trade Center, N.Y. Times, Apr. 5, 1998, at B2.

157. Yousef, 327 F.3d 56; see Benjamin Weiser, Judges Uphold Convictions in 93 Bombing, N.Y. Times, Apr. 5, 2003, at D5.

The appeal was heard by Second Circuit Judges Ralph K. Winter, Jr., John Walker, Jr., and

José A. Cabranes. Because, by chance, all three judges sat in New Haven, Connecticut, oral argument was held there. Interview with Hon. José A. Cabranes, Nov. 4, 2009. Second Circuit oral

arguments are almost always held in New York. Interview with 2d Cir. Clerk s Office Staff, Nov. 6, 2009.

158. S.D.N.Y. Salameh Docket Sheet, supra note 21. 159. See William Glaberson, Arraigned, 9/11 Defendants Talk of Martyrdom, N.Y. Times, June 6, 2008, at A1; Josh White, 9/11 Architect Tells Court He Hopes for Martyrdom, Wash. Post, 

June 6, 2008, at A1.
National Security Case Management Studies (11/14/2011) 19

would be tried in the Southern District of New York instead.160 Their sealed December 14 indictment was added to the indictment for the 1993 World Trade Center bombing.161 Magistrate Judge James C. Francis IV granted the government s

request to both seal the indictment and keep it off the case s docket.162 According 

to the government,

knowledge of the specific date the Superseding Indictment was returned may lead the defendants to coordinate with each other in ways that undermine both their security and the

security of others. In addition, notice that new charges have been filed against the defendants may lead them to destroy evidence they now possess.163 The defense appropriation act for 2011, however, forbade the use of defense

funds to transfer KSM or any other Guantánamo Bay detainee for prosecution in a 

civilian court,164so the government obtained a dismissal of the superseding indictment in favor of renewed military tribunal prosecutions.165

Challenge: Court Security

Security was tight in these trials. One downside of tight security in a criminal

prosecution is the message it sends to the jury that the defendants might be dangerous. In the trial for conspiracy to bomb airplanes, Judge Duffy had to dismiss

the first 75 prospective jurors because they indicated they would be influenced by

heavy court security.166

Challenge: Jury Security

Both Judge Duffy and Judge Mukasey used anonymous juries for the jurors protection.167 To protect the jurors safety and anonymity, they did not report directly

 160. See Peter Finn & Carrie Johnson, Alleged Sept. 11 Planner Will Be Tried in New York, Wash. Post, Nov. 14, 2009, at A1; Charlie Savage, U.S. to Try Avowed 9/11 Mastermind Before

Civilian Court in New York, N.Y. Times, Nov. 14, 2009, at A1.

161. Superseding Indictment, United States v. Salameh, No. 1:93-cr-180 (S.D.N.Y. Dec. 14, 2009, filed Apr. 4, 2011); see Benjamin Weiser, In Federal Court, a Docket Number for Global

Terror, N.Y. Times, Apr. 11, 2011, at A18.

162. Order, Salameh, No. 1:93-cr-180 (S.D.N.Y. Dec. 14, 2009, filed Apr. 4, 2011).

163. Affirmation at 2, Salameh, No. 1:93-cr-180 (S.D.N.Y. Dec. 14, 2009, filed Apr. 4, 2011).

164. Pub. L. No. 111-383, 124 Stat. 4351, § 1032 (2011); see Peter Finn & Anne E. Kornblut, President Decries Rules on Detainees, Wash. Post, Jan. 8, 2011, at A2; Charlie Savage, New 

Measure to Hinder Closing of Guantánamo, N.Y. Times, Jan. 8, 2011, at A11.

165. Nolle Prosequi, Salameh, No. 1:93-cr-180 (S.D.N.Y. Apr. 4, 2011); http://www.defense. 

gov/news/commissions.html (military commission records); see Peter Finn, Charges Against 9/11

Suspects Are Re-Filed, Wash. Post, June 1, 2011, at A6; Peter Finn, Sept. 11 Suspects Will Be

Tried by a Military Panel, Wash. Post, Apr. 5, 2011, at A1; Charlie Savage, In a Reversal, Military Trials for 9/11 Cases, N.Y. Times, Apr. 5, 2011, at A1.

166. See Judge Dismisses 75, supra note 147. 167. Michael B. Mukasey, United States v. Abdel Rahman: Preliminary Voir Dire (Jan. 9, 1995) [hereinafter Mukasey Preliminary Voir Dire]; see Bernstein, supra note 9; Blumenthal, supra note 38; Gross, supra note 26, at 21 ( In every major terrorism trial that has taken place in the

Southern District [of New York], an anonymous jury has been used due to the heightened risk of

harm to potential jurors because of the nature of the crime at issue. ); Tabor, supra note 39; Wren, 
20 National Security Case Management Studies (11/14/2011)

to the courthouse but to secret locations from which deputy marshals transported

them to court.168 When an alternate juror s anonymity became at risk in the last

trial, Judge Duffy dismised the juror.169

Because of the anticipated lengths of the trials, Judge Duffy decided not to sequester the juries.170 Judge Mukasey did not sequester the jurors during his trial

until it was time to deliberate, at which time he moved to a seven-days-per-week 

schedule.171

Both Judge Duffy and Judge Mukasey sought to provide the jurors with extra

comforts, such as meals and beverages.172

Challenge: Classified Evidence

In the seditious conspiracy trial, the government presented six classified exhibits

ex parte to Judge Mukasey, pursuant to the Classified Information Procedures Act 

(CIPA).173 Judge Mukasey kept the exhibits in a safe while he considered whether 

they had to be produced.174 He ruled which exhibit had to be disclosed to the defendants, ordered that it not be disclosed to anyone else by the defendants, and

ordered that all of the exhibits be kept under seal with the classified information 

security officer.175

 supra note 1 ( After the [first Yousef] trial ended, the jurors were whisked away in three vans

before reporters could approach them. ). 168. Mukasey Preliminary Voir Dire, supra note 167; Interview with Michael B. Mukasey, June 25, 2007; Interview with Meghan Silhan, law clerk to Hon. Kevin Thomas Duffy, July 23, 2007.

169. See Benjamin Weiser, Trial Delayed for 2 Charged with Bombing Trade Center, N.Y. Times, Aug. 5, 1997, at B3.

170. Interview with Meghan Silhan, law clerk to Hon. Kevin Thomas Duffy, July 23, 2007; see 

Bernstein, supra note 9; Tabor, supra note 39. 171. Interview with Michael B. Mukasey, June 25, 2007.

172. Mukasey Preliminary Voir Dire, supra note 167; see Benjamin Weiser, Bomb Trial Judge 

Tries to Put the Jury at Ease, N.Y. Times, Aug. 10, 1997, at 131.

173. United States v. Rahman, 870 F. Supp. 47, 49 (S.D.N.Y. 1994); Interview with Michael

B. Mukasey, June 25, 2007; see Gross, supra note 26, at 37; see also 18 U.S.C. app. 3; 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 (2007).

174. Interview with Michael B. Mukasey, June 25, 2007.

175. Rahman, 870 F. Supp. 47; see Gross, supra note 26, at 37 (reporting that only one of the

six documents had to be disclosed); Liptak, supra note 124 ( Judge Mukasey was concerned

throughout about balancing the defendants rights against national security. He ordered an array of

potential evidence to be disclosed to the defense, for instance, but drew the line at information he

said would needlessly compromise intelligence operations. ).
National Security Case Management Studies (11/14/2011) 21

Burma

Horn v. Huddle

(Royce C. Lamberth, D.D.C.)

On August 11, 1994, Richard A. Horn, who had been the country attaché in Burma for the Drug Enforcement Administration (DEA), filed a civil action alleging

illegal surveillance of his telephone calls by the Department of State s chief of

mission there and by a CIA officer, arising from disagreements over how much

credit Burma should have received for addressing drug enforcement issues.176 The 

U.S. District Court for the District of Columbia assigned the Case to Judge Harold 

H. Greene.177

The complaint alleged that Horn made substantial progress working in concert with the Burmese government to improve its performances in addressing major drug issues. 178 Because of a political and personal agenda to thwart and undermine DEA s mission in Burma, 179 however, information that the defendants

provided to Congress and the President was deliberately shaped to conform with

[a] political policy [that] in effect prevented [Burma] from accruing any credit for

its efforts or achievements. 180

A week after the complaint was filed, the government moved to seal the case

in order to protect classified information from public disclosure.181 Judge Greene

granted the motion on August 29.182

On September 12, 1996, Horn filed a class action complaint alleging a pattern

and practice of illegal surveillance of DEA agents,183 and that case, which remains 

sealed,184 was dismissed in 2000.185

 176. Redacted Complaint, Horn v. Huddle, No. 1:94-cv-1756 (D.D.C. Aug. 11, 1994, refiled

June 9, 2009) [hereinafter Horn v. Huddle Complaint]; see In re Sealed Case, 494 F.3d 139, 141

(D.C. Cir. 2007); Horn v. Huddle, 699 F. Supp. 2d 236, 237 (D.D.C. 2010); Horn v. Huddle, 636

F. Supp. 2d 20, 21 (D.D.C. 2009); Docket Sheet, Horn, No. 1:94-cv-1756 (D.D.C. Aug. 11, 1994); 

see also Mike Scarcella, DOJ Won t Open Classified Minds, Legal Times, Sept. 21, 2009, at 21;

Tim Weiner, Suit by Drug Agent Says U.S. Subverted His Burmese Ef orts, N.Y. Times, Oct. 27, 1994, at A9.

177. Horn v. Huddle Complaint, supra note 176. 178. Id. at 6.

179. Id. at 3.

180. Id. at 6.

181. Sealing Motion, Horn, No. 1:94-cv-1756 (D.D.C. Aug. 19, 1994, refiled June 9, 2009)

(motion by U.S. Attorney Eric H. Holder, Jr., and Assistant U.S. Attorney John D. Bates).

182. Order, id. (Aug. 30, 1994, refiled June 9, 2009); see Horn v. Huddle, 636 F. Supp. 2d 20, 21 (D.D.C. 2009).

183. Horn v. Huddle, 636 F. Supp. 2d 10, 13 (D.D.C. 2009); Opinion at 3, Horn, No. 1:94-cv- 1756 (D.D.C. Aug. 15, 2000, refiled June 9, 2009).

184. Docket Sheet, Horn v. Christopher, No. 1:96-cv-2120 (D.D.C. Sept. 12, 1996) (sealed).

The complaint is filed unsealed in the record of Horn s earlier action. Class Action Complaint, Horn, No. 1:94-cv-1756 (D.D.C. Sept. 12, 1996, refiled June 9, 2009).

185. In re Sealed Case, 494 F.3d 139, 141 n.1 (D.C. Cir. 2007).
22 National Security Case Management Studies (11/14/2011)

Horn s Bivens action186claimed surveillance, in violation of the Fourth

Amendment, conducted to facilitate a transfer of Horn out of Burma.187 On February 10, 1997, Judge Greene denied the government s motion to dismiss.188 In 

1999, Judge Royce C. Lamberth assumed responsibility for the case because of

Judge Greene s illness and death.189

On July 28, 2004, Judge Lamberth granted the government s motion to dismiss the case on state-secrets grounds.190 On June 29, 2007, the court of appeals

reversed, in part.191 The court ruled that the case could proceed against Franklin

Huddle, Jr., the chief of mission, but not against the CIA officer, whose identity

was classified.192

A government attorney, who began working on the case after the remand, discovered and informed Judge Lamberth that since 2002 the CIA officer s identity

had actually not been classified.193 In light of the remand and finding that the

conduct of an attorney within the CIA s office of general counsel in 2005 escalated this case from one of simple misrepresentation to fraud on the court, 194

Judge Lamberth decided, on January 15, 2009, to give Horn an opportunity to

show how he could proceed using unprivileged material against both Huddle and

the CIA agent, Arthur Brown.195

Initially, Judge Lamberth was told that Brown s unclassified status did not

come to the attention of CIA attorneys until 2005, at which time it should have

 186. See Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotis, 403 U.S. 388

(1971).

187. In re Sealed Case, 494 F.3d at 141; see Scarcella, supra note 176 ( Horn was moved to a

DEA office in New Orleans in 1993 ). 188. Opinion, Horn, No. 1:94-cv-1756 (Feb. 10, 1997, refiled June 9, 2009).

189. In re Sealed Case, 494 F.3d at 142 n.2; Notice, Horn, No. 1:94-cv-1756 (June 27, 1999, refiled June 9, 2009); Federal Judicial Center Biographical Directory of Federal Judges, http:// 

www.fjc.gov/public/home.nsf/hisj (noting Jan. 29, 2000, as the date of death); see Scarcella, supra

note 176. Tim Reagan interviewed Judge Lamberth for this report in the judge s chambers on May 13, 2011.

190. Opinion, Horn, No. 1:94-cv-1756 (D.D.C. July 28, 2004, refiled June 9, 2009); see In re

Sealed Case, 494 F.3d at 142; Horn v. Huddle, 636 F. Supp. 2d 10, 13 (D.D.C. 2009); see Scarcella, supra note 176; Too Secret? Rethinking Government Classification, The Kojo Nnamdi Show

(WAMU radio broadcast Aug. 15, 2011) [hereinafter Too Secret?].

191. In re Sealed Case, 494 F.3d 139; see Scarcella, supra note 176. 192. In re Sealed Case, 494 F.3d 139; see Horn, 636 F. Supp. 2d at 13 14 & n.2; see Too Secret?, supra note 190. 193. Horn, 636 F. Supp. 2d at 15; Opinion at 2 & n.2, Horn, No. 1:94-cv-1756 (D.D.C. Jan. 15, 2009, refiled June 9, 2009) [hereinafter Jan. 15, 2009, Opinion]; see Scarcella, supra note 176. And if you had simply Googled his name, you would have seen that he appeared on The

Charlie Rose Show a couple of years before. Too Secret?, supra note 190; see A Conversation with Arthur Brown, Former CIA East Asia Division Chief About the Nuclear Program in North

Korea, Charlie Rose (PBS television broadcast June 17, 2005).

194. Jan. 15, 2009, Opinion, supra note 193, at 5; see Horn, 636 F. Supp. 2d at 15; see also

Scarcella, supra note 176. 195. Jan. 15, 2009, Opinion, supra note 193, at 12 13; see Horn, 636 F. Supp. 2d at 15.
National Security Case Management Studies (11/14/2011) 23

been brought to the attention of the court of appeals,196 but after Judge Lamberth

ruled that the case against Brown might go forward, Brown informed the court

that he informed the CIA s office of general counsel about his change in status

within a few months of its occurring.197

Judge Lamberth ordered the government to provide the court and the plaintiff

with an unclassified redacted version of every document filed so far in the still- sealed case.198 On June 9, 2009, the case was unsealed and public versions of all

documents filed before then were added to the case file.199

On October 26, the case settled for $3 million.200 In cooperation with the Attorney General, Judge Lamberth referred the evidence of possible misconduct by

CIA lawyers to the House of Representatives Intelligence Committee.201

Challenge: Classified Evidence

Judge Lamberth decided to apply to this civil case the principles of the Classified

Information Procedures Act (CIPA),202which technically only applies to criminal

cases.203 Using CIPA procedures, the court determines what information must be

protected as classified and what unclassified substitutions redactions, summaries, or admissions can be used so that the case can proceed.204

The government appealed,205and the case settled while the appeal was pending. As a condition of settlement, Judge Lamberth vacated his order calling for

CIPA-like procedures, noting that a District Court s opinions are non- precedential and only persuasive authority anyway, his opinions on the matter

had already been published in the Federal Supplement, and [t]he reasoning is

unaltered, to the extent it is deemed persuasive by anyone. 206

The state secrets privilege is a judicial doctrine, and when the Court evaluates the privilege, its evaluation is not merely an academic exercise. When the privilege is denied, the

Court has the ability to order the information disclosed in litigation. Were the rule other-

 196. Horn, 636 F. Supp. 2d at 13 n.2; Opinion at 3, Horn, No. 1:94-cv-1756 (D.D.C. Feb. 6, 2009, refiled June 9, 2009) [hereinafter Feb. 6, 2009, Opinion]; Jan. 15, 2009, Opinion, supra note 

193, at 5 6.

197. Horn, 636 F. Supp. 2d at 13 14 n.2; Feb. 6, 2009, Opinion, supra note 196. Although Judge Lamberth had been told that Brown s name would forever be classified, his affiliation with the CIA was declassified so that he could cite his CIA experience in obtaining postretirement employement. Interview with Hon. Royce C. Lamberth, May 13, 2011.

198. Horn v. Huddle, 636 F. Supp. 2d 20, 21 (D.D.C. 2009); Horn, 636 F. Supp. 2d at 14.

199. Horn, 636 F. Supp. 2d at 21.

200. Horn v. Huddle, 699 F. Supp. 2d 236, 237 38 (D.D.C. 2010); Stipulation, Horn, No. 1:94-cv-1756 (D.D.C. Nov. 3, 2009); see U.S. to Pay $3 Million to Settle CIA Lawsuit, Wash. Post, Nov. 5, 2009, at A12.

201. Interview with Hon. Royce C. Lamberth, May 13, 2011.

202. 18 U.S.C. app. 3.

203. Horn v. Huddle, 647 F. Supp. 2d 55, 59 60 (D.D.C. 2009); Horn, 636 F. Supp. 2d at 14, 18 19.

204. Horn, 636 F. Supp. 2d at 18 19; see Reagan, supra note 173, at 8 18 (describing CIPA

procedures).

205. Docket Sheet, Horn v. Huddle, No. 09-5311 (D.C. Cir. Sept. 3, 2009).

206. Horn v. Huddle, 699 F. Supp. 2d 236, 238 (D.C. Cir. 2010).
24 National Security Case Management Studies (11/14/2011)

wise, the Executive Branch could immediately ensure that the state secrets privilege

was successfully invoked simply by classifying information, and the Executive s actions

would be beyond the purview of the judicial branch. This would of course usurp the judicial branch s obligation to say what the law is. 207 Although the government determined that the plaintiff s and defendants attorneys were eligible for security clearances, it determined that they did not have

a need to know classified information.208 Judge Lamberth overruled that determination.209

[T]he Executive must grant counsel for plaintiff and defendants, who have been favorably adjudicated for access to classified information, security clearances commensurate

with the level of information known by their clients. . . . It is important to remember that

at this juncture, the plaintiff, defendants, and their counsel, only have a need-to-know the

classified and/or privileged information already known to them or to their clients for purposes of allowing this lawsuit to proceed. If it is necessary to renew the security clearances of the plaintiff and defendants themselves in order to implement the lawful discussion of the information that will be contained in the filings in preparation of the CIPAlike proceedings, the Executive must do that as well.210 Challenge: Classified Arguments

Judge Lamberth ordered all filings made after the case became unsealed that

might include classified information to be filed with a classified information security officer; redacted versions were filed on the public docket after a classification

review.211

 207. Horn, 647 F. Supp. 2d at 62 63.

208. Id. at 63 n.11, 65 n.18; see Scarcella, supra note 176. 209. See Scarcella, supra note 176. 210. Horn, 647 F. Supp. 2d at 66; see Scarcella, supra note 176 ( The twist is that the classified information at issue resides in the memories of the plaintiff and the defendants themselves. (Lamberth s order does not compel the government to turn over documents.) ). 211. Horn v. Huddle, 636 F. Supp. 2d 20, 22 23 (D.D.C. 2009).
National Security Case Management Studies (11/14/2011) 25

Kenya and Tanzania

United States v. El-Hage (Leonard B. Sand, Kevin Thomas Duffy, and Lewis A. Kaplan, S.D.N.Y.)212

Bombs exploded outside the United States embassies in Nairobi, Kenya, and Dar

es Salaam, Tanzania, on August 7, 1998, killing 224 people, including 12 Americans.213 Eleven non-American deaths occurred in Tanzania; the other deaths occurred in Kenya.214

Nairobi

Pakistani authorities arrested Mohammed Saddiq Odeh on the day of the bombings for traveling with a fraudulent passport,215

and he quickly became a suspect

 212. An appeal was heard by Second Circuit Judges Wilfred Feinberg, Jon O. Newman, and

José A. Cabranes.

For this report, on November 4, 2009, Tim Reagan interviewed Judge Newman in Judge

Newman s Hartford chambers, and Judge Cabranes and his law clerk Matt McKenzie in Judge

Cabranes s New Haven chambers. 213. The 9/11 Commission Report 70 (2004); In re Terrorist Bombings of U.S. Embassies in

East Africa, 552 F.3d 93, 104 (2d Cir. 2008); United States v. Ghailani, 751 F. Supp. 2d 515, 521

(S.D.N.Y. 2010); United States v. Bin Laden, 397 F. Supp. 2d 465, 473 (S.D.N.Y. 2005); United 

States v. Bin Laden, 156 F. Supp. 2d 359, 362 (S.D.N.Y. 2001); United States v. El-Hage, 213

F.3d 74, 77 (2d Cir. 2000); United States v. Bin Laden, 91 F. Supp. 2d 600, 604, 606 (S.D.N.Y. 2000); United States v. Bin Laden, 92 F. Supp. 2d 225, 231 (S.D.N.Y. 2000); see Rick Lyman, Texans Cell Terror Suspect Apolitical, N.Y. Times, Sept. 20, 1998, at 126; James C. McKinley, Jr., Bombs Rip Apart 2 U.S. Embassies in Africa, N.Y. Times, Aug. 8, 1998, at A1; see also Soufan, supra note 64, at 14 (reporting that the bombings occurred two months after an ABC interview with Osama Bin Laden in which Bin Laden threatened, We anticipate a black future for

America. Instead of remaining United States, it shall end up separated states and shall have to carry the bodies of its sons back to America. ). The leadership decided that the attacks would occur on Friday, August 7, 1998, at 10:30

a.m., the time of day when Muslims are meant to be in the mosque at prayer. Therefore, al- Qaeda s theologians argued, anyone killed in the bombing could not be a real Muslim, as he wasn t at prayer, and so his death would be an acceptable consequence. Soufan, supra note 64, at 78.

An account of the bombings and the prosecution of the bombers was prepared by an American

anthropologist who survived the blast in Tanzania, but whose Kenyan husband died waiting for

her outside the embassy. Susan F. Hirsch, In the Moment of Greatest Calamity: Terrorism, Grief, and a Victim s Quest for Justice (2006). 214. See Raymond Bonner, Tanzania Charges Two in Bombing of American Embassy, N.Y. Times, Sept. 22, 1998, at A6; Soufan, supra note 64, at 80.

215. In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 177, 185 (2d Cir. 2008); In re Terrorist Bombings, 552 F.3d at 104; United States v. Bin Laden, 132 F. Supp. 2d

198 (S.D.N.Y. 2001); see Raymond Bonner, Pakistan Arrests Two New Suspects in Embassy

Blasts, N.Y. Times, Aug. 19, 1998, at A1; Bonner, supra note 214; Soufan, supra note 64, at 88

( Pakistani authorities had noticed that the picture on his passport was fraudulent ).
26 National Security Case Management Studies (11/14/2011)

in the Nairobi bombing.216 Kenyan authorities arrested Mohamed Rashed Daoud

al- Owhali on August 12, 1998, as another suspect in the bombing.217 Al- Owhali

admitted driving the bomb to the embassy in Kenya.218 Later that month, the suspects were moved to New York,219

and they were indicted on October 7.220 The 

United States decided to seek the death penalty against al- Owhali but not

Odeh.221

The government identified Haroun Fazil as another suspect in the Nairobi

bombing.222 It is believed that he drove a pickup truck to lead the vehicle carrying 

the bomb to the embassy.223 The government offered a $2 million reward for information leading to his arrest, but he has not been apprehended.224

 216. In re Terrorist Bombings, 552 F.3d at 185 (noting that one week after detention in Pakistan, Odeh was transferred to Kenyan authorities); see David Johnston, U.S. Says Suspect Does Not 

Admit Role in Bombings or Ties to Saudi, N.Y. Times, Aug. 18, 1998, at A7.

217. In re Terrorist Bombings, 552 F.3d at 181; In re Terrorist Bombings, 552 F.3d at 105;

United States v. Bin Laden, 132 F. Supp. 2d 168, 173 74 (S.D.N.Y. 2001); see David Johnston, Blast Suspect Held in U.S. and Is Said to Admit Role, N.Y. Times, Aug. 28, 1998, at A1; Soufan, supra note 64, at 85 87, 92.

218. See Johnston, supra note 217; see also In re Terrorist Bombings, 552 F.3d at 182 (noting

that al- Owhali s cooperation was contingent on his being tried in the United States, which he regarded as his enemy, instead of in Kenya, which he did not).

The court denied a motion to suppress this confession. Bin Laden, 132 F. Supp. 2d at 192 98; 

see Benjamin Weiser, Judge Extends Legal Rights Beyond U.S., N.Y. Times, Feb. 17, 2001, at B1; 

Benjamin Weiser, Kenya Statements in Terrorism Case Allowed by Judge, N.Y. Times, Jan. 30, 2001, at A1.

219. In re Terrorist Bombings, 552 F.3d at 105; Bin Laden, 132 F. Supp. 2d at 205; Bin Laden, 132 F. Supp. 2d at 178; see Dan Barry, With Suspect in Town, Giuliani Steps Up Security, N.Y. Times, Aug. 28, 1998, at A6; David Johnston, Charges Against 2d Suspect Detail Trial of Terrorists, N.Y. Times, Aug. 29, 1998, at A4; Soufan, supra note 64, at 90, 94.

220. In re Terrorist Bombings, 552 F.3d at 102; United States v. Bin Laden, 91 F. Supp. 2d

600, 606 (S.D.N.Y. 2000); see United States v. Bin Laden, 92 F. Supp. 2d 225, 231 (S.D.N.Y. 2000) (noting first court appearances on Oct. 8, 1998); see also H.L. Pohlman, Terrorism and the

Constitution 38 39 (2008) (discussing types of extraterritorial jurisdiction over crimes committed

abroad).

221. In re Terrorist Bombings, 552 F.3d at 105, 109; United States v. Bin Laden, 126 F. Supp. 2d 290 (S.D.N.Y. 2001) (noting June 28, 2000, filing of death penalty notice); United States v. Bin 

Laden, 126 F. Supp. 2d 256 (S.D.N.Y. 2000); see Benjamin Weiser, 4 Guilty in Terror Bombings

of 2 U.S. Embassies in Africa, N.Y. Times, May 30, 2001, at A1 [hereinafter 4 Guilty] (reporting

that prosecutors did not explain why they did not seek the death penalty against Odeh); Benjamin

Weiser, Defendant in Bombings Faking Illness, Judge Is Told, N.Y. Times, Dec. 12, 2000, at B3

[hereinafter Faking Illness]; Benjamin Weiser, U.S. to Seek Death Penalty for 2d Defendant in Blasts, N.Y. Times, June 14, 2000, at B3 [hereinafter 2d Death Penalty]; Benjamin Weiser, U.S. 

to Seek Death Penalty in Bombings, N.Y. Times, May 10, 2000, at B1.

222. See Benjamin Weiser, 2 New Suspects Linked by U.S. to Terror Case, N.Y. Times, Sept. 18, 1998, at A1 [hereinafter 2 New Suspects]; Benjamin Weiser, A Bin Laden Agent Left Angry

Record of Gripes and Fears, N.Y. Times, Dec. 2, 1998, at A1 [hereinafter Angry Record]. 223. See Weiser, 2 New Suspects, supra note 222; Weiser, Angry Record, supra note 222. 224. See Weiser, 2 New Suspects, supra note 222; Weiser, Angry Record, supra note 222; Benjamin Weiser, U.S. Charges Ex-Soldier, Calling Him Plotter with Bin Laden, N.Y. Times, May

20, 1999, at A12 [hereinafter U.S. Charges Ex-Soldier].
National Security Case Management Studies (11/14/2011) 27

On September 16, 1998, Wadih el-Hage, a naturalized U.S. citizen and resident of Arlington, Texas, who once shared a house with Fazil in Nairobi and who

once was Osama Bin Laden s personal secretary, was arrested immediately after

testifying before a grand jury.225 El-Hage, who also testified before a grand jury

about Bin Laden s activities a year earlier, was charged with making false statements to investigators and the grand jury.226 On October 7, charges against him

were broadened to include conspiracy to kill American citizens.227

The U.S. District Court for the Southern District of New York assigned the

case to Judge Leonard B. Sand.228

On October 24, 2000, el-Hage tried to plead guilty, but the court did not accept his plea, because Judge Sand determined that el-Hage was pleading guilty to

avoid the strip searches required every time he came to court rather than because 

he believed he was guilty.229

Dar es Salaam

On September 21, 1998, the government of Tanzania charged Mustafa Mahmoud

Said Ahmed and Rashid Saleh Hemed with the bombing of the American embas-

 225. In re Terrorist Bombings, 552 F.3d at 104; United States v. El-Hage, 213 F.3d 74, 77 (2d

Cir. 2000); Bin Laden, 91 F. Supp. 2d at 606; Bin Laden, 92 F. Supp. 2d at 231; Docket Sheet, United States v. El Hage, No. 1:98-cr-1023 (S.D.N.Y. Sept. 21, 1998) [hereinafter S.D.N.Y. El 

Hage Docket Sheet]; see Lyman, supra note 213; Weiser, 2 New Suspects, supra note 222; see 

also The 9/11 Commission Report 56 (2004) ( Hage was a U.S. citizen who had worked with Bin

Ladin in Afghanistan in the 1980s, and in 1992 he went to Sudan to become one of al Qaeda s

major financial operatives. ). 226. El-Hage, 213 F.3d at 77; Bin Laden, 91 F. Supp. 2d at 605 07 (noting that el-Hage appeared before the grand jury on Sept. 24, 1997); Bin Laden, 92 F. Supp. 2d at 231; S.D.N.Y. El 

Hage Docket Sheet, supra note 225 (noting criminal complaint filed on Sept. 17, 1998); Trying 

Cases Related to Allegations of Terrorism: Judges Roundtable, 77 Fordham L. Rev. 1, 12 (2008)

[hereinafter Trying Cases]; see Lyman, supra note 213; Weiser, 2 New Suspects, supra note 222. Judge Sand ultimately decided that el-Hage could not be prosecuted in the Southern District of

New York for false statements made to FBI agents in Texas. United States v. Bin Laden, 146 F. Supp. 2d 373 (S.D.N.Y. 2001).

227. In re Terrorist Bombings, 552 F.3d at 105; Bin Laden, 91 F. Supp. 2d at 605; see Benjamin Weiser, U.S. Closer to Tying Bin Laden to Embassy Bombings, N.Y. Times, Oct. 8, 1998, at

A3.

228. S.D.N.Y. El Hage Docket Sheet, supra note 225; United States v. Salim, 549 F.3d 67, 70

(2d Cir. 2008); see Benjamin Weiser, U.S. May Ask Death Penalty in Embassy Bombings, N.Y. Times, Oct. 9, 1998, at A10.

Tim Reagan interviewed Judge Sand for this report in the judge s chambers on June 25, 2007. The case originally was assigned to Judge John E. Sprizzo, S.D.N.Y. El Hage Docket Sheet, supra note 225, but Judge Sprizzo recused himself because he previously provided representation 

to Libya, see Benjamin Weiser, U.S. Asks British to Deliver Suspected Bin Laden Aide, N.Y. Times, Sept. 29, 1998, at A10 [hereinafter Deliver Aide].

229. S.D.N.Y. El Hage Docket Sheet, supra note 225; see Benjamin Weiser, Judge Rejects

Guilty Plea in Bomb Plot, N.Y. Times, Oct. 25, 2000, at B1.
28 National Security Case Management Studies (11/14/2011)

sy in Dar es Salaam.230 Tanzania dropped charges against Ahmed in March 

2000.231 After a four-year trial, Tanzania s High Court ruled in 2004 that the evidence did not support a conviction against Hemed.232

Khalfan Khamis Mohamed was arrested in Cape Town, South Africa, on October 5, 1999, flown to New York, and arraigned on October 8 for participation in 

the Dar es Salaam bombing.233 His attorney admitted at trial that K.K. Mohamed

helped assemble the bomb.234 The United States decided to seek the death penalty

against him.235 South Africa s Constitutional Court, its highest court, subsequently ruled that it was improper to turn Mohamed over to the United States for a

capital trial.236 Judge Sand ruled that the decision by the South African court did

not invalidate Mohamed s capital prosecution, but Mohamed could offer the decision as mitigating evidence.237

A Larger Plot

Osama Bin Laden was included in a November 4, 1998, superseding indictment,238 but he remained a fugitive until his killing by U.S. forces in 2011.239 Fa-

 230. See Bonner, supra note 214; see also James Risen & Benjamin Weiser, Before Bombings, 

Omens and Fears, N.Y. Times, Jan. 9, 1999, at A1 (reporting that in 1997 Ahmed warned the

American embassy in Kenya of a bomb plot).

231. See Charges Dropped in an Embassy Bombing, N.Y. Times, Mar. 20, 2000, at A5.

232. See Marc Lacey, Tanzania Releases Man Held in 98 Bombing, N.Y. Times, Dec. 23, 2004, at A11.

233. United States v. Bin Laden, 91 F. Supp. 2d 600, 604 n.3 (S.D.N.Y. 2000); United States

v. Bin Laden, 92 F. Supp. 2d 225, 231 (S.D.N.Y. 2000); see Benjamin Weiser, Man Charged in Bombing of U.S. Embassy in Africa, N.Y. Times, Oct. 9, 1999, at A4.

After the bombings, Mohamed fled Tanzania; he arrived in South Africa on August 16, 1998. United States v. Bin Laden, 156 F. Supp. 2d 359, 362 (S.D.N.Y. 2001). He used fraudulent documents and a false name to request political asylum, and he was arrested when the fraud was discovered. Id.

234. See Hirsch, supra note 213, at 69, 81 (reporting also that Mohamed was known as

K.K. ); Benjamin Weiser, Suspect Admits Helping Make Embassy Bomb, N.Y. Times Feb. 6, 2001, at A1 (reporting that Mohamed s attorney made the concession during opening arguments);

see also Bin Laden, 156 F. Supp. 2d at 362 63 ( During interrogation by American officials on

October 5 and 6, 1999, Khalfan Mohamed admitted to playing a role in the August 7, 1998, bombing of the American Embassy in Dar es Salaam. ). Judge Sand denied Mohamed s motion to suppress his admission to arresting authorities. Bin 

Laden, 156 F. Supp. 2d at 363.

235. United States v. Bin Laden, 126 F. Supp. 2d 290 (S.D.N.Y. 2001) (noting June 27, 2000, filing of a death penalty notice); United States v. Bin Laden, 126 F. Supp. 2d 256 (S.D.N.Y. 2000) 

(denying a claim that the death penalty certification was race-based); see Weiser, Faking Illness, supra note 221; Weiser, 2d Death Penalty, supra note 221. 236. Bin Laden, 156 F. Supp. 2d at 361 & n.1; see Hirsch, supra note 213, at 228; Benjamin 

Weiser, South Africa Regrets Its Role in a Defendant s Extradition, N.Y. Times, May 31, 2001, at

B4 (reporting that the May 28, 2001, ruling came too late to do Mr. Mohamed any good ). 237. Bin Laden, 156 F. Supp. 2d 359; see Hirsch, supra note 213, at 228 29.

238. The 9/11 Commission Report 128 (2004); see Soufan, supra note 64, at 72; Benjamin

Weiser, Saudi Is Indicted in Bomb Attacks on U.S. Embassies, N.Y. Times, Nov. 5, 1998, at A1.

Bin Laden was indicted two months before the embassy bombings, on June 10, 1998, for a

1993 killing of 18 American soldiers in Mogadishu, Somalia. Docket Sheet, United States v. Bin
National Security Case Management Studies (11/14/2011) 29

zul Abdullah Mohammed came to be regarded as the bombings mastermind, and 

he was killed a firefight in 2011 when he mistakenly came upon a security checkpoint in Mogadishu, Somalia, and tried to flee.240

Mamdouh Mahmud Salim, Osama Bin Laden s finance manager, was suspected of organizing the embassy bombings and was arrested in Munich, Germany, on September 16, 1998.241 German authorities handed him over to the U.S. government on December 20 on condition that he not face the death penalty.242

He first appeared before the district court on December 21.243 The government

charged him with four broad conspiracy counts.244

Khalid al-Fawwaz, who was reportedly a close friend of Osama Bin Laden s

and who ran Al-Qaeda s media operations, was arrested by British authorities in

September 1998.245 On June 19, 1999, the U.S. government indicted him for having a hand in the 1998 bombings.246 At the United States request, British authorities also arrested Ibrahim Hussein Eidarous and Adel Mohammed Abdul Bary on

 Laden, No. 1:98-cr-539 (S.D.N.Y. June 10, 1998); The 9/11 Commission Report 110 (2004); see

Soufan, supra note 64, at 72; Benjamin Weiser, Prosecutors Are Expected to Seek Dismissal of All 

Charges, N.Y. Times, May 4, 2011, at A11.

239. Nolle Prosequi, United States v. El Hage, No. 1:98-cr-1023 (S.D.N.Y. June 17, 2011)

(voluntarily dismissing indictments against Bin Laden); see Peter Baker & Helene Cooper, Bin 

Laden Killed by U.S. Forces in Pakistan, Obama Says, Declaring Justice Has Been Done, N.Y. Times, May 2, 2011, at A1; Nicholas Schmidle, Getting Bin Laden, New Yorker, Aug. 8, 2011, at

34; Soufan, supra note 64, at 532 36; Dana Priest Priest & William M. Arkin, Top Secret America 256 61 (2011); Benjamin Weiser, Federal Court Drops Charges Against Bin Laden, N.Y. Times, June 18, 2011, at A9; Scott Wilson & Craig Whitlock, U.S. Forces Kill Osama Bin Laden, Wash. Post, May 2, 2011, at A1.

240. See Jeffrey Gettleman, Somalis Kill Man Behind Bombings of U.S. Embassies, N.Y. Times, June 12, 2011, at A1 (reporting that Mohammed was one of the most wanted men in Africa and had a $5 million bounty on his head from the United States government ); Susan Raghavan, Alleged Plotter of 1998 Embassy Attacks Is Killed, Wash. Post, June 12, 2011, at A1 (reporting that Mohammed had topped the FBI s most-wanted list for nearly 13 years ). 241. United States v. Bin Laden, 160 F. Supp. 2d 670, 674 (S.D.N.Y. 2001); United States v. Bin Laden, 92 F. Supp. 2d 225, 231 (S.D.N.Y. 2000); S.D.N.Y. El Hage Docket Sheet, supra note 

225 (noting Sept. 14, 1998, complaint and arrest warrant against Salim); see Benjamin Weiser, Judge Orders Embassy Bomb Suspect Held Without Bail, N.Y. Times, Dec. 22, 1998, at B6 [hereinafter Held Without Bail]; Benjamin Weiser, U.S. Says Bin Laden Aide Tried to Get Nuclear Material, N.Y. Times, Sept. 26, 1998, at A3 [hereinafter Nuclear Material].

Judge Sand denied Salim s motion to suppress statements made while detained in Germany. Bin Laden, 160 F. Supp. 2d 670; see Court Won t Suppress Statement in Bombing, N.Y. Times, Aug. 25, 2001, at B3.

242. Bin Laden, 156 F. Supp. 2d at 370; see Weiser, Held Without Bail, supra note 241. 243. Bin Laden, 92 F. Supp. 2d at 231.

244. See Weiser, Held Without Bail, supra note 241; Weiser, Nuclear Material, supra note 241

(reporting the unsealing of charges on Sept. 25, 1998).

245. See Andrew Jacobs, U.S. Indicts 2 More Men in Bombing of Embassies, N.Y. Times, June 

17, 1999, at A17; Weiser, Angry Record, supra note 222; Weiser, Deliver Aide, supra note 228; 

Craig Whitlock, Extradition of Terror Suspects Founders, Wash. Post, Dec. 21, 2008, at A1.

246. See Jacobs, supra note 245.
30 National Security Case Management Studies (11/14/2011)

July 11, 1999.247 Britain s House of Lords ruled on December 17, 2001, that these

three suspects could be extradited to the United States,248 but the extradition has 

not yet happened.249 Eidarous died of leukemia on July 16, 2008, while under

house arrest in London.250

Ali A. Mohamed, a former sergeant in the U.S. Army, who previously was a

major in Egypt s army, was secretly charged with Al-Qaeda conspiracies in September 1998.251 He was formally indicted on May 19, 1999, after he refused to

cooperate in the tracking down of Osama Bin Laden, and he first appeared in

court on May 27.252 On October 20, 2000, he agreed to plead guilty.253 According 

to a former FBI agent, To date he is awaiting sentencing and is being held in a

secure location.254

Mohamed Suleiman al-Nalfi was lured from his home in Sudan and apprehended in Kenya in late 2000 by the United States.255 He was held in secret for

more than four months before charges against him were made public.256 In early

 247. See David Rohde, U.S. Says It Has Fingerprints of Embassy Bombing Suspects, N.Y. Times, July 13, 1999, at A6; Whitlock, supra note 245; see also Soufan, supra note 64, at 98 ( Although we had urged the British to arrest Fawwaz, Bary, and Eidarous in 1996, they had refused. ). 248. See Warren Hoge, Court Approves Extraditions in Bombings of U.S. Embassies, N.Y. Times, Dec. 18, 2001; Whitlock, supra note 245. 249. See Craig Whitlock, Britain Pays to Keep Suspects from U.S. Hands, Wash. Post, May 2, 2009, at A9; Whitlock, supra note 245. 250. Nolle Prosequi, United States v. El Hage, No. 1:98-cr-1023 (S.D.N.Y. Dec. 3, 2008); see 

Whitlock, supra note 245. 251. See Soufan, supra note 64, at 94; Benjamin Weiser, U.S. Ex-Sergeant Linked to Bin Laden Conspiracy, N.Y. Times, Oct. 30, 1998, at A1; see also The 9/11 Commission Report 68

(2004) (describing Ali Mohamed as a former Egyptian army officer who had moved to the United States in the mid-1980s, enlisted in the U.S. Army, and became an instructor at Fort Bragg );

Benjamin Weiser & James Risen, A Soldier s Shadowy Trail in U.S. and in the Mideast, N.Y. Times, Dec. 1, 1998, at A1 (reporting that Mohamed applied to be a CIA agent in 1984).

252. United States v. Bin Laden, 92 F. Supp. 2d 225, 231 (S.D.N.Y. 2000); see Benjamin 

Weiser, Indicted Ex-Sergeant Says He Knows Who Bombed U.S. Embassies, N.Y. Times, June 5, 1999, at A3 (reporting that Mohamed was also known as Abu Omar); Weiser, U.S. Charges Ex- Soldier, supra note 224. 253. S.D.N.Y. El Hage Docket Sheet, supra note 225; see Benjamin Weiser, Bin Laden Linked 

to Embassy Blast by an Ex-Soldier, N.Y. Times, Oct. 21, 2000, at A1.

Mohamed was not called as a witness at the trial of the other defendants. See Benjamin Weiser, 

Lawyers Seeking to Expose Plea Deal in Bombings Case, N.Y. Times, May 6, 2001, at 151.

254. Soufan, supra note 64, at 94.

255. See Benjamin Weiser, Qaeda Member Pleads Guilty to 1990s Conspiracy Charge, N.Y. Times, Feb. 1, 2003, at A13 [hereinafter Qaeda Member]; Benjamin Weiser, Terror Suspect Held

Secretly for 4 Months, N.Y. Times, Mar. 22, 2001, at B1 [hereinafter Held Secretly].

256. See Weiser, Qaeda Member, supra note 255; Weiser, Held Secretly, supra note 255.
National Security Case Management Studies (11/14/2011) 31

2003, he pleaded guilty

257

and was sentenced to 10 years and one month in prison.258

Among the 25 defendants indicted in the U.S. prosecution, many of whom

remain fugitives, is Ahmed Khalfan Ghailani.259 He was not captured until a raid

on his home in Pakistan in the summer of 2004.260 He was held in secret CIA

prisons until September 2006, when he was transferred to Guantánamo Bay.261

The U.S. government announced on March 31, 2008, that it would try Ghailani by 

military commission,262 but the following year the government decided to try him

in the Southern District of New York instead.263 On January 25, 2011, he was sentenced to life in prison for conspiracy to destroy buildings.264

A Prison Guard Is Stabbed

On November 1, 2000, Salim stabbed a prison guard with a sharpened comb when 

the guard escorted Salim back to retrieve some documents from the cell that Salim shared with K.K. Mohamed.265

 257. S.D.N.Y. El Hage Docket Sheet, supra note 225 (noting Jan. 31, 2003, guilty plea); In re

Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93, 138 (2d Cir. 2008) (noting 

February 2003 conviction); see Weiser, Qaeda Member, supra note 255. 258. S.D.N.Y. El Hage Docket Sheet, supra note 225; see Benjamin Weiser, 10 Years for al

Qaeda Operative, N.Y. Times, Feb. 25, 2003, at B4 (reporting a sentence of 10 years).

259. United States v. Ghailani, 751 F. Supp. 2d 515, 518 (S.D.N.Y. 2010); S.D.N.Y. El Hage

Docket Sheet, supra note 225; see William Glaberson, Guantánamo Detainee, Indicted in 98, Now Faces War Crimes Charges, N.Y. Times, Apr. 1, 2008, at A14.

260. Ghailani, 751 F. Supp. 2d at 518; United States v. Ghailani, 751 F. Supp. 2d 508, 509

(S.D.N.Y. 2010); United States v. Ghailani, 686 F. Supp. 2d 279, 283 84 (S.D.N.Y. 2009); see

Glaberson, supra note 259; Josh White & Joby Warrick, Detainee Is Charged with Capital Mur- der in Embassy Bombing, Wash. Post, Apr. 1, 2008, at A2.

261. Ghailani, 751 F. Supp. 2d at 518, 523 24; Ghailani, 751 F. Supp. 2d at 509 10; United 

States v. Ghailani, 751 F. Supp. 2d 502, 503 (S.D.N.Y. 2010); Ghailani, 686 F. Supp. 2d at 283

84; see Glaberson, supra note 259; White & Warrick, supra note 260. 262. Ghailani, 751 F. Supp. 2d at 525; see Glaberson, supra note 259; White & Warrick, supra

note 260. 263. Ghailani, 751 F. Supp. 2d at 518, 526; Ghailani, 751 F. Supp. 2d at 503; Ghailani, 686 F. 

Supp. 2d at 284; see William Glaberson, Detainee to Be Transferred to U.S. for Trial, N.Y. Times, 

May 22, 2009, at A16; Benjamin Weiser, A Row Over Who Will Represent Guantánamo Detainee, N.Y. Times, June 2, 2009, at A17.

264. Judgment, Ghailani, No. 1:98-cr-1023-9 (S.D.N.Y. Jan. 25, 2011) [hereinafter Ghailani

Judgment]; see Peter Finn, Embassy Bomber Receives Life Sentence, Wash. Post, Jan. 26, 2011, at

A2; Benjamin Weiser, Life Sentence Without Parole for Former Detainee, N.Y. Times, Jan. 26, 2011, at A18.

265. 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); United States v. Salim, 287 F. Supp. 2d 250, 259 (S.D.N.Y. 2003); United States v. Bin Laden, 160 F. Supp. 2d 670, 673

(S.D.N.Y. 2001); see Benjamin Weiser, 2 in Terror Case Suspected in Stabbing of Guard at Federal Jail, N.Y. Times, Nov. 2, 2000, at B7; Benjamin Weiser, Quandary in Terror Case, N.Y. Times, Nov. 12, 2000, at 139 [hereinafter Quandary].

The government argued that the stabbing was part of a plot to escape by taking hostages, but

the court found that the motive was to enable an attack on defense counsel so that they would be

dismissed. Salim, 287 F. Supp. 2d 250; see Benjamin Weiser, Government Says Attack on Guard
32 National Security Case Management Studies (11/14/2011)

When the defendants met with their attorneys, they were escorted from their cells to the

place where they met with the attorneys and were escorted back. Defendant Salim was

escorted back by a corrections officer who was well known to be kind. Protocol would

have called for the inmate, the defendant, to be put into the cell, the cell to be locked, with the corrections officer outside the cell, the defendant still handcuffed. Then the defendant was to put his hands through an opening left for that purpose and the cuffs to be

removed.

Well, Officer Louis Pepe didn t follow that protocol and took the handcuffs off Salim while he was still in the cell. Salim had taken a plastic comb and honed it into a knife 

and stabbed the corrections officer and inflicted a permanent brain injury to him.266 Because Salim s attorneys were both witnesses to the stabbing and potential

targets, the court discontinued their representation of Salim and severed his prosecution from the other defendants trial, which was scheduled to begin only two

months later.267 Both Salim and K.K. Mohamed were transferred to other jails,268

but only Salim was charged with the stabbing.269 The court assigned the prosecution of Salim for the stabbing to Judge Deborah A. Batts.270

Salim pleaded guilty on April 3, 2002, to attempted murder.271 Judge Batts

sentenced him to 32 years in prison,272 but the court of appeals concluded that a

 Was Part of Escape Plan, N.Y. Times, Dec. 21, 2000, at B3 [hereinafter Escape Plan] (reporting

on an alleged elaborate plot to take defense lawyers hostage to get themselves and possibly other

prisoners freed ); see also Benjamin Weiser, Man Called a Qaeda Founder Denies a Terror Link

to Assault, N.Y. Times, Sept. 5, 2002, at A20 (reporting Salim s one-time claim that he wanted to

break out and go to the United Nations to proclaim his innocence ). At K.K. Mohamed s sentencing hearing, [a] neurosurgeon testified [that the guard] suffered

severe brain damage and lost much of his ability to see and communicate. He also suffered a

stroke after surgery, the doctor said, and has partial paralysis in an arm and leg. Benjamin Weiser, Doctor Details Injuries Left in Jail Attack, N.Y. Times, June 26, 2001, at B4 [hereinafter Doctor Details Injuries].

266. Trying Cases, supra note 226, at 13 14.

267. Bin Laden, 160 F. Supp. 2d at 673; Trying Cases, supra note 226, at 12; see Hirsch, supra

note 213, at 213; Weiser, Quandary, supra note 265. 268. See Benjamin Weiser, Judge Orders Confiscation of Papers in Terrorism Case, N.Y. Times, Nov. 29, 2000, at B4.

269. Bin Laden, 160 F. Supp. 2d at 673; see Weiser, Escape Plan, supra note 265. Although the government did not charge Mohamed with participation in the stabbing, in an effort to persuade his sentencing jury to have him executed, the government argued that he participated in the stabbing. See Weiser, Doctor Details Injuries, supra note 265. 270. Salim, 549 F.3d at 70; Bin Laden, 160 F. Supp. 2d at 673 n.5; Docket Sheet, United States 

v. Salim, No. 1:01-cr-2 (S.D.N.Y. Jan. 3, 2001) [hereinafter S.D.N.Y. Salim Docket Sheet]; see 

Benjamin Weiser, Terror Suspect Fails in Ef ort to Move Other Trial, N.Y. Times, Mar. 31, 2001, at B6.

271. Salim, 549 F.3d at 70; United States v. Salim, 287 F. Supp. 2d 250, 259 (S.D.N.Y. 2003);

S.D.N.Y. Salim Docket Sheet, supra note 270; see Robert F. Worth, Man Admits Murder Attempt, N.Y. Times, Apr. 4, 2002, at B5.

272. Salim, 549 F.3d at 70; S.D.N.Y. Salim Docket Sheet, supra note 270 (also noting ordered 

restitution of $4,722,820); see Salim, 287 F. Supp. 2d 250 (finding facts for sentence calculation);

see also Susan Saulny, As Attacker Is Sentenced, Victim Vents Disgust and Is Ejected, N.Y. Times, 

May 4, 2004, at B3 (reporting that Judge Batts had to eject the victim from the court for disruptive 

behavior).
National Security Case Management Studies (11/14/2011) 33

terrorism enhancement did not require transnational conduct,273so Judge Batts 

resentenced Salim to life.274

The Main Trial

The trial against Odeh, al- Owhali, el-Hage, and K.K. Mohamed began with jury

selection on January 3, 2001.275 With the help of a jury questionnaire, Judge Sand

screened a jury pool of 1,302 people.276 Opening arguments began a month later, on February 5.277 Both Arabic and Kiswahili interpreters were required.278

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.279 The pins helped the deputy marshals identify victims for appropriate seating, but Judge Sand ordered that the pins not be worn after defense counsel argued that they would improperly influence the jurors.280

Closing arguments began on May 1,281and the jury began its deliberations on

May 10.282 All four defendants were convicted of all charges on May 29.283

 273. Salim, 549 F.3d 67 (resolving United States v. Salim, No. 04-2643 (2d Cir. Apr. 7, 

2004)), cert. denied, ___ U.S. ___, 130 S. Ct. 325 (2009); see Benjamin Weiser, Panel Rules Jail 

Stabbing Constituted Terrorism, N.Y. Times, Dec. 3, 2008, at A28.

274. S.D.N.Y. Salim Docket Sheet, supra note 270; see Benjamin Weiser, Reputed Bin Laden Adviser Gets Life Term in Stabbing, N.Y. Times, Sept. 1, 2010, at A18.

275. In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93, 102, 106 (2d Cir. 

2008); United States v. Bin Laden, 156 F. Supp. 2d 359, 363 (S.D.N.Y. 2001); United States v. Bin Laden, 132 F. Supp. 2d 168, 172 (S.D.N.Y. 2001); S.D.N.Y. El Hage Docket Sheet, supra

note 225; Trying Cases, supra note 226, at 12; see Benjamin Weiser, First Day of Jury Selection

in U.S. Embassy Bombings, N.Y. Times, Jan. 3, 2001, at B3; see also Anthony D. Romero & Dina 

Temple-Raston, In Defense of Our America 1 (2007) (describing the case as the United States of

America s first comprehensive attempt to prosecute the growing menace of Islamic extremism in a

court of law ). 276. Leonard B. Sand, United States v. El Hage: Jury Questionnaire (Jan. 3, 2001); Trying 

Cases, supra note 226, at 12; Interview with Hon. Leonard B. Sand, June 25, 2007; see Alan Feuer, Jury Questionnaire Fills in a Few Blanks, N.Y. Times, Feb. 8, 2001, at B8.

According to Judge Sand, the questionnaire and voir dire caused many jurors to assume that

the court would tell them what penalty would go with each crime, and did not make clear that ultimate decisions on the death penalty would be for the jury to make. Interview with Hon. Leonard

B. Sand, June 25, 2007.

277. In re Terrorist Bombings, 552 F.3d at 102, 106; Bin Laden, 156 F. Supp. 2d at 363.

278. Interview with Hon. Leonard B. Sand, June 25, 2007.

279. See Hirsch, supra note 213, at 72.

280. See id. at 72 73.

281. See Benjamin Weiser, Conspiracy by Bin Laden Is Described, N.Y. Times, May 2, 2001, at B1.

282. See Jury Gets Terror Case, N.Y. Times, May 11, 2001, at B6; Hirsch, supra note 213, at

177 (reporting that jury deliberations were interrupted by dental work and a house closing).

283. In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93, 101 02, 107 (2d

Cir. 2008); United States v. Bin Laden, 397 F. Supp. 2d 465, 473 (S.D.N.Y. 2005); United States

v. Bin Laden, 160 F. Supp. 2d 670, 673 n.5 (S.D.N.Y. 2001); United States v. Bin Laden, 156 F. Supp. 2d 359, 361, 363 (S.D.N.Y. 2001); S.D.N.Y. El Hage Docket Sheet, supra note 225; Trying 

Cases, supra note 226, at 12; see Hirsch, supra note 213, at 179 80; Weiser, 4 Guilty, supra note 

221 (reporting also that none of the defendants testified).
34 National Security Case Management Studies (11/14/2011)

Judge Sand granted al- Owhali and K.K. Mohamed separate death penalty

hearings.284 First came al- Owhali s hearing the first death penalty hearing in 

the Southern District of New York since the 1950s and the jury began to deliberate on his sentence on June 5, 2001.285 On June 12, the jury announced that it

was deadlocked, which meant that al- Owhali would be imprisoned for life without the possibility of release.286 The jury began to deliberate on K.K. Mohamed s

sentence on July 5287 and announced a deadlock on July 10.288

On October 18, 2001, Judge Sand sentenced each of the four defendants to life 

in prison without the possibility of release.289 Because of the intervening and

 It was reported that initially five jurors voted to acquit el-Hage. Benjamin Weiser, A Jury Torn 

and Fearful in 2001 Terrorism Trial, N.Y. Times, Jan. 5, 2003, at 11 [hereinafter Jury Torn].

284. Bin Laden, 156 F. Supp. 2d at 361 n.2; Trying Cases, supra note 226, at 12; see Benjamin 

Weiser, McVeigh Execution Casts Shadow on Embassy Terror Trial, N.Y. Times, Apr. 24, 2001, at B2 (reporting on Judge Sand s Apr. 23, 2001, ruling). 285. See Hirsch, supra note 213, at 186; Benjamin Weiser, Jury Weighs Death Penalty for Bomber, N.Y. Times, June 6, 2001, at B4.

The last execution in New York was the 1954 execution of Gerhard Puff, who was executed a

year after Julius and Ethel Rosenberg. See Benjamin Weiser, Reno Allows First U.S. Death Penalty Trial in Manhattan in Decades, N.Y. Times, Nov. 20, 1997, at B1 [hereinafter Reno Allows]. 

Attorney General Janet Reno authorized capital prosecutions of John Cuff, Deric Frank, and Clarence Heatley in 1997, but they pleaded guilty and avoided capital sentencing trials. See 25-Year 

Sentence for Ex-Girlfriend s Death, N.Y. Times, Jan. 30, 2000, at 133; Benjamin Weiser, Former 

Of icer Gets a Life Term for 10 Murders in a Drug Gang, N.Y. Times, Mar. 23, 1999, at B1; Benjamin Weiser, Gang Leader, in Plea Deal, Admits to Role in 13 Killings, N.Y. Times, Feb. 6, 1999, at B2; Weiser, Reno Allows, supra; Benjamin Weiser, Reno Authorizes a Second Death Pe- nalty Case for Prosecutors in Manhattan, N.Y. Times, Nov. 21, 1997, at B4. The first federal defendant sentenced to death in New York since Puff was Ronell Wilson, whom a jury voted to execute on January 30, 2007, in the Eastern District of New York. Judgment, United States v. Wilson, No. 1:04-cr-01016 (E.D.N.Y. Mar. 29, 2007); see Michael Brick, Jury Agrees on Death Sentence for the Killer of Two Detectives, N.Y. Times, Jan. 31, 2007, at A1. The court of appeals, however, vacated the sentence on June 30, 2010. United States v. Whitten, 610 F.3d 168 (2d Cir. 2010); see Manny Fernandez & A.G. Sulzberger, U.S. Court Strikes Down Death Penalty for Officers Killer, N.Y. Times, July 1, 2010, at A20.

286. In re Terrorist Bombings, 552 F.3d at 101, 107; Bin Laden, 156 F. Supp. 2d at 361 n.2;

see Benjamin Weiser, Life for Terrorist in Embassy Attack, N.Y. Times, June 13, 2001, at A1 (reporting that 10 jurors concluded that execution would make the defendant a martyr and that five

jurors decided that life in prison would be the greater punishment); Hirsch, supra note 213, at

201 03 (same, reporting also that before announcing their verdict, the jurors requested a copy of

the oath they had taken).

It was reported that the vote was nine to three in favor of execution. Benjamin Weiser, 4 Are

Sentenced to Life in Prison in 1998 U.S. Embassy Bombings, N.Y. Times, Oct. 19, 2001, at A1

[hereinafter 4 Are Sentenced]; Weiser, Jury Torn, supra note 283. 287. See Benjamin Weiser, Terror Jury Deliberates, N.Y. Times, July 6, 2001, at B5.

288. Bin Laden, 156 F. Supp. 2d at 362 63; see Benjamin Weiser, Jury Rejects Death Penalty

for Terrorist, N.Y. Times, July 11, 2001, at B1 (reporting that seven jurors concluded that execution would make the defendant a martyr).

289. S.D.N.Y. El Hage Docket Sheet, supra note 225; In re Terrorist Bombings, 552 F.3d at

102, 102; United States v. Bin Laden, 397 F. Supp. 2d 465, 474 (S.D.N.Y. 2005); see Soufan, supra note 64, at 94; Weiser, 4 Are Sentenced, supra note 286.
National Security Case Management Studies (11/14/2011) 35

nearby attacks on September 11, 2001, court security on the day of sentencing

was substantially enhanced.290

The defendants, including Salim, ultimately were sent to serve their sentences

at the Administrative Maximum Facility, or Super Max, in Florence, Colorado.291

New Trial Denied

On January 23, 2002, Judge Kevin Thomas Duffy took over for Judge Sand with

respect to further proceedings in prosecutions for the embassy bombings.292 That 

same month, prosecutors learned that the United States Marshals Service had

many hours of videotape recordings of interviews with the government s first

witness, an informant named Jamal Ahmed al-Fadl, that should have been turned

over to el-Hage s attorneys for preparation of cross-examination.293 In response to

el-Hage s motion for a new trial, Judge Duffy wrote, Through a mixture of inaction, incompetence and stonewalling to cover up their mistakes, the United States

Marshals Service and the Department of Justice s Office of Enforcement Operations have seriously jeopardized the convictions of Al-Qaeda terrorist Wadih El- Hage. 294

Al-Fadl was in the Witness Security Program, living in a secret location.295

Prosecutors had arranged for a videoconference connection to al-Fadl, and the

Marshals Service had recorded videoconferences with al-Fadl without the prosecutors knowledge.296 Prosecutors received copies of the videotapes from the

Marshals Service and provided defense counsel with transcripts, redacting various portions to protect the identities of certain individuals and to protect operation 

information that they believed was not subject to discovery. 297 On October 24, 2003, el-Hage moved for a new trial.298

Judge Duffy concluded that although this material would have fueled a significant attack on al-Fadl s credibility, it would not have directly contradicted the

 290. See Hirsch, supra note 213, at 244; Weiser, 4 Are Sentenced, supra note 286 ( The building resembled a military base, with federal marshals carrying shotguns, public entrances closed

and the screening of visitors increased. ). 291. http://www.bop.gov (al- Owhali reg. no. 42371-054; Odeh reg. no. 42375-054; el-Hage 

reg. no. 42393-054; Salim reg. no. 42426-054; Mohamed reg. no. 44623-054); see Benjamin 

Weiser, Prison Switch for Terrorists in Bombings, N.Y. Times, Dec. 25, 2001, at B6.

292. S.D.N.Y. El Hage Docket Sheet, supra note 225; In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 157, 165 (2d Cir. 2008); In re Terrorist Bombings, 552 F.3d at

101 n.2, 141 n.41; Trying Cases, supra note 226, at 12; see Embassy Bombings Case Goes to New

Judge, N.Y. Times, Jan. 26, 2002, at A9; Hirsch, supra note 213, at 258.

293. In re Terrorist Bombings, 552 F.3d at 140 43; Bin Laden, 397 F. Supp. 2d at 474 81, 

518; Trying Cases, supra note 226, at 12; see Benjamin Weiser, U.S. Videos of Qaeda Informer Offer Glimpse Into a Secret Life, N.Y. Times, May 1, 2004, at A1 [hereinafter Qaeda Informer].

294. Bin Laden, 397 F. Supp. 2d at 473.

295. In re Terrorist Bombings, 552 F.3d at 142; Bin Laden, 397 F. Supp. 2d at 474; see Weiser, Qaeda Informer, supra note 293. 296. In re Terrorist Bombings, 552 F.3d at 142; Bin Laden, 397 F. Supp. 2d at 475 76.

297. Bin Laden, 397 F. Supp. 2d at 478.

298. In re Terrorist Bombings, 552 F.3d at 108, 141; Bin Laden, 397 F. Supp. 2d at 474, 478.
36 National Security Case Management Studies (11/14/2011)

government s case, and appears to fall within the general rule that undisclosed

impeachment material generally does not warrant a new trial. 299 The court of appeals affirmed.300

All four defendants appealed their convictions,301 but K.K. Mohamed withdrew his appeal.302

After the trial, the New York Times published an article based on interviews

with nine of the 12 jurors.303 The story reported that two jurors sought outside religious guidance on their sentence verdicts, one juror did legal research on the Internet, and some jurors were aware that the defendants were shackled under the

defense table.304 Judge Duffy determined that the article entitled el-Hage to neither a new trial nor an evidentiary hearing.305

On November 24, 2008, the court of appeals affirmed the convictions of

Odeh, al- Owhali, and el-Hage.306

Another Defendant

Nearly 11 years after the embassy bombings, Ghailani, the ninth defendant in the

third superseding indictment filed on December 16, 1998, was transferred from

the detention camp at Guantánamo Bay, Cuba, to the Southern District of New

 299. Bin Laden, 397 F. Supp. 2d at 515.

300. In re Terrorist Bombings, 552 F.3d at 140 46, 156, cert. denied, ___ U.S. ___, 130 S. Ct. 1050 (2010).

301. Docket Sheet, United States v. Mohamed, No. 01-1571 (2d Cir. Nov. 1, 2001) [hereinafter 

2d Cir. Mohamed Docket Sheet] (appeal by Mohamed); Docket Sheet, United States v. Odeh, No. 01-1553 (2d Cir. Oct. 24, 2001) (appeal by Odeh); Docket Sheet, United States v. El Hage, No. 01-1550 (2d Cir. Oct. 25, 2001) (appeal by el-Hage); Docket Sheet, United States v. Al- Owhali, No. 01-1535 (2d Cir. Oct. 19, 2001) (lead case, appeal by al- Owhali); see Weiser, Jury Torn, supra note 283. 302. In re Terrorist Bombings, 552 F.3d at 101 n.1; 2d Cir. Mohamed Docket Sheet, supra 

note 301 (noting a Jan. 21, 2004, order that the appeal was withdrawn with prejudice); see Benjamin Weiser, 3 Seek Retrial in Bombing of Embassies, N.Y. Times, Jan. 23, 2004, at B4.

303. Weiser, Jury Torn, supra note 283 (reporting that one juror could not be found and two

jurors declined interviews).

304. Id.; see United States v. Bin Laden, No. 1:98-cr-1023, 2005 WL 287404, at *2 (S.D.N.Y. Feb. 7, 2005); Weiser, supra note 302; Benjamin Weiser, Jury Behavior Raises Issues in Terror Case, N.Y. Times, Jan. 16, 2003, at B1.

305. Bin Laden, No. 1:98-cr-1023, 2005 WL 287404.

306. In re Terrorist Bombings, 552 F.3d at 102, 108, 156; see Benjamin Weiser, Warrantless 

Searches of Americans Are Legal Overseas, Court Panel Rules, N.Y. Times, Nov. 25, 2008, at

A19.

Al- Owhali obtained a remand to the district court for proceedings on the effect of new evidence on the validity of his confession. 2d Cir. Al- Owhali Docket Sheet, supra note 301 (noting a 

remand on Apr. 30, 2009). On February 16, 2010, Judge Duffy denied al- Owhali relief. Opinion, United States v. El Hage, No. 1:98-cr-1023 (S.D.N.Y. Feb. 16, 2010), af d, In re Terrorist Bombings of U.S. Embassies in East Africa, 407 F. App x. 548 (2d Cir. 2011).

Al- Owhali and Odeh s petitions for writs of certiorari were denied. Al- Owhali v. United

States, ___ U.S. ___, 129 S. Ct. 2778 (2009); Odeh v. United States, ___ U.S. ___, 129 S. Ct. 2765 (2009).
National Security Case Management Studies (11/14/2011) 37

York.307 Ghailani s alleged role was to obtain explosives and transport them to

Dar es Salaam.308

Ghailani grew up in Zanzibar, and after the embassy bombings he reportedly 

became a cook for Osama Bin Laden.309 He was arrested [in August 2004] after 

a 14-hour gun battle with the Pakistan authorities, in which he received a shrapnel 

wound. 310

On June 15, 2009, the case was transferred to Judge Lewis A. Kaplan.311

Judge Kaplan determined that the interval between Ghailani s indictment and his

presentation to the court for prosecution did not violate a Sixth Amendment right

to a speedy trial.312 Although the time since his transfer from CIA to military custody implicated his speedy trial right,313 he was not substantially prejudiced by the 

delay.314

Judge Kaplan also rejected Ghailani s argument that the indictment should be

dismissed because of his alleged torture by the CIA while in its custody, because 

if Ghailani s allegation is true then the proper remedy is money damages or

criminal prosecution of the offending officers. 315

Jury selection began on September 22.316 Judge Kaplan used a jury questionnaire,317 but he did not want the questionnaire to deprive the court of the benefits

of oral voir dire:

 307. United States v. Ghailani, 751 F. Supp. 2d 515, 518, 521, 529 (S.D.N.Y. 2010); United 

States v. Ghailani, 751 F. Supp. 2d 508, 509 10 (S.D.N.Y. 2010); United States v. Ghailani, 751

F. Supp. 2d 502, 503 (S.D.N.Y. 2010); see Peter Finn, Guantanamo Bay Detainee Brought to U.S. 

for Trial, Wash. Post, June 10, 2009, at A1; Carol Rosenberg, First Guantanamo Detainee Moved

to U.S., Pleads Not Guilty, Miami Herald, June 10, 2009, at 3A; Benjamin Weiser, In U.S. Court, Guantánamo Detainee Pleads Not Guilty to Embassy Bombing Charges, N.Y. Times, June 10, 2009, at A24.

308. United States v. Ghailani, 743 F. Supp. 2d 261, 265 (S.D.N.Y. 2010); United States v. Ghailani, 743 F. Supp. 2d 242, 247 (S.D.N.Y. 2010).

309. See Benjamin Weiser, Conspirator s Path from Poverty as a Boy in Zanzibar to Bin Laden s Side, N.Y. Times, Jan. 24, 2011, at A19.

310. Id.

311. S.D.N.Y. El Hage Docket Sheet, supra note 225. Tim Reagan interviewed Judge Kaplan for this report in the judge s chambers on November 5, 2009.

312. Ghailani, 751 F. Supp. 2d 515; see Peter Finn, Delay in Prosecution Didn t Violate Detainee s Rights, Judge Rules, N.Y. Times, July 14, 2010, at A6; Benjamin Weiser, Judge Refuses

to Dismiss Terror Suspect s Case, N.Y. Times, July 14, 2010, at A19.

313. Ghailani, 751 F. Supp. 2d at 533 40.

314. Id. at 520, 531 34.

315. United States v. Ghailani, 751 F. Supp. 2d 502, 506 (S.D.N.Y. 2010); see Benjamin 

Weiser, No Dismissal in Terror Case on Claim of Torture in Jail, N.Y. Times, May 11, 2010, at

A18.

316. See Lewis A Kaplan, United States v. Ghailani: Preliminary Remarks to Venire (Sept. 23, 

2010) [hereinafter Ghailani Preliminary Remarks] (derived from morning session of second day

of reports by potential jurors).

317. Lewis A. Kaplan, United States v. Ghailani: Jury Questionnaire (Sept. 22, 2010); Ghailani Preliminary Remarks, supra note 316; see United States v. Ghailani, 743 F. Supp. 2d 242, 247

n.1 (S.D.N.Y. 2010); see also Benjamin Weiser & Colin Moynihan, Glimpse at Jurors in Ex-
38 National Security Case Management Studies (11/14/2011)

While the Court recognizes that eliciting pedigree information about prospective jurors by written questionnaire would be more efficient [than] doing so by oral voir dire, there is much to be said also for doing it orally. Affording an opportunity for prospective

jurors to speak orally in the presence of the parties about familiar matters such as their

backgrounds, education, employment and families may help make them sufficiently comfortable to be more responsive with respect to more sensitive matters. In any case, it gives 

the parties more of an impression of the individuals than would questionnaire answers

alone.318 Voir dire began on September 29.319 Judge Kaplan appointed counsel to represent

one of the jurors, whose employer apparently illegally refused to excuse the juror s absence from work.320

The trial began on October 12.321 Judge Kaplan reserved some seats in the

courtroom for the news media.322 On November 17, the jury found Ghailani guilty 

on one count of conspiracy to destroy buildings but not guilty of the remaining

281 counts, including separate counts of murder for each of the persons killed at

the two embassies.323 Judge Kaplan sentenced Ghailani to life in prison.324 An appeal is pending.325

A Challenge to Prison Security Measures

On December 17, 2007, K.K. Mohamed submitted to the U.S. District Court for

the District of Colorado a pro se complaint alleging improper conditions of confinement.326 Magistrate Judge Boyd N. Boland reviewed the complaint and, on 

December 27, ordered it filed.327 On September 29, 2011, District Judge Marcia

S. Krieger dismissed most claims, but she ruled that the complaint, as amended,

 Detainee s Trial, N.Y. Times, Oct. 14, 2010, at A33 ( The 11-page questionnaire, filled out by

more than 1,000 potential jurors, included more than 30 questions. ). 318. Order, United States v. Ghailani, No. 1:98-cr-1023-9 (S.D.N.Y. Aug. 20, 2010).

319. S.D.N.Y. El Hage Docket Sheet, supra note 225. 320. Order, Ghailani, No. 1:98-cr-1023-9 (S.D.N.Y. Oct. 14, 2010).

321. S.D.N.Y. El Hage Docket Sheet, supra note 225; see Benjamin Weiser, Trial of Man Held at Guantánamo Opens, but Guantánamo Isn t Mentioned, N.Y. Times, Oct. 13, 2010, at

A19.

322. Order, Ghailani, No. 1:98-cr-1023-9 (S.D.N.Y. Sept. 22, 2010).

323. S.D.N.Y. El Hage Docket Sheet, supra note 225; see Peter Finn, Terror Detainee Largely 

Acquitted, Wash. Post, Nov. 18, 2010, at A1; Carol Rosenberg, Guantánamo Detainee s Verdict a

Test for War Court vs. Civilian Trial, Miami Herald, Nov. 18, 2010, at 1A; Benjamin Weiser, U.S. 

Jury Acquits Former Detainee of Most Charges, N.Y. Times, Nov. 18, 2010, at A1.

324. Ghailani Judgment, supra note 264; see Finn, supra note 264; Weiser, supra note 264. Ghailani is serving his sentence with the other embassy bombing defendants at the Super Max

prison in Florence, Colorado. http://www.bop.gov (reg. no. 02476-748); see Benjamin Weiser, Heightened Security for a Former Detainee, N.Y. Times, June 10, 2011, at A23.

325. Docket Sheet, United States v. Ghailani, No. 11-320 (2d Cir. Jan. 28, 2011) (noting that

the appellate brief is due Jan. 17, 2012).

326. Complaint, Mohammed v. Gonzales, No. 1:07-cv-2697 (D. Colo. Dec. 27, 2007); see

John Schwartz & Benjamin Weiser, Judge Allows Trial on Terrorist s Challenge to Prison Rules, N.Y. Times, Oct. 4, 2011, at A23.

327. Order, Mohammed v. Mukasey, No. 1:07-cv-2697 (D. Colo. Dec. 27, 2007).
National Security Case Management Studies (11/14/2011) 39

alleged a potentially valid violation of the First Amendment.328 Pursuant to the

prison s Special Administrative Measures as applied to Mohamed, (1) the prisoner was permitted communication and visitation only with immediate family members and not with nieces, nephews, and in-laws; and (2) his mail could be held for

surveillance for up to two weeks if written in English and up to two months if

written in other languages.329

Challenge: Attorney Client Contacts

In detention, the original defendants were cut off from virtually all communications.330 They were permitted to meet with their attorneys, but the attorneys were

prohibited from sharing anything said in the meetings with investigators or experts, which seriously hampered the preparation of a defense.331 In response to

complaints by defense attorneys, Judge Sand visited the jail and approved the detention conditions, except that he ordered that the defendants be permitted to call

their families three times a month instead of once.332

Attorney client communications were also impaired by the fact that defense

counsel could not discuss classified evidence with their clients because the defendants did not have security clearances.333 The court of appeals affirmed Judge

Sand s ruling that failure to share classified information with the defendants, as

opposed to their cleared counsel, did not violate the Constitution.334

Relations between defendants and assigned counsel are often difficult; they

were particularly so in this case: 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. 335

 328. Opinion at 15 22, 32, Mohammed v. Holder, id. (Sept. 29, 2011) [hereinafter Mohammed

Opinion], available at 2011 WL 4501959; see Schwartz & Weiser, supra note 326. 329. Mohammed Opinion, supra note 328, at 15, 17; Schwartz & Weiser, supra note 326. 330. United States v. Bin Laden, 92 F. Supp. 2d 225, 231 32 (S.D.N.Y. 2000) (describing

special conditions of confinement ); see Benjamin Weiser, Bombing Suspects Are Isolated in New York Jail, N.Y. Times, Oct. 27, 1998, at A8 [hereinafter Suspects Isolated]; Benjamin Weiser, Judge to Hear Complaints on Jail Rules, N.Y. Times, Nov. 11, 1998, at B3 [hereinafter Judge 

to Hear Complaints]; Benjamin Weiser, Lawyers for Bombing Suspects Say Jail Rules Violate

Rights, N.Y. Times, Nov. 10, 1998, at B4 [hereinafter Rules Violate Rights]. 331. See Weiser, Suspects Isolated, supra note 330; Weiser, Judge to Hear Complaints, supra

note 330; Weiser, Rules Violate Rights, supra note 330. 332. United States v. El-Hage, 213 F.3d 74, 77 (2d Cir. 2000) (affirming Judge Sand s approving the conditions of confinement); see Benjamin Weiser, Judge Won t Ease Jail Restrictions on Men Held in Bombings of U.S. Embassies, N.Y. Times, Nov. 19, 1998, at B9.

333. In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93, 116 23 (2d Cir. 2008); United States v. Bin Laden, No. 1:98-cr-1023, 2001 WL 66393 (S.D.N.Y. Jan. 25, 2001);

Leonard B. Sand, United States v. El Hage: Protective Order ¶ 15 (July 29, 1999) [hereinafter El 

Hage Protective Order]; see Gross, supra note 26, at 12.

334. In re Terrorist Bombings, 552 F.3d at 115 30, 156; Bin Laden, No. 1:98-cr-1023, 2001

WL 66393; see Weiser, supra note 306. 335. Trying Cases, supra note 226, at 13.
40 National Security Case Management Studies (11/14/2011)

Although circumstances suggested that Salim meant to do his attorneys harm, Ghailani s confidence in his military commission attorneys was so great that he

asked Judge Kaplan to order the Secretary of Defense to continue their representation of him in New York.336 Although the Secretary was not a party to the case, Judge Kaplan agreed to consider the motion.337 Judge Kaplan ruled that although

an indigent defendant has a constitutional right to effective assistance of counsel, the indigent defendant does not have a constitutional right to select counsel.338

Ghailani s dissatisfaction with one of his appointed New York attorneys resulted in the court s dismissing the attorney from the case.339

Challenge: Mental Health During Detention

After several months of restrictive confinement, el-Hage angrily criticized Judge

Sand during a hearing for not reading a letter el-Hage had prepared that pro- claimed his innocence and contended that the United States could have prevented

the embassy bombings.340 Deputy marshals restrained el-Hage when he leapt from 

his chair in the courtroom and appeared to charge toward the judge.341 Approximately six months later, a psychiatrist reported that el-Hage s solitary confinement was seriously impairing his mental health.342 The government 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.343

After the prison guard was stabbed, an incident not involving el-Hage, the

prison removed el-Hage s possessions and privileges.344 According to his wife, his mental state deteriorated sharply and he stopped recognizing his attorney.345

However, two court-appointed psychiatrists and a court-appointed psychologist

 336. Motion, United States v. El Hage, No. 1:98-cr-1023 (S.D.N.Y. Oct. 7, 2009).

337. United States v. Ghailani, 686 F. Supp. 2d 279, 285 97 (S.D.N.Y. 2009); id. at 297

( Ghailani asks this Court to decide only the constitutional effect of the Secretary s intended action, not the propriety or wisdom of his decision to act in that manner. ). 338. Ghailani, 686 F. Supp. 2d at 298 300; see Benjamin Weiser, Terrorism Suspect Can t

Keep His Military Lawyers, Judge Rules, N.Y. Times, Nov. 19, 2009, at A25.

339. United States v. Ghailani, 751 F. Supp. 2d 515, 537 n.126 (S.D.N.Y. 2010).

340. In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93, 149 (2d Cir. 2008); see Benjamin Weiser, Suspect in Embassy Bombings Avows Innocence in Letters to Relatives, N.Y. Times, June 25, 1999, at B5 [hereinafter Suspect Avows Innocence]; Benjamin Weiser, Terrorism Suspect Charges Toward Judge, but Is Tackled, N.Y. Times, June 23, 1999, at B6 [hereinafter Suspect Charges]. 341. In re Terrorist Bombings, 552 F.3d at 149 50; Trying Cases, supra note 226, at 13; see 

Weiser, Suspect Avows Innocence, supra note 340; Weiser, Suspect Charges, supra note 340. 342. See Benjamin Weiser, Report Says Isolation Takes Toll on Terrorism Suspect, N.Y. Times, Dec. 15, 1999, at B20.

343. See Benjamin Weiser, Judge Upholds Strict Jail Conditions for Suspect in Bin Laden Case, N.Y. Times, Jan. 11, 2000, at B7; Weiser, supra note 342. 344. See Lowell Bergman & Benjamin Weiser, Suspect in Terror Case Is Mistreated, Wife

Says, N.Y. Times, Nov. 22, 2000, at B4.

345. See id.
National Security Case Management Studies (11/14/2011) 41

determined that el-Hage was faking mental illness.346 Judge Sand decided that the

expert opinions were well founded and that el-Hage was competent to stand

trial.347

During Ghailani s pretrial phase, he unsuccessfully moved for proscriptions

on the strip and visual body cavity searches performed every time he left the detention center for a court appearance.348 Judge Kaplan found that such searches

apply without exception to all inmates at the Metropolitan Correctional Center in

Manhattan.349 Ghailani claimed that he could tolerate these invasions of his dignity until the ninth occasion of the search in which he was required to not only display his bare buttocks but open himself to allow a visual rectal cavity inspection. 350 Between the time of search to which he objected and the time of Judge

Kaplan s ruling, Ghailani agreed to come to court to attend a proceeding only

once.351 A psychologist testified that the stress of the searches was exacerbated by 

post-traumatic stress disorder resulting from enhanced interrogation techniques

during his CIA custody, the details of which are classified.352

Judge Kaplan ruled that the government had made a credible showing that

there were no ready alternatives to the search that would provide the same level of 

security.353 If stress of the searches triggered a response that made him unable to

assist in his defense, then his prosecution would be suspended until he recovered.354

A week later, by letter apparently prepared by his attorney, Ghailani waived

the right to attend a pretrial conference held that day.355 A week after that, Judge

Kaplan issued an order finding that Ghailani has never suffered from posttraumatic stress disorder and his refusal to attend proceedings was motivated in

part by an effort to frustrate the prosecution.356 Ghailani was back in court on the

eve of trial for a three-day hearing on his successful motion to suppress a key witness,357 and he was in court for his trial.358

 346. See Weiser, Faking Illness, supra note 221. 347. See Benjamin Weiser, Judge Rules Defendant s Amnesia Is Feigned in Terror Case, N.Y. 

Times, Dec. 16, 2000, at B2.

348. United States v. Ghailani, 751 F. Supp. 2d 508 (S.D.N.Y. 2010).

349. Id. at 510.

350. Id. at 510 11.

351. Id. at 511.

352. Id. & n.11.

353. Id. at 514.

354. Id. at 514 15.

355. Letter, United States v. Ghailani, No. 1:98-cr-1023-9 (S.D.N.Y. June 24, 2010).

356. Order, Ghailani, No. 1:98-cr-1023-9 (S.D.N.Y. July 1, 2010).

357. S.D.N.Y. El Hage Docket Sheet, supra note 225. 358. See Benjamin Weiser, Inside Qaeda Terror Defense: Evolving Strategy and Emotional

Pendulum, N.Y. Times, Jan. 18, 2011, at A18 ( The lawyers pleaded with him to come to court, and ultimately, Mr. Ghailani agreed to attend the trial after [the defense psychologist] helped reduce his anxiety. ).
42 National Security Case Management Studies (11/14/2011)

Challenge: Jury Security

Judge Sand decided to close jury selection and use an anonymous jury, but not

sequester the jury.359

On Monday, Feb. 5, 2001, the first day of the trial, the 12 jurors and six alternates

met at a secret location in Midtown Manhattan and were driven to court by armed federal

marshals. Safety concerns were paramount for the jurors, who were not sequestered. The

jury room was guarded by marshals and was checked each morning by bomb-sniffing 

dogs. But there was always the unexpected. One day, jurors said, they were startled when 

someone climbed through the window. It turned out to be a workman looking to use the

bathroom.360 For the trial against Ghailani, Judge Kaplan granted the government s motion

for an anonymous jury.361 Deputy marshals shuttled the jurors to and from the

courthouse and provided them with breakfast, lunch, and refreshments.362

Challenge: Court Security

In the first trial, persons entering the courtroom had to pass through a metal detector and sign a log book stating their purpose in attending the trial.363

At a law school presentation, Judge Sand recalled a critical security event:

I held a conference before the jury was selected in my regular courtroom, which is a fairly standard size courtroom. The four defendants were seated in the jury box with a marshal on each side. The issue was that one of the defendants, El-Hage, had written a letter

that he wanted to send to the media. The government objected, because they thought, How do we know whether there are codes in that or other things that would not be apparent to us? And so we were discussing the sending of a paraphrase not the exact language, but the substance.

While this discussion is going on, El-Hage, seated between two marshals in the jury

box, jumps out of the jury box and races toward the bench. Now, I don t know why he

was racing to the bench. I have a suspicion that he was not coming to shake my hand and

thank me for the careful attention I was giving to his case. The courtroom was scattered

with security officers. You know, you sort of look around and you see them, and they

sometimes don t look so alert to you. Instantly, there was a security officer standing in

front of me, shielding me with his body, which I appreciated. There had been a sketch

artist who was just in the line of fire between El-Hage and myself. She immediately

threw her easel over and ducked. Of course, one of the security officers tackled El-Hage 

just as he was coming up to the bench.364

 359. See Feuer, supra note 276; Gross, supra note 26, at 21 22; Weiser, supra note 275; Weiser, Jury Torn, supra note 283; Benjamin Weiser, Life-and-Death Questions in Embassy Bombings

Case, N.Y. Times, June 3, 2001, at 137 (reporting that even Judge Leonard B. Sand does not

know their names ). 360. Weiser, Jury Torn, supra note 283. 361. Order, Ghailani, No. 1:98-cr-1023-9 (S.D.N.Y. June 16, 2010); see Ghailani Preliminary 

Remarks, supra note 316, at 2; see also Weiser & Moynihan, supra note 317 ( the defense lawyers, prosecutors and even the judge have not been told their names ). 362. Order, Ghailani, No. 1:98-cr-1023-9 (S.D.N.Y. Sept. 27, 2010); Ghailani Preliminary 

Remarks, supra note 316, at 2.

363. See Hirsch, supra note 213, at 71.

364. Trying Cases, supra note 226, at 13.
National Security Case Management Studies (11/14/2011) 43

Because of el-Hage s actions, the defendants were shackled to the floor under

the table.365 To prevent the jurors from realizing this, the jury was not present

when defendants were brought in and out.366 And, for this trial, there was no all

rise when the judge entered.367 Judge Sand believed it was important to conceal

as much as possible any extraordinary security measures.368

Challenge: Witness Security

The informant al-Fadl was formerly Osama Bin Laden s payroll manager, whom

the government had identified prior to his testimony, even to defense counsel, only as CS-1, which stood for confidential source one. 369 He had been under U.S. protection in an undisclosed location since 1998 after pleading guilty to a conspiracy charge in a sealed proceeding in the Southern District of New York.370 In

1996, Mr. Fadl fled [Al-Qaeda] after he embezzled about $110,000 from one of

Mr. Bin Laden s companies, eventually walking into an American embassy in

Africa and offering his services in the fight against Al-Qaeda. 371

Al-Fadl s identity was not revealed to defense counsel until four days before

his scheduled testimony, and a protective order forbade counsel from revealing

his identity to their clients until the day before al-Fadl appeared in court.372 Judge 

Sand forbade courtroom artists from sketching al-Fadl s face.373

Judge Kaplan also forbade courtroom artists from sketching a witness s

face.374 Ghailani moved to suppress evidence from a witness whom Tanzanian

autorities arrested in 2006, the FBI questioned, and who was released after the

 365. Trying Cases, supra note 226, at 14; Interview with Hon. Leonard B. Sand, June 25, 2007; see Gross, supra note 26, at 15 & n.54; Hirsch, supra note 213, at 78.

366. Trying Cases, supra note 226, at 14; Interview with Hon. Leonard B. Sand, June 25, 2007; see Hirsch, supra note 213, at 78.

367. United States v. Bin Laden, No. 1:98-cr-1023, 2005 WL 287404, at *2 (S.D.N.Y. Feb. 7, 2005); Trying Cases, supra note 226, at 14; see Hirsch, supra note 213, at 78.

368. Interview with Hon. Leonard B. Sand, June 25, 2007.

369. See Hirsch, supra note 213, at 103; Benjamin Weiser, Ex-Aide to Bin Laden Describes

Terror Campaign Aimed at U.S., N.Y. Times, Feb. 7, 2001, at A1 [hereinafter Ex-Aide]; Benjamin 

Weiser, Secret Witness Set to Testify in Terror Trial, N.Y. Times, Feb. 5, 2001, at B1; Weiser, Qaeda Informer, supra note 293. Al-Fadl is related by marriage to al-Nalfi. See Weiser, Qaeda Member, supra note 255; Weiser, Held Secretly, supra note 255; Weiser, Qaeda Informer, supra note 293. 370. In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93, 142 (2d Cir. 2008); United States v. Bin Laden, 397 F. Supp. 2d 465, 474 (S.D.N.Y. 2005); see Docket Sheet, United States v. Al-Fadl, No. 1:97-cr-673 (S.D.N.Y. July 10, 1997) (unsealed Apr. 2, 2001); see 

also Weiser, Ex-Aide, supra note 369; Weiser, Qaeda Informer, supra note 293. 371. Weiser, Qaeda Informer, supra note 293; see The 9/11 Commission Report 109 (2004)

( Jamal Ahmed al Fadl walked into a U.S. embassy in Africa, established his bona fides as a former senior employee of Bin Ladin, and provided a major breakthrough of intelligence on the creation, character, direction, and intentions of al Qaeda. ); Bin Laden, 397 F. Supp. 2d at 474; see 

also Soufan, supra note 64, at 66 69, 71.

372. See Hirsch, supra note 213, at 109.

373. See id.

374. See Benjamin Weiser, Witness in 1998 Bombings Is Identified at a Hearing, N.Y. Times, Sept. 20, 2010, at A26.
44 National Security Case Management Studies (11/14/2011)

witness agreed to testify against Ghailani.375 Ghailani argued that finding the witness resulted from coercion during extremely harsh interrogation while Ghailani

was in the CIA s Rendition, Detention, and Interrogation Program.376 Judge Kaplan ordered an evidentiary hearing on the matter,377

at which the witness testified.378 The witness s identity was initially redacted from Judge Kaplan s opinion

ordering the hearing,379 but his identity was revealed at the hearing

380 and the

opinion was reposted three weeks later without the witness s name redacted.381

Judge Kaplan suppressed the witness,382and the government elected not to delay 

the trial by appealing the suppression order.383

Challenge: Religious Accommodation

An appointed attorney had to be dismissed for mocking his client s religious beliefs.384 As Judge Sand reported,

An attorney who was very diligently representing his client was talking to his client. His

client explained that if he died as a martyr he would go immediately to paradise and have

thirteen virgin brides. The lawyer said, Can you imagine having thirteen fathers-inlaw? The next morning there is on my desk a motion to replace the attorney. The defendant said, How can I be represented by a lawyer who mocks my religion? I granted the

application.385

Judge Sand 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

was made cumbersome by their hidden shackles.386

Challenge: Classified Evidence

In order to have access to classified evidence, defense counsel had to have security clearances.387 Initially the attorneys in the original trial objected to their adver-

 375. United States v. Ghailani, 743 F. Supp. 2d 242, 247 48, 259 60 (S.D.N.Y. 2010); see

Benjamin Weiser, Dispute Over Witness in Embassy Bombing Case, N.Y. Times, Sept. 3, 2010, at

A16 ( brief references in declassified papers say he is a Tanzanian named Hussein who sold Mr. Ghailani hundreds of pounds of TNT that was later used to blow up the United States Embassy in

Tanzania ). 376. Ghailani, 743 F. Supp. 2d at 248.

377. Id. at 261; see Weiser, supra note 375. 378. United States v. Ghailani, 743 F. Supp. 2d 261, 274 (S.D.N.Y. 2010); see Weiser, supra

note 374. 379. Ghailani, 743 F. Supp. 2d 242.

380. See Weiser, supra note 374. 381. Opinion, United States v. Ghailani, No. 1:98-cr-1023-9 (S.D.N.Y. Oct. 7, 2010).

382. Ghailani, 743 F. Supp. 2d 261; see Peter Finn, Ruling in 98 East Africa Embassy Bombings Is Setback for U.S., Wash. Post, Oct. 7, 2010, at A4; Benjamin Weiser, Judge Prohibits Key

U.S. Witness in Terror Trial, N.Y. Times, Oct. 7, 2010, at A1.

383. See Benjamin Weiser, Prosecutors Will Not Appeal Ruling Barring Key Witness in Trial

of Former Detainee, N.Y. Times, Oct. 11, 2010, at A19.

384. Interview with Hon. Leonard B. Sand, June 25, 2007.

385. Trying Cases, supra note 226, at 13.

386. See Hirsch, supra note 213, at 78.
National Security Case Management Studies (11/14/2011) 45

saries invading their privacy with background checks, but the government assured the attorneys and the court that background information would not be

shared with prosecutors in the case.388 The court ruled that a security clearance

requirement did not violate the defendants Sixth Amendment right to counsel, and the court of appeals affirmed.389

Judge Sand 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.390 Sometimes Judge Sand was able to mediate a substitution for

classified information:

The District Court held five in camera CIPA hearings in February 2001. Portions of

the February 6, 2001 hearing were conducted ex parte; the others were attended by counsel for both sides. El-Hage s defense attorneys, in the presence of the government, described in detail the classified material that they anticipated disclosing. The District Court 

then excused El-Hage s counsel in order to inquire into the government s reasons for refusing to declassify these items. After the government completed its presentation and was

excused, the District Court recalled El-Hage s attorneys, inquiring, in the absence of government counsel, into the use that El-Hage s counsel planned to make of the classified information at issue. Having established that El-Hage s attorneys wished to use the classified material for cross-examination of a government witness, the District Court suggested 

that the parties could work together to produce a paraphrased version of the relevant portions. The District Court then recalled the government in order to discuss the merits of

this proposal with counsel on both sides.391

Sometimes Judge Sand was able to determine that classified information was not

as relevant as defense counsel thought it might be:

After giving El-Hage s counsel the opportunity to set forth their theory on the relevance

of this information, the District Court explainted that based upon its review of an ex 

parte submission made by the government it could represent with confidence that the

classified information did not have the significance claimed by counsel.392

Judge Sand held, and the court of appeals agreed, that the Fourth Amendment s warrant requirement does not apply to extraterritorial searches by the U.S. government, but the Fourth Amendment s reasonableness requirement does apply

to extraterritorial searches of U.S. citizens.393 In 1996 and 1997, as part of an investigation of Al-Qaeda, telephone lines used by el-Hage in Kenya were bugged,

 387. El Hage Protective Order, supra note 333, ¶ 5; Interview with Hon. Lewis Kaplan, Nov. 5, 2009; see Gross, supra note 26, at 13; Benjamin Weiser, Bomb Suspects Lawyers to Need Security Checks, N.Y. Times, July 1, 1999, at B5.

388. See Weiser, supra note 387. 389. In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93, 119 28 (2d Cir. 2008); United States v. Bin Laden, 58 F. Supp. 2d 113 (S.D.N.Y. 1999); see Gross, supra note 26, at 13.

390. Interview with Hon. Leonard B. Sand, June 25, 2007.

391. In re Terrorist Bombings, 552 F.3d at 118 19.

392. Id. at 119.

393. In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 157, 159, 161 64, 

167 72, 176 77 (2d Cir. 2008); United States v. Bin Laden, 264 F. Supp. 2d 264, 270 77 

(S.D.N.Y. 2000); see Weiser, supra note 306.
46 National Security Case Management Studies (11/14/2011)

and his Nairobi home was searched.394 To resolve el-Hage s suppression motion, Judge Sand determined the reasonableness of the searches by ex parte examination of classified evidence instead of hearing evidence in an adversary proceeding.395 The court of appeals determined that Judge Sand s method was appropriate.396

Judge Kaplan reviewed classified information on Ghailani to determine what

had to be produced in discovery to cleared defense counsel.397 Defense counsel

challenged the adequacy of a chart summarizing the nature of 897 classified CIA

reports that the government claims are not themselves discoverable but that contain statements made by the defendant in response to custodial interrogation. 398

After reviewing 895 of the documents, Judge Kaplan determined that cleared defense counsel were entitled to an augmented chart indicating, whenever the underlying documents so indicate, the duration of the interview in which a statement 

was made and whether that interview took place in the defendant s cell or elsewhere. 399 Judge Kaplan determined that the defense was entitled to additional

information about two of the documents a summary of each statement refer- encing the Embassy Bombings sufficient to indicate the substance of the statement, the time when it was made, and to whom and Judge Kaplan reserved

judgment on two documents the government had not yet shown him.400

Judge Sand s and Judge Kaplan s law clerks had security clearances.401 It is

Circuit Judge Cabranes s practice to ask his law clerks to seek security clearances,402 but Circuit Judge Newman has never had a cleared clerk, unless the

clerk came with a security clearance as a result of previous employment.403 It is

especially difficult for appellate judges to wait until they have a relevant case to

ask their clerks to seek security clearances, because appellate judges are typically

assigned to cases only a few weeks in advance of oral argument.404

 394. In re Terrorist Bombings, 552 F.3d at 159 60; Bin Laden, 264 F. Supp. 2d at 269.

In addition, el-Hage s home in Arlington, Texas, was bugged in August and September of

1998 pursuant to the Foreign Intelligence Surveillance Act, but the government did not use any

information gathered from this search in el-Hage s prosecution. In re Terrorist Bombings, 552

F.3d at 160.

395. In re Terrorist Bombings, 552 F.3d at 159, 165 67; Bin Laden, 264 F. Supp. 2d at 286

88.

396. In re Terrorist Bombings, 552 F.3d at 159, 167, 177.

397. Order, United States v. Ghailani, No. 1:98-cr-1023-9 (S.D.N.Y. Dec. 7, 2009) [hereinafter 

Ghailani Discovery Order].

398. Id. at 1.

399. Id. at 2.

400. Id.

401. Interview with Hon. Lewis Kaplan, Nov. 5, 2009; Interview with Hon. Leonard B. Sand, June 25, 2007.

402. Interview with Hon. José A. Cabranes, Nov. 4, 2009.

403. Interview with Hon. Jon O. Newman, Nov. 4, 2009.

404. Interview with 2d Cir. Clerk s Office Staff, Nov. 6, 2009.
National Security Case Management Studies (11/14/2011) 47

Challenge: Classified Arguments

By the time of Ghailani s prosecution, electronic filing had become widespread in

federal courts. Judge Kaplan issued a two-page order explaining how filings containing classified information would be electronically docketed: an unredacted

copy of the filing would be filed with the classified information security officer

and only a caption page would be filed electronically until a redacted copy could

be filed electronically after a security review.405

Challenge: Classified Orders and Opinions

A discovery order by Judge Kaplan early in the Ghailani prosecution contained 

details about two classified documents, about which Judge Kaplan determined

cleared counsel were entitled to more information.406 The order was filed with the

classified information security officer on November 24, 2009.407 The security officer arranged for redaction by intelligence agencies: two bulleted paragraphs

were redacted from the order, and then the redacted order was filed publicly on 

December 7.408

A second discovery order was filed with the classified information security officer on December 8, and a redacted version was filed publicly on February 4, 2010.409 Judge Kaplan s opinion denying relief from strip and visual body cavity

searches was filed with the classified information security officer on June 14, determined to contain no classified information, and then filed publicly three days

later.410

On July 12, Judge Kaplan filed with the classified information security officer

an opinion rejecting Ghailani s speedy trial motion, and the opinion was publicly

filed the next day with three slight redactions.411 Also on July 12, Judge Kaplan

filed with the security officer a classified supplement to his opinion discussing

Ghailani s treatment while in CIA custody.412 The supplement was docketed the

next day, and a heavily redacted public version of it was filed two days after

that.413

On August 17, Judge Kaplan ordered an evidentiary hearing on whether testimony from a government witness should be suppressed because the government

 405. Order, United States v. Ghailani, No. 1:98-cr-1023-9 (S.D.N.Y. Oct. 27, 2009).

406. Ghailani Discovery Order, supra note 397. 407. S.D.N.Y. El Hage Docket Sheet, supra note 225. 408. Id.; Interview with Dep t of Justice Litig. Sec. Group Staff, Jan. 7, 2010. 409. S.D.N.Y. El Hage Docket Sheet, supra note 225. 410. Id.; United States v. Ghailani, 751 F. Supp. 2d 508 (S.D.N.Y. 2010).

411. S.D.N.Y. El Hage Docket Sheet, supra note 225; see United States v. Ghailani, 751 F. Supp. 2d 515 (S.D.N.Y. 2010).

412. S.D.N.Y. El Hage Docket Sheet, supra note 225; see Opinion, United States v. Ghailani, No. 1:98-cr-1023-9 (S.D.N.Y. July 12, 2010). 413. S.D.N.Y. El Hage Docket Sheet, supra note 225; Order, Ghailani, No. 1:98-cr-1023-9 

(S.D.N.Y. July 15, 2010).
48 National Security Case Management Studies (11/14/2011)

learned of the witness through extraordinary interrogation methods.414 Judge Kaplan s memorandum opinion ordering the hearing was filed with the classified information security officer on August 18.415 On September 1, a heavily redacted

version of the opinion was filed publicly.416 Redactions include the name of the

witness and appear to include details of Ghailani s capture, detention, and interrogation.417 The witness s identity was revealed at the hearing on the admissibility

of his testimony, and a substitute redacted opinion not redacting his name was

filed three weeks after the hearing.418

On October 6, Judge Kaplan agreed to suppress the witness.419 A redacted

opinion on the matter was filed publicly approximately one week later.420

Challenge: Subpoenaing a Cabinet Officer

Al- Owhali s attorneys decided testimony from Secretary of State Madeleine Albright might be helpful during the penalty phase of al- Owhali s trial.421 It was

reported that, The lawyers . . . said they want[ed] to question Dr. Albright about

her knowledge of the number of Iraqi children dying as a direct consequence of

the United States enforcement of United Nations sanctions following the gulf

war. 422 Judge Sand agreed to sign the subpoena,423 but on the government s motion he quashed it.424 Al- Owhali presented at trial as a substitute for her live testimony a 60 Minutes interview with Secretary Albright.425 Al- Owhali also presented similar evidence through a willing witness, former Attorney General Ramsey Clark.426

 414. United States v. Ghailani, 743 F. Supp. 2d 242, 261 (S.D.N.Y. 2010); see Weiser, supra

note 375. 415. S.D.N.Y. El Hage Docket Sheet, supra note 225. 416. Id.

417. Ghailani, 743 F. Supp. 2d 242; see United States v. Ghailani, 743 F. Supp. 2d 261, 281

(S.D.N.Y. 2010) (noting that the witness s name was classified until approximately the time of the 

hearing).

418. Opinion, United States v. Ghailani, No. 1:98-cr-1023-9 (S.D.N.Y. Oct. 7, 2010).

419. United States v. Ghailani, 743 F. Supp. 2d 261 (S.D.N.Y. 2010).

420. S.D.N.Y. El Hage Docket Sheet, supra note 225; see Benjamin Weiser, Judge Says Witness Barred from Ex-Detainee s Trial Had Lied, N.Y. Times, Oct. 15, 2010, at A21.

421. See Hirsch, supra note 213, at 195 96 (reporting that al- Owhali wanted to prove that

U.S. government actions and al Qaeda actions could be viewed as similarly criminal ); Subpoena 

for Albright in Bombings Trial, N.Y. Times, Apr. 18, 2001, at B7 [hereinafter Subpoena for Albright].

422. Benjamin Weiser, U.S. Checks Evidence Sharing in the Embassy Bombings Trial, N.Y. Times, May 16, 2001, at B6.

423. See Subpoena for Albright, supra note 421. 424. See Weiser, supra note 422. 425. See Hirsch, supra note 213, at 196.

426. See id.; Benjamin Weiser, Defense in Terror Trial Cites U.S. Sanctions Against Iraq, N.Y. Times, June 5, 2001, at B4.
National Security Case Management Studies (11/14/2011) 49

Millennium Bomber

United States v. Ressam (John C. 

Coughenour, W.D. Wash.) and United States 

v. Haouari (John F. Keenan, S.D.N.Y.)

On December 14, 1999, Ahmed Ressam was detained by customs officials suspicious of his nervousness as he tried to enter the United States by ferry from Canada into Washington with over 100 pounds of explosives in his car.427

Ressam was born in Algeria in 1967, and in February 1994 he moved to Canada, where he unsuccessfully applied for political asylum.428 In Canada, he lived

on welfare and petty theft.429

Traveling under the name Benni Noris with fraudulent documentation, Ressam rented a car in Vancouver and traveled with his car by ferry from Victoria to

Port Angeles, Washington.430 Ressam s car was the last off the ferry.431 Noting 

that Ressam s hands were shaking and, despite the cold weather, he was sweating,

 427. United States v. Ressam, 629 F.3d 793, 808 & n.1 (9th Cir. 2010), amending 593 F.3d

1095; United States v. Ressam, 474 F.3d 597, 600 (9th Cir. 2007); United States v. Ressam, 221 F. 

Supp. 2d 1252, 1254 (W.D. Wash. 2002); United States v. Meskini, 319 F.3d 88, 91 (2d Cir. 2003); Haouari v. United States, 429 F. Supp. 2d 671, 673 (S.D.N.Y. 2006); The 9/11 Commission Report 82 (2004); see Complaint, United States v. Ressam, No. 2:99-mj-547 (W.D. Wash. Dec. 17, 1999) [hereinafter Ressam Complaint]; Paula Bock, An Otherwise Ordinary Day in Quiet 

Port Angeles, Local Folks Tackle a Terrorist And Nothing Has Been Quite the Same Since, Seattle Times, Nov. 25, 2001, at 16; Frontline: Trail of a Terrorist (PBS television broadcast Oct. 25, 2001) [hereinafter Trail of a Terrorist]; Susan Gilmore & Mike Carter, Man Stopped at Border with Suspected Bomb Materials, Seattle Times, Dec. 16, 1999, at A1; Josh Meyer, Border Arrest

Stirs Fear of Terrorist Cells in U.S., L.A. Times, Mar. 11, 2001, at 1; Steve Miletich, Susan Gilmore, Mike Carter, Joshua Robin, Ian Ith & Anne Koch, FBI Probes Possible Terrorist Plot Here, Seattle Times, Dec. 17, 1999, at A1; Scott Sunde & Elaine Porterfield, Wider Bomb Plot Possible, Seattle Post-Intelligencer, Dec. 18, 1999, at A1; Sam Howe Verhovek & Tim Weiner, Man Seized

with Bomb Parts at Border Spurs U.S. Inquiry, N.Y. Times, Dec. 18, 1999, at A1.

428. Ressam, 629 F.3d at 806; Ressam, 474 F.3d at 599; see Ressam Complaint, supra note 

427; Bock, supra note 427; William Booth, Focus Is Narrow as Ressam Trial Begins, Wash. Post, 

Mar. 14, 2001, at A8; John F. Burns, Arrest at U.S. Border Reverberates in France, N.Y. Times, Dec. 22, 1999, at A1; Maggie Farley, Canada s Lapses Kept Algerian Suspect Free, L.A. Times, Dec. 23, 1999, at 1; Trail of a Terrorist, supra note 427; Meyer, supra note 427; Steven Pearlstein, 

Canadians Examine Lapses in Security, Wash. Post, Dec. 22, 1999, at A8; Soufan, supra note 64, at 141 ( A wily Algerian, he falsely claimed political asylum in Canada in 1994, using a fake

passport and a story about persecution. ). 429. See Trail of a Terrorist, supra note 427; Soufan, supra note 64, at 141 42.

430. Ressam, 629 F.3d at 807 08; Ressam, 474 F.3d at 599 600; Ressam, 221 F. Supp. 2d at

1254; see Ressam Complaint, supra note 427; Bock, supra note 427; Trail of a Terrorist, supra

note 427; Soufan, supra note 64, at 142; Sunde & Porterfield, supra note 427; Verhovek & Weiner, supra note 427. 431. See Ressam, 474 F.3d at 600; Ressam Complaint, supra note 427; Bock, supra note 427; 

Trail of a Terrorist, supra note 427; Meyer, supra note 427; Soufan, supra note 64, at 142 ( Apparently he thought that the last car off would receive less attention. ); Sunde & Porterfield, supra

note 427.
50 National Security Case Management Studies (11/14/2011)

the customs inspector asked him to step out of the car, and Ressam initially refused.432 Then he got out of the car and, as agents began searching the trunk, he 

fled.433 He was caught a few blocks away.434

It was later determined that Ressam s sweating may have been caused by malaria, which he did not know at the time he had.435

A search of the car showed that its spare tire had been replaced by 10 garbage

bags containing 118 pounds of urea and 14 pounds of aluminum sulfate, two olive 

jars packed in sawdust containing a honey-like explosive, pill bottles containing

other explosives, nine-volt batteries, and four circuit boards connected to Casio

watches.436

A Tylenol bottle contained a powerful military-grade explosive, cyclotrimethylenetrinitramine, or RDX. Another small bottle held hexamethylentriperoxodiamin, or

HMTD, an unstable explosive so dangerous it s not manufactured commercially. Two tall 

olive jars were filled with 50 ounces of ethylene glycol dinitrate, or EGDN, a chemical

cousin to nitroglycerin. Used in dynamite, EGDN is sensitive to shock, heat and friction. Screwing the jar lids could have been enough to set it off.437 Also in the car were maps of Washington, Oregon, and California.438 Further investigation led to suspicion that he was an agent of Osama Bin Laden.439

Ressam was indicted on December 22, 1999, in the Western District of Washington, for false statements and improper transportation of explosives.440 The 

court assigned the case to Judge John C. Coughenour.441

 432. Ressam, 629 F.3d at 808; see Ressam Complaint, supra note 427; Gilmore & Carter, supra note 427; Meyer, supra note 427; Sunde & Porterfield, supra note 427; Verhovek & Weiner, supra note 427. 433. Ressam, 629 F.3d at 808; Haouari v. United States, 429 F. Supp. 2d 671, 676 (S.D.N.Y. 2006); see Ressam Complaint, supra note 427; Bock, supra note 427; Gilmore & Carter, supra

note 427; Trail of a Terrorist, supra note 427; Meyer, supra note 427; Sunde & Porterfield, supra

note 427; Verhovek & Weiner, supra note 427. 434. Ressam, 629 F.3d at 808; see Ressam Complaint, supra note 427; Gilmore & Carter, supra note 427; Meyer, supra note 427; Miletich et al., supra note 427; Verhovek & Weiner, supra

note 427. 435. See Steve Miletich & Mike Carter, Malaria May Have Unmasked Ressam, Seattle Times, June 1, 2001, at A1 (reporting also that Ressam may have contracted malaria during a 1998 trip to

Pakistan).

436. Ressam, 629 F.3d at 808 n.1; Ressam, 474 F.3d at 600; United States v. Ressam, 221 F. Supp. 2d 1252, 1254 (W.D. Wash. 2002); see Ressam Complaint, supra note 427; John J. Goldman, Algerian Admits Bomb Plot, Pledges Cooperation, L.A. Times, Mar. 9, 2001, at 12; John

Kifner & William K. Rashbaum, Brooklyn Man Is Charged with Aiding in Bomb Plot, N.Y. 

Times, Dec. 31, 1999, at A1; Steve Miletich, Mike Carter, James V. Grimaldi & Anne Koch, Ter- rorist Link Explored, Seattle Times, Dec. 18, 1999, at A1; Sunde & Porterfield, supra note 427; 

Verhovek & Weiner, supra note 427

437. Bock, supra note 427. 438. See Meyer, supra note 427; Miletich et al., supra note 427; Sunde & Porterfield, supra

note 427; Verhovek & Weiner, supra note 427. 439. See Michael Janofsky, Terrorism Trial May Keep to Narrower Focus, N.Y. Times, Mar. 14, 2001, at A12; Meyer, supra note 427; Steven Mufson, Arrest Stirs Terrorism Concerns, Wash. 

Post, Dec. 18, 1999, at A1; Sunde & Porterfield, supra note 427. 440. Indictment, United States v. Ressam, No. 2:99-cr-666 (W.D. Wash. Dec. 22, 1999); see 

William Booth, Algerian Indicted on Explosives Counts, Wash. Post, Dec. 23, 1999, at A1; Steve
National Security Case Management Studies (11/14/2011) 51

Ressam shared a motel room with another man for three weeks just before his

ferry trip.442 Canadian authorities determined that the other man was Abdelmajed

Dahoumane.443 On January 20, 2000, Ressam s indictment was superseded to add

a terrorism charge and to add Dahoumane as a defendant.444 On April 6, the U.S. embassy in Montreal offered a reward of $5 million for information leading to

Dahoumane s arrest and conviction.445 Dahoumane was arrested in Algeria late in

2000.446 On April 1, 2001, the Algerian government announced that it would try

Dahoumane there.447 Dahoumane pleaded guilty in Algeria.448

Investigation showed that Ressam had a reservation for one night s stay at a

Seattle motel near the Space Needle and a flight to London the following day.449

Seattle canceled its millennium New Year s Eve party scheduled for the base of

 Miletich, Algerian Indicted by Grand Jury, Seattle Times, Dec. 22, 1999, at A1; Kim Murphy, Algerian Suspect Pleads Not Guilty to 5 Bomb Charges, L.A. Times, Dec. 23, 1999, at 17; Elaine 

Porterfield, Bomb Suspect Is Indicted, Seattle Post-Intelligencer, Dec. 23, 1999, at A1; Sam Howe

Verhovek, Grand Jury Charges Man Found with Bomb Materials, N.Y. Times, Dec. 23, 1999, at

A20.

441. Order, Ressam, No. 2:99-cr-666 (W.D. Wash. Dec. 23, 1999) ( For reasons of security, the Honorable John C. Coughenour, Chief Judge for the Western District of Washington, directs

the above-captioned case be filed in Seattle and assigned to the undersigned. ); see Porterfield, 

supra note 440. Tim Reagan interviewed Judge Coughenour for this report in the judge s chambers on October

3, 2008.

442. See Trail of a Terrorist, supra note 427; Sam Howe Verhovek, 2nd Man Sought for Questioning in Bomb Plot, N.Y. Times, Dec. 19, 1999, at 142.

443. See David Johnston, Canada Seeks Friend of Man Held in Ferrying of Explosives, N.Y. Times, Dec. 25, 1999, at A21.

444. Superseding Indictment, Ressam, No. 2:99-cr-666 (W.D. Wash. Jan. 20, 2000); see Mike 

Carter, Algerian Bomb-Plot Web Grows with New Charges, Seattle Times, Jan. 21, 2000, at A1;

Elaine Porterfield, Indictment Details Bomb Conspiracy, Seattle Post-Intelligencer, Jan. 21, 2000, at A1; David A. Vise & Dan Eggen, Bomb Plot Suspect Sought by United States, Canada Is Detained in Algeria, Wash. Post, Dec. 8, 2000, at A44; see also Second Superseding Indictment, Ressam, No. 2:99-cr-666 (W.D. Wash. Feb. 14, 2001); Sam Skolnik, Terrorism Charge Expanded

in Bomb-Smuggling Case, Seattle Post-Intelligencer, Feb. 15, 2001, at B3 (reporting on second

superseding indictment).

445. See Meyer, supra note 427 (reporting that this was the same bounty offered for Osama

Bin Laden); Steve Miletich & Mike Carter, Prints Found on Bomb Parts, Seattle Times, Apr. 12, 2000, at B1; Reward Offered on Suspected Terrorist, L.A. Times, Apr. 7, 2000, at 6; Sam Skolnik, 

U.S. Puts $5 Million Bounty for Algerian, Seattle Post-Intelligencer, Apr. 7, 2000, at A1; Vise &

Eggen, supra note 444. 446. See Lorraine Adams, The Other Man, Wash. Post Mag., May 20, 2001, at 10; Judith Miller, Suspect in New Year s Terror Plot Is Arrested in Algeria, N.Y. Times, Dec. 7, 2000, at A3;

Vise & Eggen, supra note 444. 447. See Adams, supra note 446; Algiers to Try Terror Suspect Sought by U.S., N.Y. Times, Apr. 2, 2001, at A5.

448. See Steve Miletich, Ressam Co-Conspirator Pleads Guilty, Seattle Times, Sept. 26, 2001, at A4; Sam Skolnik, Man Sought in Ressam Case Is Convicted in Algeria, Seattle PostIntelligencer, Sept. 26, 2001, at B2.

449. See Ressam Complaint, supra note 427; Miletich et al., supra note 436; Verhovek &

Weiner, supra note 427.
52 National Security Case Management Studies (11/14/2011)

the Space Needle.450 Because of the extensive news coverage in Seattle about the

possibility of a planned bombing of the Space Needle, the signature building of

the Seattle skyline, on March 3, 2000, Judge Coughenour granted Ressam s motion to move the trial to Los Angeles.451

It was reported that a substantial factor in Judge Coughenour s ruling was the

superior security of Los Angeles s newer courthouse compared to Seattle s old 

courthouse, designed in the 1920s, where judges rode the same elevators as defendants, jurors, and witnesses.452 In addition, transportation of Ressam between

the detention center in Seattle and the courthouse required road closures, but this

was not necessary in Los Angeles because of the detention center s proximity to

the courthouse.453

A minor international incident erupted in March 2000 as Ressam s attorneys

prepared for trial.454 The Western District of Washington s Federal Public Defender s office agreed to accept service on Ressam s behalf of three seizure notices from the Royal Canadian Mounted Police.455 Two attorneys and an investigator 

traveled to Montreal to investigate the seizures, and they obtained from the court

there copies of documents in the related files.456 Apparently, the documents were

disclosed to Ressam s attorneys in error, and they were taken back from the attorneys at the airport.457 The U.S. government moved for return of all copies of the

documents and for an order prohibiting Ressam s attorneys from discussing them

 450. See Timothy Egan, Citing Security, Seattle Cancels a New Year s Eve Party, N.Y. Times, Dec. 29, 1999, at A16; Trail of a Terrorist, supra note 427; Steve Miletich, J. Martin McOmber & 

Anne Koch, How City Party Was Canceled, Seattle Times, Dec. 28, 1999, at A1; Kery Murakami, Seattle Center New Year s Gala Canceled, Seattle Post-Intelligencer, Dec. 28, 1999, at A1; Jube

Shiver, Jr., Millennium Disconnects, L.A. Times, Dec. 29, 1999, at 9.

A large crowd gathered the following year to watch the Space Needle turn into the world s

biggest sparkler. The Center of the Celebration, Seattle Post-Intelligencer, Jan. 1, 2001, at B1.

451. Order, United States v. Ressam, No. 2:99-cr-666 (W.D. Wash. Mar. 3, 2000); United 

States v. Ressam, 474 F.3d 597, 601 (9th Cir. 2007); see Meyer, supra note 427; Steve Miletich, Ressam Will Get L.A. Trial, Seattle Times, Mar. 3, 2000, at A1; Kim Murphy, Trial of Suspected

Algerian Terrorist Will Be Shifted from Seattle to L.A., L.A. Times, Mar. 4, 2000, at 14; Elaine

Porterfield, Bombing Suspect Will Be Tried in L.A., Seattle Post-Intelligencer, Mar. 4, 2000, at A1.

452. Mike Carter, Jury Selection to Begin Today in Ressam Trial, Seattle Times, Mar. 12, 2001, at B1; Steve Miletich, Security Cited as Judge Moves Ressam Trial to L.A., Seattle Times, Mar. 4, 2000, at A1; Murphy, supra note 451; Porterfield, supra note 451. The court in Seattle moved into a new courthouse in September 2004. Interview with Hon. John C. Coughenour, Oct. 3, 2008.

453. John C. Cougnenour, Security for Judges In and Out of the Courtroom, 41 Int l Soc y of

Barristers Q. 440, 444 (2006).

454. See Steve Miletich, Secret File in Ressam Bomb Case Causes Stir, Seattle Times, Mar. 23, 2000, at A1; Scott Sunde, Attorneys for Ressam Draw Fire Over Files, Seattle PostIntelligencer, Mar. 24, 2000, at B1.

455. See Oliver Affidavit, Ressam, No. 2:99-cr-666 (W.D. Wash. Mar. 23, 2000).

456. See Document Return Motion Response, id. (Mar. 23, 2000); Steve Miletich, Man in Alleged Bomb Plot to Enter Lesser Plea, Seattle Times, Mar. 16, 2000, at B2; Sunde, supra note 

454.457. See Document Return Motion, Ressam, No. 2:99-cr-666 (W.D. Wash. Mar. 20, 2000);

Miletich, supra note 454; Sunde, supra note 454.
National Security Case Management Studies (11/14/2011) 53

with their client.458 Both parties submitted affidavits, and Ressam s attorneys 

submitted a sealed ex parte affidavit concerning purpose of review of Montreal

court files. 459

The Federal Public Defender pointed out that an order barring discussion with

his client would present his attorneys with a conflict of interest potentially requiring withdrawal from the case: either they could serve their client and risk sanctions or they could obey the order and disserve their client.460 After a hearing, Judge Coughenour ruled that the matter was moot because Ressam s attorneys no

longer had copies of the documents.461 The judge told the attorneys that they 

could use the information from the Canadian files, but only as a last resort and

without disclosing to Ressam its origin.462

A couple of weeks before trial, on February 28, 2001, a 6.8-magnitude earthquake hit the Seattle area,463

so a status conference held the next day was held at

the SeaTac detention facility where Ressam was housed.464

Jury selection began in Los Angeles on March 12, 2001.465 After a little more

than seven hours of voir dire, a jury was selected from 44 prospective jurors.466

Opening arguments and the first witnesses were presented the next day.467

On the first day of trial, a government witness presented a map seized from

Ressam s Montreal apartment with Los Angeles International Airport and two

other local airports circled.468 Discovery of this map had been reported by news

media nearly two months previously.469

On April 6, 2001, the jury convicted Ressam on all counts.470 On the same

day, he and 23 others were sentenced by a French judge, before whom Ressam

 458. Document Return Motion, supra note 457; see Miletich, supra note 454. 459. Document Return Motion Response, supra note 456; Document Return Motion, supra

note 457. 460. Document Return Motion Response, supra note 456; see Mike Carter, Ressam Lawyers

May Use Secret Files, Seattle Times, Mar. 24, 2000, at B3.

461. Minutes, Ressam, No. 2:99-cr-666 (W.D. Wash. Mar. 23, 2000); see Carter, supra note 

460.462. See Carter, supra note 460; Sunde, supra note 454. 463. Eric Sorensen, Shaken, but OK, Seattle Times, Mar. 1, 2001, at A1.

464. Transcript, Ressam, No. 2:99-cr-666 (W.D. Wash. Mar. 1, 2001, filed Mar. 8, 2001) [hereinafter Ressam Mar. 1, 2001, Transcript].

465. Ressam Complaint, supra note 427; see Carter, supra note 452; Jury Selection Begins in Terrorism Trial, N.Y. Times, Mar. 13, 2001, at A17.

466. See Mike Carter, Ressam Trial Jury Picked Quickly, Seattle Times, Mar. 13, 2001, at A1.

467. Ressam Complaint, supra note 427; see Booth, supra note 428; Janofsky, supra note 439. 468. See Mike Carter, Defense Calls Ressam Dupe of Terrorists, Seattle Times, Mar. 14, 2001, 

at A1; Sam Skolnik & Scott Sunde, Ressam No Terrorist, Attorney Tells Court, Seattle PostIntelligencer, Mar. 14, 2001, at A1.

469. Josh Meyer, Group May Have Planned to Bomb LAX Last Year, Prosecutors Say, L.A. Times, Jan. 20, 2001, at 1; Sam Skolnik, Did Ressam Have L.A. Targets?, Seattle PostIntelligencer, Jan. 19, 2001, at B1.

470. United States v. Ressam, 629 F.3d 793, 809 (9th Cir. 2010); United States v. Ressam, 474 

F.3d 597, 601 (9th Cir. 2007); Haouari v. United States, 429 F. Supp. 2d 671, 677 (S.D.N.Y. 2006); Docket Sheet, United States v. Ressam, No. 2:99-cr-666 (W.D. Wash. Dec. 22, 1999); see

Adams, supra note 446; William Booth, Algerian Convicted on Terror Charges, Wash. Post, Apr.
54 National Security Case Management Studies (11/14/2011)

was tried in absentia, to five years in prison for conspiracy to support Islamic militants.471

Abdelghani Meskini s Brooklyn telephone number was found when Ressam

was arrested.472 Meskini, who reportedly lived as a con man and thief, was once

an Algerian Army officer, and he came to the United States as a stowaway in

1994.473

Apparently Meskini flew to Seattle on December 11, 1999, to meet Ressam.474

Because Ressam was a no-show, Meskini flew back to New York on December

16.475 On the basis of his number s being in Ressam s car, the Foreign Intelligence Surveillance Court authorized surveillance of Meskini s telephone.476

Miskini was arrested early in the morning on December 30 at his home as a suspected accomplice of Ressam.477

On January 6, 2000, a sealed indictment was filed in the Southern District of

New York against Mokhtar Haouari, a former schoolmate of Meskini s in Algeria.478 He was arrested four days later in Montreal; another three days later, the

indictment was superseded to add Meskini as a defendant.479 The court assigned

the case to Judge John F. Keenan.480

 7, 2001, at A1; Mike Carter, Ressam Guilty on All Counts, Seattle Times, Apr. 7, 2001, at A1;

Thomas J. Lueck, Algerian Is Found Guilty in Plot to Bomb Sites in the U.S., N.Y. Times, Apr. 7, 2001, at A9; Josh Meyer, Man Convicted of Taking Part in Bomb Plot, L.A. Times, Apr. 7, 2001, at 1; Sam Skolnik & Scott Sunde, Ressam Guilty of Terrorism, Seattle Post-Intelligencer, Apr. 7, 2001, at A1; see also Transcript, Ressam, No. 2:99-cr-666 (W.D. Wash. Apr. 4, 2001, filed Oct. 11, 2005) (jury instructions).

471. See Booth, supra note 470; Carter, supra note 470; Meyer, supra note 470; Skolnik &

Sunde, supra note 470. 472. See Booth, supra note 470; Mike Carter, Feds Link Ressam to Terror Camps, Seattle

Times, Mar. 9, 2001, at A1; Trail of a Terrorist, supra note 427; Meyer, supra note 427; Steve

Miletich & Mike Carter, Ressam Linked to Terrorist Group, Seattle Times, Dec. 31, 1999, at A1;

Benjamin Weiser, New Trouble for Terrorist Who Helped Prosecutors, N.Y. Times, July 31, 2010, at A12.

473. See Weiser, supra note 472. 474. Haouari, 429 F. Supp. 2d at 676; see Adams, supra note 446; Meyer, supra note 427; Miletich & Carter, supra note 472; David A. Vise, Algerian Arrested Dec. 24, Wash. Post, Jan. 4, 2000, at A2.

475. Haouari, 429 F. Supp. 2d at 676; see Adams, supra note 446; Meyer, supra note 427; Miletich & Carter, supra note 472; Vise, supra note 474. 476. See Walter Pincus, Judge Discusses Details of Work on Secret Court, Wash. Post, June

26, 2007, at A4; see also Ressam Mar. 1, 2001, Transcript, supra note 464. 477. Haouari, 429 F. Supp. 2d at 677; United States v. Haouari, No. 1:00-cr-15, 2000 WL

1593345 at *1 (S.D.N.Y. Oct. 25, 2000); see Adams, supra note 446; Trail of a Terrorist, supra

note 427; Kifner & Rashbaum, supra note 436; Meyer, supra note 427; Miletich & Carter, supra

note 472; Vise, supra note 474. 478. Docket Sheet, United States v. Haouari, No. 1:00-cr-15 (S.D.N.Y. Jan. 10, 2000) [hereinafter Haouari Docket Sheet]; see Adams, supra note 446; Craig Pyes, Canada Adds Details on Algerians Suspected Bomb Plot, N.Y. Times, Jan. 21, 2000, at A3.

479. Superseding Indictment, Haouari, No. 1:00-cr-15 (S.D.N.Y. Jan. 13, 2000); see Adams, 

supra note 446; Benjamin Weiser & Craig Pyes, U.S., in Pursuit of Bomb Plot, Indicts Man Held

in Canada, N.Y. Times, Jan. 19, 2000, at A1.

480. Haouari Docket Sheet, supra note 478.
National Security Case Management Studies (11/14/2011) 55

Based in part on surveillance of Meskini s telephone conversations, Haouari 

was charged with coordinating Ressam s bomb plot.481 Haouari waived extradition proceedings and agreed to be tried in the United States, where he was arraigned on August 14.482

On March 7, 2001, Meskini pleaded guilty and agreed to cooperate with the

prosecution.483 On January 23, 2004, he was sentenced to six years, with credit for 

time served.484 He was released in 2005; his application for the witness protection

program was rejected.485 With the government s approval, he got a job in Atlanta

as a building manager for an apartment complex known to be a hotbed of criminal activity, where narcotics sales and prostitution occurred openly and persistently. 486 In October 2010, he was sentenced to two years and seven months for an

attempt to acquire an AK-47 assault rifle.487

As Ressam s sentencing date approached, Meskini agreed to cooperate with

the prosecution of Haouari, and Ressam s sentencing was postponed.488 At Haouari s trial, on July 3, 2001, Ressam testified that he and accomplices had planned

to bomb Los Angeles International Airport on New Year s Eve.489 He said he

planned to explode a suitcase filled with fertilizer and nitric acid.490

 Tim Reagan interviewed Judge Keenan for this report in the judge s chambers on November 6, 2009.

481. See Meyer, supra note 427; Pyes, supra note 478. 482. See John Sullivan, Algerian Arraigned in Explosives Smuggling Case, N.Y. Times, Aug. 15, 2000, at B3.

483. United States v. Ressam, 629 F.3d 793. 810 (9th Cir. 2010); United States v. Meskini, 319 F.3d 88, 91 (2d Cir. 2003); Haouari v. United States, 429 F. Supp. 2d 671, 677 (S.D.N.Y. 2006); United States v. Haouari, No. 1:00-cr-15, 2001 WL 1154714 at *1 (S.D.N.Y. Sept. 28, 2001); see Adams, supra note 446; Carter, supra note 472; Alan Feuer, Man Pleads Guilty to Role 

in Millennial Terrorism Plot, N.Y. Times, Mar. 10, 2001, at B2; Dan Eggen, Algerian Guilty in Plot to Bomb Landmarks in U.S., Wash. Post, Mar. 9, 2001, at A3; Goldman, supra note 436; 

Meyer, supra note 427; Sam Skolnik, A Guilty Plea to Aiding Ressam, Seattle Post-Intelligencer, 

Mar. 9, 2001, at B1; Weiser, supra note 472. 484. Haouari Docket Sheet, supra note 478; see Weiser, supra note 472. 485. See Weiser, supra note 472. 486. Opinion, United States v. Haouari, No. 1:00-cr-15 (S.D.N.Y. Oct. 27, 2010).

487. Haouari Docket Sheet, supra note 478; see Benjamin Weiser, Millennium Plot Terrorist Reimprisoned in Gun Case, N.Y. Times, Oct. 30, 2010, at A16. 488. See Trail of a Terrorist, supra note 427; Laura Mansnerus & Judith Miller, Bomb Plot In- sider Details Training, N.Y. Times, July 4, 2001, at A1; Sam Skolnik & Paul Shukovsky, Ressam: 

Seattle No Target, Seattle Post-Intelligencer, May, 21, 2001, at A1; see also Transcript, United 

States v. Ressam, No. 2:99-cr-666 (W.D. Wash. July 27, 2005, filed Aug. 4, 2005) [hereinafter

Ressam July 27, 2005, Transcript] (discussing Ressam s cooperation); Transcript, id. (Apr. 27, 2005, filed Sept. 9, 2005) [hereinafter Ressam Apr. 27, 2005, Transcript] (same).

489. United States v. Ressam, 221 F. Supp. 2d 1252, 1254 (W.D. Wash. 2002); see Trail of a

Terrorist, supra note 427; Josh Meyer, Terrorist Says Plans Didn t End with LAX, L.A. Times, July 4, 2001, at 1; Michael Powell & Christine Haughney, Los Angeles Airport Intended Target, Wash. Post, July 4, 2001, at A2; see also Mike Carter & Steve Miletich, Ressam: L.A. Airport Was 

Target, Seattle Times, May 30, 2001, at A1 (reporting that Ressam had told Haouari s prosecutors

that the Los Angeles airport was his target); Josh Meyer, Millennium Terrorist Now Detailing

Plot, Sources Say, L.A. Times, May 30, 2001, at 1 (same).

490. See Trail of a Terrorist, supra note 427; Powell & Haughney, supra note 489.
56 National Security Case Management Studies (11/14/2011)

In order to keep the witness Ressam separate from the defendant Haouari, 

each was brought to Judge Keenan s courtroom by a different elevator.491 There is 

one other courtroom on the same floor as Judge Keenan s, and separate prisoner

elevators serve the two courtrooms.492 Ressam was brought up in the other courtroom s elevator.493

Haouari found Ressam s testimony so upsetting that he repeatedly banged his

head against the counsel table.494 In time, he knocked himself out.495 Judge Keenan had to excuse the jury and seek medical attention for the defendant.496

One juror, who worked as a waitress, had to be replaced when she recognized

at work a journalist covering the trial and struck up a conversation with him about 

it.497

On July 13, a jury acquitted Haouari of aiding and abetting what became

known as the millennium bombing plot, but convicted him of conspiracy and

fraud.498 On January 16, 2002, Judge Keenan sentenced Haouari to 24 years in

prison.499 A year later, the court of appeals affirmed the conviction and sentence.500

On July 27, 2005, at the conclusion of Ressam s cooperation with investigations and prosecutions,501 Judge Coughenour sentenced Ressam to 22 years in

prison.502

 491. Interview with Hon. John F. Keenan, Nov. 6, 2009.

492. Id.

493. Id.

494. Id.

495. Id.

496. Id.

497. Id.

498. Haouari v. United States, 510 F.3d 350, 351 (2d Cir. 2007); United States v. Meskini, 319 

F.3d 88, 91 (2d Cir. 2003); Haouari v. United States, 429 F. Supp. 2d 671, 676 (S.D.N.Y. 2006);

United States v. Haouari, No. 1:00-cr-15, 2001 WL 1154714 at *1 (S.D.N.Y. Sept. 28, 2001); see

Jane Fritsch, Algerian Sentenced in 1999 Plot to Bomb Airport, N.Y. Times, Jan. 17, 2002, at

A26; Christine Haughney, Third Algerian Convicted in Bombing Plot, Wash. Post, July 14, 2001, at A22; Laura Mansnerus, Man Is Guilty in Bomb Plot at Millennium, N.Y. Times, July 14, 2001, at B1; Josh Meyer, LAX Bombing Plot Figure Is Convicted, L.A. Times, July 14, 2001, at 8.

499. Haouari, 429 F. Supp. 2d at 673; United States v. Ressam, 629 F.3d 793, 810 (9th Cir. 2010); see Fritsch, supra note 498; John J. Goldman, Algerian Gets Prison in LAX Bomb Plot, L.A. Times, Jan. 17, 2002, at 13.

500. United States v. Meskini, 319 F.3d 88 (2d Cir. 2003); Haouari, 429 F. Supp. 2d at 673;

see Benjamin Weiser, Conviction Upheld in Bomb Plot, N.Y. Times, Jan. 28, 2003, at B7.

501. Judge Coughenour observed that the gentler approach of Seattle-based investigators was

more effective in obtaining Ressam s cooperation than the more aggressive approach of New

York-based investigators, who took over during the prosecution of Haouari. Interview with Hon. John C. Coughenour, Oct. 3, 2008.

502. Ressam, 629 F.3d at 805, 814; United States v. Ressam, 474 F.3d 597, 601 (9th Cir. 2007); Ressam July 27, 2005, Transcript, supra note 488; see Hal Bernton & Sara Jean Green, Ressam Judge Decries U.S. Tactics, Seattle Times, July 28, 2005, at A1; Jonathan Hafetz, Habeas

Corpus After 9/11 209 (2011); Sarah Kershaw, Terrorist in 99 U.S. Case Is Sentenced to 22

Years, N.Y. Times, July 28, 2005, at A20; Paul Shukovsky, 22 Years, Seattle Post-Intelligencer, 
National Security Case Management Studies (11/14/2011) 57

A year and a half later, the court of appeals reversed Ressam s conviction on

one count, for carrying explosives while committing a felony, reasoning that carrying explosives did not relate to the felony of signing a false name on a customs

declaration.503 The court remanded the case for resentencing.504

On December 7, 2007, the Supreme Court agreed to review the court of appeals decision.505 On March 25, 2008, Attorney General Michael B. Mukasey, who, as a judge, had presided over the prosecution of blind Sheik Omar Abdel

Rahman, argued the government s case to reinstate the conviction.506 The Supreme Court agreed with the argument and reinstated the conviction on May

19.507 On December 3, Judge Coughenour resentenced Ressam to 22 years.508 On 

February 2, 2010, a three-judge panel of the court of appeals determined that the

sentence was too lenient and remanded the case for resentencing by a different

 July 28, 2005, at A1; Tomas Alex Tizon & Lynn Marshall, Would-Be Millennium Bomber Ressam 

Gets 22-Year Sentence, L.A. Times, July 28, 2005, at 10.

503. Ressam, 474 F.3d at 598 604; see Ressam, 629 F.3d at 814; Hal Bernton & Mike Carter, Appeals Court Throws Out 1 Ressam Felony Conviction, Seattle Times, Jan. 17, 2007, at B3; Paul

Shukovsky, Court Reverses 1 Count Against Ressam, Seattle Post-Intelligencer, Jan. 17, 2007, at

B1; Jennifer Steinhauer, Appeals Court Vacates Term of Algerian in Bomb Plot, N.Y. Times, Jan. 17, 2007, at A13; Henry Weinstein, Court Voids Sentence in LAX Plot, L.A. Times, Jan. 17, 2007, at 8.

504. Ressam, 474 F.3d at 604; see Ressam, 629 F.3d at 814; Shukovsky, supra note 503. Judge Marsha S. Berzon joined Judge Pamela Ann Rymer s opinion for the court, but Judge

Arthur L. Alarcón dissented from the reversal of the conviction and determined that Ressam s

sentence was too lenient. Ressam, 474 F.3d at 604 08 (Alarcón, dissenting). Six judges dissented

from the court s refusal to rehear the case en banc. United States v. Ressam, 491 F.3d 997 (9th 

Cir. 2007).

505. United States v. Ressam, 552 U.S. 1074 (2007); See Robert Barnes, Cases of 2 U.S. Citizens in Iraq to Be Heard, Wash. Post, Dec. 8, 2007, at A2; Linda Greenhouse, Americans Held in

Iraq Draw Justices Attention, N.Y. Times, Dec. 8, 2007, at A15.

506. See Carrie Johnson & Robert Barnes, After a Lifetime in Law, a First Day in Court, Wash. Post, Mar. 26, 2008, at A4; David G. Savage, Justices Hear Terrorism Cases, L.A. Times, Mar. 26, 2008, at 17; Philip Shenon, Mukasey Goes to Court to Argue a Terrorism Case, N.Y. Times, Mar. 26, 2008; see also supra, First World Trade Center Bombing. Judge Coughenour has otherwise been critical of Judge Mukasey s policy suggestions on the

handling of terrorism cases. John C. Coughenour, Op-Ed, How to Try a Terrorist, N.Y. Times, Nov. 1, 2007; John C. Coughenour, Op-Ed, The Right Place to Try Terrorism Cases, Wash. Post, 

July 27, 2008, at B7.

507. United States v. Ressam, 553 U.S. 272 (2008); see Ressam, 629 F.3d at 814; William

Branigin, High Court Af irms Terrorism Conviction, Wash. Post, May 20, 2008, at A6; Linda

Greenhouse, Court Upholds Child Pornography Law, Despite Free Speech Concerns, N.Y. Times, 

May 20, 2008, at A17; Justices Rule Against Ressam in Terror Case, Seattle Post-Intelligencer, 

May 20, 2008, at B2; David G. Savage, Full Prison Term Restored for Millennium Bomber, L.A. Times, May 20, 2008, at 11.

508. Amended Judgment, United States v. Ressam, No. 2:99-cr-666 (W.D. Wash. Dec. 3, 2008); Ressam, 629 F.3d at 805; see Mike Carter, Ressam Recants Everything Said as an Infor- mant, Seattle Times, Dec. 4, 2008, at A1; Paul Shukovsky, Ressam Sentence Reinstated, Seattle

Post-Intelligencer, Dec. 4, 2008, at B1.
58 National Security Case Management Studies (11/14/2011)

judge.509 This decision was reviewed by an 11-judge en banc panel on September 

21, 2011.510

Challenge: Classified Evidence

Invoking the Classified Information Procedures Act (CIPA), the government

asked Judge Coughenour to review classified documents to determine whether or

not they were discoverable.511 Judge Coughenour reviewed the documents without the assistance of a law clerk, because there was not time to obtain top secret

clearance.512 The documents were delivered to the judge by a classified information security officer and reviewed by the judge under the security officer s

watch.513 They were stored in a safe to which the officer, and not the judge, had

access.514 Judge Coughenour decided that the documents were not discoverable.515

Challenge: Examination of Foreign Witnesses

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.516 So, by stipulation of the parties, Judge Coughenour traveled to Canada

to preside over video depositions in both Montreal and Vancouver to obtain the

testimony.517 A Canadian court official attended to rule on potential issues of Canadian law.518 Ressam participated by video conference from his jail cell with the

assistance of an Arabic interpreter.519

 509. Ressam, 629 F.3d 793 (opinion by Circuit Judge Arthur L. Alarcón, joined by Circuit

Judge Richard R. Clifton; Circuit Judge Ferdinand F. Fernandez dissented from both the reversal

of the sentence and the reassignment to a different judge), amending 593 F.3d 1095; see Hafetz, 

supra note 502, at 209; John Schwartz, Appeals Court Throws Out Sentence in Bombing Plot, Calling It Too Light, N.Y. Times, Feb. 3, 2010, at A15; Jennifer Sullivan, Court: Ressam Sentence 

Failed to Protect Public, Seattle Times, Feb. 3, 2010, at A1; Carol J. Williams, 22-Year Term

in LAX Bomb Plot Overturned, L.A. Times, Feb. 3, 2010, at 9.

510. http://www.ca9.uscourts.gov/media/view_video_subpage.php?pk_vid=0000006165 (video recording of oral argument); Docket Sheet, United States v. Ressam, No. 09-30000 (9th Cir. Jan. 5, 2009).

511. See Mike Carter & Steve Miletich, Judge to Review Ressam Papers, Seattle Times, Nov. 3, 2000, at B1; Sam Skolnik, Ressam Prosecutors Reveal Existence of Classified Data, Seattle

Post-Intelligencer, Nov. 3, 2000, at B2.

512. Interview with Hon. John C. Coughenour, Oct. 3, 2008.

513. Id.

514. Id.

Judge Coughenour preferred not to have to deal with the lock and combination himself. Interview with Dep t of Justice Litig. Sec. Group Staff, Jan. 7, 2010. 515. Interview with Hon. John C. Coughenour, Oct. 3, 2008.

516. See Sam Skolnik, Bomb Plot Case Inquiry Moves to Vancouver, B.C., Seattle PostIntelligencer, July 20, 2000, at B3.

517. See Ressam Mar. 1, 2001, Transcript, supra note 464; Skolnik, supra note 516. 518. See Ressam Mar. 1, 2001, Transcript, supra note 464. 519. Interview with Hon. John C. Coughenour, Oct. 3, 2008; see Seattle Judge to Hear from

Terrorism-Case Witnesses, Seattle Times, Oct. 27, 2000, at B2.
National Security Case Management Studies (11/14/2011) 59

On one occasion, after Judge Coughenour had traveled to Canada for the deposition, a Canadian judge ruled, at a proceeding from which Judge Coughenour

was excluded, that the witness did not have to testify.520

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 video tapes.521

Challenge: Court Security

At Ressam s first appearance in court in Seattle, on December 17, 1999, 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 [U.S. Magistrate Judge David] Wilson s courtroom and armed officers patrolled the streets as Ressam was brought to the courthouse. 522

For Ressam s trial also, security at the Roybal courthouse in Los Angeles was

enhanced, including added patrols, bomb-sniffing dogs, and inspections of cars

entering the underground garage.523

Challenge: Jury Security

Judge Coughenour was not asked to use an anonymous jury; he has never used

one.524 But jurors did not report directly to the courthouse; instead they met at a

secret location from which they were transported to the courthouse by deputy 

marshals.525

Challenge: Witness Security

On March 29, 2001, Meskini testified at Ressam s trial.526 It was reported that his

testifying would require his entering the witness protection program.527 He was

brought to the courtroom through a side door.528

Judge Coughenour overruled the government s attempts to protect the identity

of another witness, such as taking testimony remotely or behind a screen and

 520. Ressam Apr. 27, 2005, Transcript, supra note 488; Interview with Hon. John C. Coughenour, Oct. 3, 2008.

521. Interview with Hon. John C. Coughenour, Oct. 3, 2008; see Ressam Mar. 1, 2001, Transcript, supra note 464. 522. Sunde & Porterfield, supra note 427. 523. See Carter, supra note 466. 524. Interview with Hon. John C. Coughenour, Oct. 3, 2008.

525. Id.

Judge Coughenour preferred not to have to deal with the lock and combination himself. Interview with Dep t of Justice Litig. Sec. Group Staff, Jan. 7, 2010. 526. See Adams, supra note 446; Booth, supra note 470; Steve Miletich, Key Witness Testifies

Against Ressam, Seattle Times, Mar. 30, 2001, at B1; Sam Skolnik, U.S. Puts Reputed Fraud on

the Stand, Seattle Post-Intelligencer, Mar. 30, 2001, at B1.

527. See Mike Carter, Witness Tells of Ticket to Pakistan, Seattle Times, Mar. 15, 2001, at B1.

528. See Miletich, supra note 526.
60 National Security Case Management Studies (11/14/2011)

withholding background information, and the government decided not to use the

witness.529

 529. Interview with Hon. John C. Coughenour, Oct. 3, 2008.
National Security Case Management Studies (11/14/2011) 61

Would-Be Spy

United States v. Regan

(Gerald Bruce Lee, E.D. Va.)

On August 23, 2001, federal agents arrested Brian Patrick Regan, a resident of

Bowie, Maryland, and a retired master sergeant of the U.S. Air Force, at Dulles

International Airport, aborting his trip to Zurich.530

Regan had been under surveillance for months, after a foreign source passed on a letter from an unidentified US intelligence official offering to sell information. The letter

was riddled with misspellings like enprisoned and esponage, which led the FBI to

look for a bad speller within the intelligence community. Regan, who was dyslexic, became the prime suspect. He would later be known as the spy who couldn t spell.531 The government filed a criminal complaint against him the next day in the

U.S. District Court for the Eastern District of Virginia, accusing him of attempted

espionage.532 The complaint accused him of attempting to sell to Iraq, Libya, and

China top-secret information to which he had access as a contract employee of the 

National Reconnaissance Office (NRO).533 Regan was indicted on October 23, 2001,534

and superseding indictments were filed on February 14

535

and July 24, 2002.536 The government filed a notice of intent to seek the death penalty on April 

19, 2002.537 The court assigned the case to Judge Gerald Bruce Lee.538

 530. United States v. Regan, 221 F. Supp. 2d 672, 675 (E.D. Va. 2002); United States v. Regan, 221 F. Supp. 2d 666, 669 (E.D. Va. 2002); United States v. Regan, 221 F. Supp. 2d 661, 662

63 (E.D. Va. 2002); see Yudhijit Bhattacharjee, Tale of a Would-Be Spy, Buried Treasure, and

Uncrackable Code, Wired, Feb. 2010, at 82 (reporting that Regan was arrested aboard a mobile

lounge); Rona Kobel, An Unlikely Setting for Global Intrigue Espionage, Balt. Sun, Feb. 11, 2003, 

at 1B; Retired Air Force Sergeant Accused of Spying Is Going to Trial, N.Y. Times, Jan. 13, 2003, 

at A19 [hereinafter Going to Trial]; Susannah Rosenblatt, Arduous Dig to Find Spy s Buried

Stash, L.A. Times, July 31, 2003, at 24.

531. Bhattacharjee, supra note 530. 532. United States v. Regan, 228 F. Supp. 2d 742, 745 (E.D. Va. 2002); Regan, 221 F. Supp. 2d at 674; Regan, 221 F. Supp. 2d at 668; Regan, 221 F. Supp. 2d at 662; Docket Sheet, United 

States v. Regan, No. 1:01-cr-405 (E.D. Va. Oct. 23, 2001).

533. United States v. Regan, 281 F. Supp. 2d 795, 801 (E.D. Va. 2002); Regan, 228 F. Supp. 2d at 745; Regan, 221 F. Supp. 2d at 674; Regan, 221 F. Supp. 2d at 668; Regan, 221 F. Supp. 2d

at 662; see Going to Trial, supra note 530. Regan served in the U.S. Air Force from 1980 to 2001, retiring as a master sergeant. Regan, 228 F. Supp. 2d at 745; Regan, 221 F. Supp. 2d at 674; Regan, 221 F. Supp. 2d at 668; Regan, 221 

F. Supp. 2d at 662; see Going to Trial, supra note 530. Until his retirement, he worked at the Signals Intelligence Applications Integration Office of the NRO. Regan, 228 F. Supp. 2d at 745; Regan, 221 F. Supp. 2d at 674; Regan, 221 F. Supp. 2d at 668; Regan, 221 F. Supp. 2d at 662. 534. Regan, 228 F. Supp. 2d at 745; Regan, 221 F. Supp. 2d at 674; Regan, 221 F. Supp. 2d at

668; Regan, 221 F. Supp. 2d at 662; Docket Sheet, supra note 532. 535. Regan, 228 F. Supp. 2d at 745; Regan, 221 F. Supp. 2d at 675; Regan, 221 F. Supp. 2d at

669; Regan, 221 F. Supp. 2d at 663; Docket Sheet, supra note 532. 536. Regan, 228 F. Supp. 2d at 746 (noting the filing of a superseding indictment in light of

the Supreme Court s decision in Ring v. Arizona, 536 U.S. 584 (2002)); Regan, 221 F. Supp. 2d at 
62 National Security Case Management Studies (11/14/2011)

On February 20, 2003, a jury convicted Regan of trying to sell secrets to Iraq 

and China, but acquitted him of trying to sell secrets to Libya.539 The jury rejected 

the death penalty on February 24,540 and Regan was sentenced on March 20 to life 

in prison without the possibility of parole.541 Regan agreed to accept the life sentence in exchange for the government s not prosecuting his wife and allowing her

to keep part of his military pension.542

Regan also agreed to disclose what he had done with classified information.543

Regan directed agents to a green plastic toothbrush holder and a purple plastic salt 

shaker, each hidden near exit ramps off Interstate 95 between Washington, D.C., and Richmond, Virginia.544 These containers held coded descriptions of the locations of 19 buried bundles of classified documents 20,000 pages, five compact

discs, and five videotapes hidden in Pocahontas State Park in Virginia and Patapsco Valley State Park in Maryland.545

Challenge: Classified Evidence

As is common for a spy case, Regan s prosecution involved classified information

to which the defendant and defense counsel had to be given access.546 The defendant and his attorneys were given access to the classified information and a computer in a sensitive compartmented information facility (SCIF) located in the

courthouse.547

 675 (same); Regan, 221 F. Supp. 2d at 669 (same); Regan, 221 F. Supp. 2d at 663 (same); Docket

Sheet, supra note 532. 537. Regan, 228 F. Supp. 2d at 746; Regan, 221 F. Supp. 2d at 675; Regan, 221 F. Supp. 2d at

669; Regan, 221 F. Supp. 2d at 663; Docket Sheet, supra note 532; see Going to Trial, supra note 

530.538. Docket Sheet, supra note 532; see U.S. Prosecutors Reconsider, Back Delay in Espionage 

Suspect s Trial, L.A. Times, Apr. 25, 2002, at 25 [hereinafter Prosecutors Reconsider]; Would-Be 

Spy Given Life in Prison, L.A. Times, Mar. 21, 2003, at 29 [hereinafter Life in Prison].

Tim Reagan and Joy Richardson interviewed Judge Lee for this report in the judge s chambers

on October 2, 2006.

539. Docket Sheet, supra note 532; see Josh Meyer, Would-Be Spy Won t Face Death Penalty, L.A. Times, Feb. 25, 2003, at 15; The Week That Was, Balt. Sun, Feb. 23, 2003, at 2C; Life in Prison, supra note 538. 540. Docket Sheet, supra note 532; see Meyer, supra note 539; Rosenblatt, supra note 530; 

The Week That Was, Balt. Sun, Mar. 2, 2003, at 2C; Life in Prison, supra note 538. 541. Docket Sheet, supra note 532; see Rosenblatt, supra note 530; Life in Prison, supra note 

538.542. See Bhattacharjee, supra note 530; Life in Prison, supra note 538. 543. See Bhattacharjee, supra note 530; Rosenblatt, supra note 530. 544. See Rosenblatt, supra note 530. 545. See Bhattacharjee, supra note 530; Rosenblatt, supra note 530. 546. United States v. Regan, 281 F. Supp. 2d 795, 801 (E.D. Va. 2002).

Because classified information is an issue in many cases brought in the district that is home to

the Pentagon and the Central Intelligence Agency, Judge Lee requires all of his law clerks to have

security clearances. Interview with Hon. Gerald Bruce Lee, Oct. 2, 2006.

547. Regan, 281 F. Supp. 2d at 800 01; see Reagan, supra note 173, at 19 (describing SCIFs);

see also Priest & Arkin, supra note 239, at 50 (noting that SCIF is pronounced skiff ).
National Security Case Management Studies (11/14/2011) 63

The SCIF is a secure facility located in the courthouse where the Defendant and his

attorneys may lawfully view classified information. Defense counsel may not remove

certain classified information from the SCIF, and the Defendant may not remove classified information from the SCIF. . . . The SCIF has been provided to the espionage defendant and his counsel so that they may have access to classified information to prepare for

trial. The Defendant and his counsel must have access to classified information in a

prosecution free zone. Defense counsel and their client reasonably expect to be free to

work in the SCIF to compose work papers, trial memoranda, and trial strategy, free from

the roving eye of the prosecutor or the Court. Because the classified information involved 

in this case relates to national security, the information must be kept secure. The SCIF affords the Government a place to continue to protect classified information.548 Discovered in Regan s jail cell were apparently typewritten letters to his wife

and children and a page of code.549 These documents appeared to concern the locations of hidden classified information.550 The government sought permission

from the court to search the SCIF to see if these documents were improperly

created on the computer there.551 Judge Lee allowed a search, but established special procedures to preserve the attorney client privilege and work-product protection.552

In order to avoid any claims that the Government has had access to defense counsel s

pre-trial preparation, the Court is not going to allow the United States Attorney or the

Federal Bureau of Investigation to conduct the search. Rather the Court is going to refer

this matter to a United States Magistrate Judge to supervise the process of securing the

defense s SCIF computer hard drives and disks for imaging and their return to counsel. The United States Magistrate Judge will work with a court selected neutral computer expert with proper security clearances to image the Defendant s computer hard drives and

to search for the enumerated four items: (1) two letters to Anette Regan; (2) letters or

memoranda to his children; and (3) a page of code composed of letters and numbers. All

of the items listed above will be attached to the court s Order, UNDER SEAL. If these

items are found on the hard drive, then the computer expert will provide this information

in electronic and hard copy to the United States Magistrate Judge for review. The United

States Magistrate Judge is directed to report the computer expert s findings to all counsel

and the District Judge. [The CIPA classified information security officer] is directed to

maintain the imaged hard drive in a secure location until the verdict is reached in this

case and further order of the court. The accompanying order will provide specific details

regarding the logistics of the computer imaging and search process.

VIII. Post-Verdict Search Procedures

After the jury has reached its verdict in this case, the Government may seek leave of

Court to conduct a further search on the hard drives and floppy disks. The Government 

shall notify defense counsel of its intentions by a written motion. The Government must

notice its motion for a hearing with the Clerk s Office, and then the motion shall be heard

 Defense experts also had to obtain security clearances to examine classified documents. See 

Prosecutors Reconsider, supra note 538. 548. Regan, 281 F. Supp. 2d at 801; see Anita Huslin, If These Walls Could Talk . . ., Wash. Post, May 28, 2006, at D1 ( the SCIF is a sanctuary, the ultimate members-only club for the keepers of secrets ). 549. Regan, 281 F. Supp. 2d at 800, 807.

550. Id. at 800, 804 05.

551. Id. at 799 800.

552. Id. at 800.
64 National Security Case Management Studies (11/14/2011)

by the Court. Once the Government has reviewed the material that was seized pursuant to 

the search, the Government may make use of the items as it deems proper.

Additionally, the appointed computer expert shall not reveal the contents of the

search to anyone except the Magistrate Judge appointed to work on this case.

This Memorandum Opinion and its accompanying Order SHALL be placed UNDER

SEAL, to avoid revealing any information that might adversely affect a potential juror in

the trial of Defendant Brian Patrick Regan.553 The unit of the Justice Department that provides the courts with classified information security officers the Litigation Security Group within the Management Division554 conducted the search.555

 553. Id. at 806 07. The memorandum opinion was unsealed on March 10, 2003. Docket Sheet, 

supra note 532. 554. See Reagan, supra note 173, at 17 18.

555. Interview with Dep t of Justice Litig. Sec. Group Staff, Feb. 3, 2010.
National Security Case Management Studies (11/14/2011) 65

Detroit

United States v. Koubriti

(Gerald E. Rosen, E.D. Mich.)

Six days after the September 11, 2001, attacks on the United States, federal agents 

visited a suspected Detroit apartment residence of Nabil al-Marabh, a suspect in

the attacks.556 Apparently al-Marabh had moved, and the current residents

Karim Koubriti, Ahmed Hannan, and Farouk Ali-Haimoud consented to a

search.557 Agents found fraudulent identification documents in the name of Youssef Hmimssa, a former roommate, who had asked them to hold the documents for

him.558 Koubriti and Hannan admitted that they knew that the documents were

fraudulent.559 They were arrested that day and charged on the following day; they

were indicted on September 27 for possession of false documents.560 Hmimssa, 

who was arrested in Cedar Rapids, Iowa, also was indicted on September 27.561

Ali-Haimoud was arrested with Koubriti and Hannan, but he was not indicted until March 27, 2002.562 Abdel Ilah Elmardoudi, the alleged ringleader in Chicago,

 556. Koubriti v. Convertino, 593 F.3d 459, 462 (6th Cir. 2010) (finding prosecutorial immunity in one defendant s civil action); United States v. Koubriti, 305 F. Supp. 2d 723, 724 25, 727

(E.D. Mich. 2003) (sanctioning Attorney General John Ashcroft for false and public statements

about the case in violation of the court s gag order); United States v. Koubriti, 252 F. Supp. 2d

424, 426 (E.D. Mich. 2003) (agreeing to partially close the jury voir dire); United States v. Koubriti, 199 F. Supp. 2d 656, 658 59 (E.D. Mich. 2002) (denying motions to suppress evidence acquired during the search of the apartment); United States v. Koubriti, No. 2:01-cr-80778, 2001

WL 1525270, at *1 (E.D. Mich. Oct. 16, 2001) (denying bond release pending trial); Trying Cases, supra note 226, at 21; see David Johnston, 3 Held in Detroit After Aircraft Diagrams Are

Found, N.Y. Times, Sept. 20, 2001, at B2; Philip Shenon & Don Van Natta, Jr., U.S. Says 3 Detainees May Be Tied to Hijackings, N.Y. Times, Nov. 1, 2001, at A1; Don Van Natta, Jr., Hun- dreds of Arrests, but Promising Leads Unravel, N.Y. Times, Oct. 21, 2001, at B1.

557. Koubriti, 305 F. Supp. 2d at 727; Koubriti, 199 F. Supp. 2d at 660 61; Koubriti, 2001

WL 1525270, at *1; see This American Life: The Prosecutor (PRI radio broadcast May 31, 2008)

[hereinafter Prosecutor].

Two days later, al-Marabh was arrested in Burbank, Illinois. See Shenon & Van Natta, supra 

note 556; Jodi Wilgoren, Trail of Man Sought in 2 Plots Leads to Chicago and Arrest, N.Y. Times, Sept. 21, 2001, at B8. The government ultimately decided to merely deport him. See Danny Hakim, Trial Set to Begin for Four Men Accused of Being in Terror Cell, N.Y. Times, Mar. 17, 

2003, at A15.

558. Koubriti, 305 F. Supp. 2d at 727; Koubriti, 252 F. Supp. 2d at 426; Koubriti, 199 F. Supp. 

2d at 658; Koubriti, 2001 WL 1525270, at *2; see Johnston, supra note 556; Shenon & Van Natta, 

supra note 556; Prosecutor, supra note 557; Van Natta, supra note 556. 559. Koubriti, 2001 WL 1525270, at *2, 6.

560. Koubriti, 252 F. Supp. 2d at 426; Koubriti, 199 F. Supp. 2d at 658 59; Koubriti, 2001

WL 1525270, at *1.

561. Koubriti, 199 F. Supp. 2d at 658; Koubriti, 2001 WL 1525270, at *1 n.2; see Danny Hakim, Informer Is Cited as the Key to Unlocking a Terrorist Cell, N.Y. Times, Aug. 30, 2002, at

A10; Shenon & Van Natta, supra note 556; Van Natta, supra note 556. 562. Koubriti, 252 F. Supp. 2d at 426; Koubriti, 199 F. Supp. 2d at 658 n.1.
66 National Security Case Management Studies (11/14/2011)

also was indicted on March 27.563 On August 28, 2002, the government added

charges against the defendants for material support of terrorism.564 The U.S. District Court for the Eastern District of Michigan assigned the case to Judge Gerald

E. Rosen.565

Hmimssa s prosecution was severed from the other defendants because he

agreed to cooperate with the government and testify against them.566 On September 9, 2005, he was sentenced to more than six years in prison for document

fraud.567 He was deported to Morocco in 2007.568

This case was a high-profile case that had received some national press coverage and a lot of local press coverage.569 The court selected 280 prospective jurors

for the case, and the judge greeted them on March 18, 2003, with a speech disclosing the case on which they might serve and welcoming them to their opportunity to provide civic service.570

To select jurors, Judge Rosen worked with the attorneys to prepare a jury 

questionnaire.571 Based on answers to this questionnaire, the court and the attor-

 563. Koubriti, 199 F. Supp. 2d at 658 n.1; see United States v. Elmardoudi, 501 F.3d 935, 937 38 (8th Cir. 2007); see also Hakim, supra note 557; Prosecutor, supra note 557. Elmardoudi was arrested in North Carolina near Greensboro on November 4, 2002. Elmardoudi, 501 F.3d at 937; see Danny Hakim, Man Accused of Being Leader of Detroit Terror Cell Is

Arrested, N.Y. Times, Nov. 15, 2002, at A20; Dan Eggen & Allan Lengel, Alleged Leader of

Sleeper Cell Arrested in N.C., Wash. Post, Nov. 15, 2002, at A28.

564. United States v. Koubriti, 305 F. Supp. 2d 723, 731 (E.D. Mich. 2003); see Douglas Farah 

& Tom Jackman, 6 Accused of Conspiracy to Aid in Terror Attacks, Wash. Post, Aug. 29, 2002, at 

A1.

565. Docket Sheet, United States v. Koubriti, No. 2:01-cr-80778 (E.D. Mich. Sept. 27, 2001)

[hereinafter E.D. Mich. Koubriti Docket Sheet]; Gerald E. Rosen, The War on Terrorism in the

Courts, 5 Cardozo Pub. L. Pol y & Ethics J. 101, 102 (2006) ( I presided over the nation s first

post-September 11 terrorism trial ); see Danny Hakim, Judge Reverses Convictions in Detroit 

Terrorism Case, N.Y. Times, Sept. 3, 2004, at A12.

Tim Reagan interviewed Judge Rosen for this report in the judge s chambers on December 7, 2006, and by telephone on January 3 and April 18, 2007.

566. Koubriti, 305 F. Supp. 2d at 734; see Koubriti v. Convertino, 593 F.3d 459, 462 n.3 (6th

Cir. 2010); Koubriti, 199 F. Supp. 2d at 658 n.1.

In the deal, Mr. Hmimssa received 46 months in prison for 10 unrelated felonies committed in

three states; he could have faced up to 81 years. Danny Hakim, 2 Arabs Convicted and 2 Cleared 

of Terrorist Plot Against the U.S., N.Y. Times, June 4, 2003, at A1.

567. Criminal Judgment, Koubriti, No. 2:01-cr-80778 (E.D. Mich. Sept. 9, 2005) (sentencing

Hmimssa to 78 months in prison); see Cecil Angel, Ex-Terrorism Trial Witness Gets Maximum

Sentence, Detroit Free Press, Sept. 2, 2005, at 6. 

Hmimssa was released from prison on May 25, 2007. http://www.bop.gov (reg. no. 20451- 424).

568. See David Ashenfelter, Terrorism Case s Witness Deported, Detroit Free Press, Nov. 2, 2007, at 2.

569. Interview with Hon. Gerald E. Rosen, Dec. 7, 2006.

570. E.D. Mich. Koubriti Docket Sheet, supra note 565 (noting voir dire from Mar. 18 to Mar. 26, 2003); Gerald E. Rosen, United States v. Koubriti: Preliminary Voir Dire (Mar. 18, 2003) (text 

of speech); Interview with Hon. Gerald E. Rosen, Dec. 7, 2006.

571. Gerald E. Rosen, United States v. Koubriti: Jury Questionnaire (Mar. 18, 2003); Interview 

with Hon. Gerald E. Rosen, Dec. 7, 2006.
National Security Case Management Studies (11/14/2011) 67

neys were able to sort the potential jurors into three groups: (1) apparently suitable, (2) possibly suitable, and (3) not suitable.572 Jurors were questioned individually, beginning with those apparently suitable, in random order, and a jury

was selected from the approximately 65 80 potential jurors in that group.573

On June 3, the jury convicted Koubriti and Elmardoudi of both terrorism and

document-fraud charges, convicted Hannan of document-fraud charges only, and

acquitted Ali-Haimoud.574

In December 2003, it came to the court s attention that the lead prosecutor in

the case had withheld from defense counsel a potentially exculpatory or impeaching document.575 The defendant moved for a mistrial, but the government maintained that the document was not material.576 Judge Rosen ordered an investigation, which showed that the withholding of this document was the tip of a misconduct iceberg.577

As thoroughly detailed in the Government s filing, at critical junctures and on critical issues essential to a fair determination by the jury of the issues tried in this case, the prosecution failed in its obligation to turn over to the defense, or to the Court, many documents 

and other information, both classified and non-classified, which were clearly and materially exculpatory of the Defendants as to the charges against them. Further, as the Government s filing also makes abundantly clear, the prosecution materially misled the

Court, the jury and the defense as to the nature, character and complexion of critical evidence that provided important foundations for the prosecution s case.578

Judge Rosen concluded that the prosecution early on in the case developed and

became invested in a view of the case and the Defendants culpability and role as

to the terrorism charges, and then simply ignored or avoided any evidence or information which contradicted or undermined that view. 579

 572. Interview with Hon. Gerald E. Rosen, Dec. 7, 2006.

573. Id.

574. United States v. Koubriti, 509 F.3d 746, 748 (6th Cir. 2007); United States v. Koubriti, 305 F. Supp. 2d 723, 736 (E.D. Mich. 2003); see Koubriti v. Convertino, 593 F.3d 459, 463 & n.7

(6th Cir. 2010); United States v. Elmardoudi, 501 F.3d 935, 938 (8th Cir. 2007); see also Hakim, 

supra note 566; Robert E. Pierre & R. Jeffrey Smith, Jury Splits Verdict in Terror Trial, Wash. Post, June 4, 2003, at A10; Prosecutor, supra note 557. Ali-Haimoud sued the publisher of The Terrorist Recognition Handbook for falsely identifying 

him, with a photograph, as a known Al-Qaeda member. Notice of Removal, Ali-Haimoud v. Nance, No. 2:04-cv-74737 (E.D. Mich. Dec. 3, 2004). The case was remanded to state court on

stipulation that the plaintiff would neither seek nor accept more than $75,000 in damages. Stipulation, id. (Apr. 22, 2005).

575. United States v. Koubriti, 336 F. Supp. 2d 676, 678 (E.D. Mich. 2004); United Koubriti, 297 F. Supp. 2d 955, 958 61 (E.D. Mich. 2004); Trying Cases, supra note 226, at 22; see Koubriti, 593 F.3d at 463; Prosecutor, supra note 557. 576. Interviews with Hon. Gerald E. Rosen, Dec. 7, 2006, and Apr. 18, 2007.

577. Trying Cases, supra note 226, at 23; see Koubriti, 593 F.3d at 463; Prosecutor, supra

note 557. 578. Koubriti, 336 F. Supp. 2d at 680 81; see also id. at 681 82 n.5 ( Having itself reviewed

[additional] classified materials, the Court observes that they provide additional and substantial 

support for the conclusions reached in the Government s filing. ). 579. Id. at 681; see Hakim, supra note 565 (quoting text).
68 National Security Case Management Studies (11/14/2011)

As a result, at the request of both the government and the defense, on September 2, 2004, the court dismissed the terrorism charges against Koubriti and Elmardoudi and ordered a new trial on the fraudulent-document charges against

Koubriti, Elmardoudi, and Hannan.580 The government elected not to pursue further the charges tried.581

The government nevertheless filed a fourth superseding indictment against

Koubriti and Hannan on December 15, charging them with faking an automobile

accident in July 2001 to defraud an insurance company.582 Hannan pleaded guilty

on March 22, 2005, agreeing to a prison term of time served and deportation to

Morocco.583 The court released Koubriti on bond on October 12, 2004.584 Koubriti 

unsuccessfully moved to dismiss the fourth superseding indictment as double jeopardy and otherwise a violation of due process.585 On February 9, 2010, Judge 

Rosen granted the government s motion to dismiss Koubriti s indictment for successful completion of pretrial diversion.586

 The prosecutor and a government witness were acquitted of wrongdoing in a criminal trial. Docket Sheet, United States v. Convertino, No. 2:06-cr-20173 (E.D. Mich. Mar. 29, 2006) (noting

an Oct. 31, 2007, jury verdict of not guilty); Koubriti, 593 F.3d at 464; Trying Cases, supra note 

226, at 23; see Spencer S. Hsu, Ex-Prosecutor, Security Officer Cleared in Terrorism Case, Wash. 

Post, Nov. 1, 2007, at A3; Philip Shenon, Ex-Prosecutor Acquitted of Misconduct in 9/11 Case, N.Y. Times, Nov. 1, 2007, at A17; Prosecutor, supra note 557. 580. United States v. Koubriti, 509 F.3d 746, 748 (6th Cir. 2007); Koubriti, 336 F. Supp. 2d at

682; Trying Cases, supra note 226, at 23; see Koubriti, 593 F.3d at 463 64; United States v. Elmardoudi, 501 F.3d 935, 938 & n.4 (8th Cir. 2007); see also Hakim, supra note 565; Richard B. Schmitt, Judge, Citing Misconduct, Tosses Terror Convictions, L.A. Times, Sept. 3, 2004, at 15;

Prosecutor, supra note 557. 581. United States v. Koubriti, 435 F. Supp. 2d 666, 670 & n.5 (E.D. Mich. 2006); Order to

Dismiss Third Superseding Indictment, United States v. Koubriti, No. 2:01-cr-80778 (E.D. Mich. Jan. 18, 2005); Prosecutor, supra note 557. 582. Koubriti, 509 F.3d at 748; Fourth Superseding Indictment, Koubriti, No. 2:01-cr-80778 

(E.D. Mich. Dec. 15, 2004); see Koubriti, 593 F.3d at 464; Koubriti, 435 F. Supp. 2d at 668, 670;

see also Terror Case Is Switched to Fraud Charges, Wash. Post, Dec. 16, 2004, at A10.

When federal agents first searched Koubriti and Hannan s apartment, they noticed airport- employee badges, which the agents regarded as alarming evidence. United States v. Koubriti, 199

F. Supp. 2d 656, 660 (E.D. Mich. 2002); United States v. Koubriti, No. 2:01-cr-80778, 2001 WL

1525270, at *1 (E.D. Mich. Oct. 16, 2001); see Johnston, supra note 556; Prosecutor, supra note 

557. The residents told them at the time that they used to work for Sky Chefs as dishwashers but

stopped after an automobile accident prevented them from working there. Koubriti, 199 F. Supp. 2d at 661; Koubriti, 2001 WL 1525270, at *3; see Shenon & Van Natta, supra note 556. 583. Criminal Judgment, Koubriti, No. 2:01-cr-80778 (E.D. Mich. Mar. 22, 2005); Plea

Agreement, id. (Mar. 22, 2005); see also Koubriti, 435 F. Supp. 2d at 668 n.1 (noting that Hannan

has been deported).

584. Koubriti, 593 F.3d at 464.

585. Koubriti, 509 F.3d 746 (holding that a retrial after a mistrial is not double jeopardy), cert. 

denied, 552 U.S. 1328 (2008); Koubriti, 435 F. Supp. 2d 666.

586. Order, Koubriti, No. 2:01-cr-80778 (E.D. Mich. Feb. 9, 2010); see David Ashenfelter, Deal May Lead to Probation for Koubriti, Detroit Free Press, Apr. 15, 2009, at 4A (reporting on

an agreement that would save Koubriti from a criminal record and provide him with a path to citizenship); Paul Egan, Ex-Terror Suspect in Talks to Clear Record, Detroit News, Apr. 15, 2009, at

4A (same).
National Security Case Management Studies (11/14/2011) 69

Koubriti filed a lawsuit against the Wayne County Jail for improper conditions of confinement, such as excessive security and serving him pork.587 The district court granted the county summary judgment on claims of insufficient exercise and serving pork, but denied summary judgment on excessive strip

searches,588and the case settled.589 Koubriti then sued his prosecutors for malicious prosecution,590 but the Sixth Circuit s court of appeals determined that the

prosecutors had prosecutorial immunity.591 The district court granted summary

judgment to an FBI agent defendant, bringing the case to a close.592

Elmardoudi was sentenced by the U.S. District Court for the District of Minnesota to four years and three months in prison in a separate prosecution for trafficking in fraudulent telephone calling cards,593

and he was sentenced by the U.S. District Court for the Northern District of Iowa to five years in prison for fraudulent use of Social Security numbers.594

 587. Complaint, Koubriti v. Rojo, No. 2:05-cv-74343 (E.D. Mich. Nov. 14, 2005). 

In their first motion for summary judgment, the defendants noted that [w]hile incarcerated in

the Wayne County Jail Plaintiff was deemed a level 4 security risk by the U.S. Marshals, and as

such, was placed in a super max security cell block. Defendants Summary Judgment Motion at

1, id. (July 25, 2006).

Between September 17, 2001 until August of 2003, Plaintiff Koubriti was incarcerated in the Wayne County Jail, and per level 4 super max security protocol, Plaintiff Koubriti was ensconced in his cell for 23 hours per day, and allowed 1 hour per day of exercise. . . . In Au- gust of 2003, Plaintiff was released, but was recharged again in November 2003. From No- vember 2003 until July of 2004, Plaintiff Koubriti was once again incarcerated in the Wayne County Jail and given a level 4 max security risk classification.

Id. at 2.

588. Opinion, id. (July 27, 2007), available at 2007 WL 2178331 (granting summary judgment 

on exercise claim); Opinion, id. (Jan. 3, 2007), available at 2007 WL 45923 (granting summary

judgment on the pork claim).

589. Stipulated Dismissals, id. (Aug. 9 and 24, 2007).

590. Complaint, Koubriti v. Convertino, No. 2:07-cv-13678 (E.D. Mich. Aug. 30, 2007);

Docket Sheet, id.; see Paul Egan, Ex-Terror Suspect Sues Convertino, Detroit News, Aug. 31, 2007, at 5B; Prosecutor, supra note 557. 591. Koubriti v. Convertino, 593 F.3d 459 (6th Cir.), cert. denied, ___ U.S. ___, 131 S. Ct. 82

(2010); see Ben Schmitt & Robin Erb, Man Can t Sue U.S. Prosecutor in Terror Case, Detroit

Free Press, Feb. 4, 2010, at A8.

592. Order, Koubriti, No. 2:07-cv-13678 (E.D. Mich. May 23, 2011), available at 2011 WL

1982239; see David Ashenfelter, Mike Brookbank, Tammy Stables Battaglia, Elisha Anderson &

Megha Satyanarayana, Dismissal Ends Terror Trial Lawsuit, Detroit Free Press, May 24, 2011, at

A4.

593. United States v. Elmardoudi, 501 F.3d 935, 937, 940 (8th Cir. 2007) (describing the crime 

as shoulder surfing, that is, surreptitiously memorizing other people s calling card and credit

card numbers at the Minneapolis St. Paul airport and then passing the numbers on to other people 

who used them to pay for telephone calls. ), cert. denied, 552 U.S. 1120 (2008); Amended Sentencing Judgment, United States v. Elmardoudi, No. 0:06-cr-262 (D. Minn. Oct. 17, 2006).

594. Judgment, United States v. Elmardoudi, No. 1:06-cr-112 (N.D. Iowa Mar. 14, 2008); Indictment, id. (Aug. 16, 2006); see Elmardoudi, 501 F.3d at 937. The court of appeals affirmed. Opinion, United States v. Elmardoudi, 313 F. App x 923 (8th Cir.), cert. denied, ___ U.S. ___, 130 S. Ct. 421 (2009).
70 National Security Case Management Studies (11/14/2011)

Challenge: Jury Security

To protect jurors security, Judge Rosen implemented soft sequestration. 595 Jurors did not come directly to the courthouse in the morning.596 Instead, they assembled at a secret location and were driven to the courthouse in a van.597 Someone found out about the secret location and called the jury room with a death

threat.598 On the following day, someone called the Detroit News with a death

threat concerning the judge.599 The Marshal changed the jurors meeting location, used a different-color van to transport them, and beefed up security for Judge Rosen s courtroom.600

Another measure Judge Rosen implemented to protect jurors security was to

empanel an anonymous jury.601 Jury selection was conducted behind closed

doors.602 Judge Rosen released a redacted transcript of the selection process, but

only after the trial was over.603 Judge Rosen noted that it was very important to

make sure that the jury clerk knew that the names and addresses of the jurors were 

confidential.604

Challenge: Sanctioning a Cabinet Officer

On December 16, 2003, Judge Rosen issued a public and formal judicial admonishment of the Attorney General. 605 As Judge Rosen recalled,

the Attorney General of the United States violated a gag order that was stipulated by the

parties indeed, drafted by the government not once, but twice, which occasioned contempt motions by the defense throughout the trial, which I put off until after the trial. I

think I was the first federal judge to be required to issue a public admonishment of the

Attorney General of the United States.606 On October 23, 2001, Judge Rosen issued a stipulated gag order forbidding

public comments about the case that would have a reasonable likelihood of inter-

 595. Interview with Hon. Gerald E. Rosen, Dec. 7, 2006.

596. Id.

597. Id.

598. Trying Cases, supra note 226, at 21; Interview with Hon. Gerald E. Rosen, Dec. 7, 2006.

599. Interview with Hon. Gerald E. Rosen, Dec. 7, 2006.

600. Interviews with Hon. Gerald E. Rosen, Dec. 7, 2006, and Jan. 3, 2007.

601. 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); Trying Cases, supra note 226, at 21; see David Eggen & Allan Lengel, In Detroit, First Post-9/11 

Terrorism Trial, Wash. Post, Mar. 19, 2003, at A3; David Runk, Judge Says Elmardoudi Terror Trial to Proceed, St. Paul Pioneer Press, Mar. 25, 2003, at B9.

602. Trying Cases, supra note 226, at 21; Interview with Hon. Gerald E. Rosen, Dec. 7, 2006;

see Eggen & Lengel, supra note 601. 603. Interview with Hon. Gerald E. Rosen, Dec. 7, 2006.

604. Id.

605. Koubriti, 305 F. Supp. 2d at 726; see id. at 763 65; see also Robert E. Pierre, Judge Rebukes Ashcroft for Gag Violation, Wash. Post, Dec. 17, 2003, at A27; Richard B. Schmitt, Ashcroft Is Rebuked by U.S. Judge, L.A. Times, Dec. 17, 2003, at 20.

606. Trying Cases, supra note 226, at 21.
National Security Case Management Studies (11/14/2011) 71

fering with a fair trial.607 Eight days later, Attorney General John Ashcroft incorrectly stated at a press conference that the defendants in the case were suspected

of having knowledge of the September 11th attacks. 608 In addition, during the

trial, the Attorney General commented favorably at a press conference on the credibility of the cooperating codefendant s testimony.609

On the day before the grand jury handed down the second superseding indictment adding terrorism charges for the first time, Fox News announced the forthcoming indictment in detail sufficient to suggest the indictment had been improperly leaked.610 On the following day, MSNBC News presented improperly

leaked evidence against the defendants.611 The Attorney General s responsibility

for these leaks remained unclear.612

The defendants moved for sanctions against the Attorney General on August

28, 2003.613 On the following day, Judge Rosen ordered the Attorney General to

show cause in writing why he should not be compelled to appear for a hearing to

address Defendants motion. 614 In response, the Attorney General stated that he

regretted making the statements and acknowledged that they were mistakes, but

said that they were entirely inadvertent.615

Because the sanction motion occurred after the trial was over, a civil contempt 

sanction could not remedy the wrongdoing; the only type of pertinent contempt

would be criminal contempt as a punitive sanction.616 Criminal contempt proceedings against a sitting Cabinet officer would require extraordinary procedures and

implicate serious constitutional issues.617 Because the record did not suggest willful violation of the court s order, Judge Rosen decided that confronting these difficulties would not be necessary.618 But because the Attorney General did violate

 607. Koubriti, 305 F. Supp. 2d at 728 29; see id. at 733 ( I didn t initiate the gag order, but I

intend to keep it in place until further order of the Court, and I intend to enforce it. ); see also

Prosecutor, supra note 557. 608. Koubriti, 305 F. Supp. 2d at 725, 729 30; see Shenon & Van Natta, supra note 556 (reporting on the Attorney General s news conference); Prosecutor, supra note 557. Two days after the news conference, the Justice Department acknowledged that it did not

know whether three Arab men now in custody in Michigan had advance knowledge of the terror

attacks of Sept. 11. Don Van Natta, Jr., Justice Dept. Alters Stand on 3 Detained, N.Y. Times, Nov. 3, 2001, at B5; see Prosecutor, supra note 557. But, more than five years after that, government counsel told an appellate panel at oral argument that Elmardoudi was accused of supporting

terrorists connected with the September 11, 2001, attacks. United States v. Elmardoudi, 504 F.3d

935, 938 n.3 (8th Cir. 2007).

609. Koubriti, 305 F. Supp. 2d at 725, 735 36.

610. Id. at 731; Trying Cases, supra note 226, at 22; see Prosecutor, supra note 557 (noting 

that Judge Rosen learned from the broadcast that he would preside over the case).

611. Koubriti, 305 F. Supp. 2d at 732.

612. Id. at 725 n.1.

613. E.D. Mich. Koubriti Docket Sheet, supra note 565. 614. Koubriti, 305 F. Supp. 2d at 725; see also id. at 737.

615. Id. at 737 38; see Schmitt, supra note 605. 616. Koubriti, 305 F. Supp. 2d at 741.

617. Id. at 726, 742, 752 57.

618. Id. at 726, 748 57.
72 National Security Case Management Studies (11/14/2011)

the court s order on two occasions, Judge Rosen decided to formally admonish

him.619

Challenge: Classified Evidence

In order to investigate claims of prosecutorial misconduct, the court had to review 

the prosecution s entire case file, which included classified documents, as well as

highly sensitive records maintained at CIA headquarters.620 Judge Rosen negotiated with the CIA s general counsel to establish a protocol for the review and

use of the CIA s evidence.621 Because records of cable traffic could not be

brought to Detroit, Judge Rosen traveled to McLean, Virginia, to review them.622

Review of classified evidence in Detroit required the court to (1) establish a

sensitive compartmented information facility (SCIF)623and (2) engage in the

time-consuming process of obtaining security clearances for both court staff and

defense counsel.624

A SCIF is a secure room in which documents are stored in independently

locked file drawers.625 The room was created by classified information security 

officers provided by the Justice Department s Litigation Security Group,626 and 

then the court programmed the codes for access.627 Only chambers staff with security clearances may enter this SCIF.628

If there is any chance that a case will involve classified information, Judge

Rosen advised the following:

The first thing that the judge should do is to have a conference with the lawyers and

attempt to determine whether classified information is going to be a part of the case. That s not as easy as it sounds, because sometimes it is unclear whether classified information will be a part of the case. The government may have classified information, but

they may not be certain if they are going to use it. So, at the very least, if it looks remotely as if classified information may be implicated in the case, the court should discuss this

with counsel and have a very open discussion.629

 619. Id. at 725 26, 757 65; see Schmitt, supra note 605; Prosecutor, supra note 557. 620. Trying Cases, supra note 226, at 22; Interviews with Hon. Gerald E. Rosen, Dec. 7, 2006, 

and Apr. 18, 2007.

621. Interviews with Hon. Gerald E. Rosen, Dec. 7, 2006, and Apr. 18, 2007.

622. Trying Cases, supra note 226, at 5 6; Interviews with Hon. Gerald E. Rosen, Dec. 7, 2006, and Apr. 18, 2007.

623. Interview with Hon. Gerald E. Rosen, Dec. 7, 2006; see Reagan, supra note 173, at 19

(describing SCIFs).

624. United States v. Koubriti, 336 F. Supp. 2d 676, 678 (E.D. Mich. 2004).

Judge Rosen employs career law clerks, and all of his originally cleared staff remain on staff. Interview with Hon. Gerald E. Rosen, Dec. 7, 2006.

625. Rosen, supra note 565, at 105; Interview with Hon. Gerald E. Rosen, Dec. 7, 2006; see 

also Trying Cases, supra note 226, at 4 5.

626. See Reagan, supra note 173, at 17 18.

627. Interview with Hon. Gerald E. Rosen, Dec. 7, 2006.

628. Id.

629. Trying Cases, supra note 226, at 3.
National Security Case Management Studies (11/14/2011) 73

Twentieth Hijacker

United States v. Moussaoui 

(Leonie M. Brinkema, E.D. Va.)630

On September 11, 2001, four hijacked commercial jumbo jets were crashed in

New York, Virginia, and Pennsylvania, killing nearly 3,000 people, including 19

suspected hijackers.631 Two planes crashed into the two towers of the World

Trade Center in New York City, and one plane crashed into the Pentagon; each of

these planes apparently had five hijackers aboard.632 The fourth plane crashed

near Shanksville, Pennsylvania, apparently after passengers thwarted the hijackers plan to strike a strategic target perhaps the Capitol.633 This plane apparently

had only four hijackers aboard.634 Just a few days later, it was reported that Zacarias Moussaoui may have been intended to be the twentieth hijacker.635

Moussaoui could not hijack a plane on September 11, because he was in custody following an arrest in Minnesota on August 16 for an immigration violation.636 Three days earlier, he had begun instruction at the Pan Am International

 630. Pre-conviction appeals were heard by Fourth Circuit Judges William W. Wilkins, Karen

J. Williams, and Roger L. Gregory; a post-conviction appeal was first heard by Judges Williams

and Gregory and Fourth Circuit Judge William B. Traxler, Jr., and then reheard by Judges Traxler

and Gregory and Fourth Circuit Judge Dennis W. Shedd.

631. The 9/11 Commission Report 1 14, 311 (2004); United States v. Moussaoui, 591 F.3d

263, 266 (4th Cir. 2010); United States v. Moussaoui, 382 F.3d 453, 457 (4th Cir. 2004); United 

States v. Moussaoui, 333 F.3d 509, 512 (4th Cir. 2003); see Michael Grunwald, Terrorists Hijack

4 Airliners, Destroy World Trade Center, Hit Pentagon, Wash. Post, Sept. 12, 2001, at A1; Serge

Schmemann, U.S. Attacked, N.Y. Times, Sept. 12, 2001, at A1; see also http://legacy.com/Sept11/ 

Home.aspx (providing victim profiles).

632. See Grunwald, supra note 631; David Johnston & Philip Shenon, Man Held Since August

Is Charged with a Role in Sept. 11 Terror Plot, N.Y. Times, Dec. 12, 2001, at A1; New Theory on

a 20th Hijacker Is Of ered, N.Y. Times, Nov. 16, 2001, at B10 [hereinafter New Theory]; Schmemann, supra note 631. 633. The 9/11 Commission Report 244 (2004); Moussaoui, 591 F.3d at 266; see Grunwald, 

supra note 631; Jere Longman, Families Say Tapes Verify Talk of Valor, N.Y. Times, Apr. 19, 2002, at A14; New Theory, supra note 632; Schmemann, supra note 631; see also Terry McDermott, The Mastermind, New Yorker, Sept. 13, 2010, at 38, 49 ( [Khalid Sheikh Mohammed] allowed Atta to overrule Bin Laden s choice of the White House as one of the targets Atta thought 

it was too difficult and substituted the Capitol. ); Soufan, supra note 64, at 282 (reporting that

Osama Bin Laden identified the Capitol as the fourth target).

634. See David Johnston & Philip Shenon, F.B.I. Curbed Scrutiny of Man Now a Suspect in 

the Attacks, N.Y. Times, Oct. 6, 2001, at A1; Johnston & Shenon, supra note 632; Longman, supra note 633; New Theory, supra note 632. 635. Suzanne Daley, Mysterious Life of a Suspect from France, N.Y. Times, Sept. 21, 2001, at

B1; David Peterson, Mother Says Extremists Brainwashed Her Son, Minneapolis St. Paul Star

Trib., Sept. 20, 2001, at 9A (reporting that the French newsmagazine L Express speculated online

on Sept. 19, 2001, that Moussaoui might be the twentieth hijacker).

636. The 9/11 Commission Report 247 (2004) (reporting that the planners of the attacks might

have canceled them if they had known about Moussaoui s arrest); Moussaoui, 591 F.3d at 266;

Moussaoui, 382 F.3d at 457; Moussaoui, 333 F.3d at 512; United States v. Moussaoui, 282 F. Supp. 2d 480, 483 (E.D. Va. 2003); see Katherine C. Donahue, Slave of Allah 3, 15 16 (2007);
74 National Security Case Management Studies (11/14/2011)

Flight Academy.637 It was initially reported that he aroused suspicion when he

expressed an interest in steering a jumbo jet but not in taking off or landing.638

But the Washington Post reported in November that the director of the FBI told

federal prosecutors at a closed-door meeting that initial reports of Moussaoui s

not wanting to learn how to take off or land were inaccurate, and Moussaoui no

longer was thought to be intended as the twentieth hijacker; he was thought to

have been intended for a later attack.639

Moussaoui was born on May 30, 1968, in the Atlantic coast town of St.-Jean- de-Luz, France, the youngest of four children.640 He moved to London in 1990, and then moved back to France in 1997.641 By the time he entered the United

States on a student visa, French authorities already suspected him of terrorist

ties.642 In February 2001, he moved to Norman, Oklahoma, for training at the

Airman Flight School, where his performance was judged poor.643

 Johnston & Shenon, supra note 632; Peterson, supra note 635; Pohlman, supra note 220, at 192;

Soufan, supra note 64, at 277.

637. The 9/11 Commission Report 246 47, 273 (2004); Moussaoui, 591 F.3d at 266, 274; see

Johnston & Shenon, supra note 634. One of the three instructors who alerted authorities to suspicion concerning Moussaoui received a $5 million reward in 2008. See Reward in Moussaoui Case, N.Y. Times, Jan. 25, 2008, at 

A18; Two Others Seek Reward in Moussaoui Case, N.Y. Times, Jan. 26, 2008, at A10.

638. James V. Grimaldi, FBI Had Warning on Man Now Held in Attacks, Wash. Post, Sept. 23, 2001, at A18; Johnston & Shenon, supra note 634; Susan Schmidt & Lois Romano, Did Student s Case Hold Clues to Terrorist Plot?, Wash. Post, Sept. 22, 2001, at A20.

639. Dan Eggen, Yemeni Fugitive Linked to Hijackers, Wash. Post, Nov. 15, 2001, at A20; see 

Bin al-Shibh Deposition Opinion at 3, United States v. Moussaoui, No. 1:01-cr-455 (E.D. Va. Mar. 10, 2003), available at 2003 WL 21263699 ( he suggests that he was part of another operation to occur outside the United States after September 11 involving different members of al Qaeda ); Philip Shenon, F.B.I. Chief Says Failed Sept. 11 Hijackers May Remain at Large, N.Y. Times, Nov. 17, 2001, at B5.

In 2004, the 9/11 Commission reported that 9/11 conspirator Khallad believes [Khalid Sheikh

Mohammed] wanted between four and six operators per plane. KSM states that al Qaeda had originally planned to use 25 or 26 hijackers but ended up with only the 19. The 9/11 Commission

Report 235 (2004).

640. See Daley, supra note 635; Donahue, supra note 636, at 42, 104; Schmidt & Romano, supra note 638. 641. See Daley, supra note 635. 642. See Donahue, supra note 636, at 16 17, 116 17; Grimaldi, supra note 638 (reporting that

French officials warned the FBI of their suspicions at least ten days before the September 11 attacks); Diana Jean Schemo & Robert Pear, Suspects in Hijackings Exploited Loopholes in Immigration Policy, N.Y. Times, Sept. 27, 2001, at A1.

In April 1998, Moussaoui was at the same terrorist training camp in Afghanistan as Ahmed

Ressam, who is sometimes referred to as the Millennium Bomber. See Donahue, supra note 636, at 121, 165; see also supra, Millennium Bomber (concerning the prosecution of Ressam). 643. The 9/11 Commission Report 224 25 (2004) (reporting that Mohamed Atta, the hijacking 

pilot of American Airlines flight 11, visited the flight school several months earlier); United States 

v. Moussaoui, 591 F.3d 263, 274 (4th Cir. 2010); see Daley, supra note 635; Donahue, supra note 

636, at 13 15, 125; Timothy Dwyer & Jerry Markon, Flight Instructor Recalls Unease with Moussaoui, Wash. Post, Mar. 10, 2006, at A2; Johnston & Shenon, supra note 634; Schmidt & Romano, supra note 638; Soufan, supra note 64, at 276 77.
National Security Case Management Studies (11/14/2011) 75

During this time, he apparently had contact with Ramzi Muhammad Abdullah

Bin al-Shibh,644a roommate of Mohamed Atta645 in Hamburg, Germany.646 Atta 

is believed to have been the leader of the September 11 attacks and the pilot of the 

first plane to hit the World Trade Center.647 Bin al-Shibh apparently wired Moussaoui $14,000,648 $8,600 of which Moussaoui used for flight school.649 Ramzi Bin

al-Shibh was also known as Ramzi Omar,650and he too came to be suspected as

the intended twentieth hijacker,651 but he was repeatedly denied a visa to enter the

United States.652 He was captured in Karachi, Pakistan, on the eve of the first anniversary of September 11, held in Morocco in secret by the CIA, and eventually 

transferred to Guantánamo Bay.653 He is to be tried there by military commission.654

 644. Bin al-Shibh was an affable layabout who rarely held a job for more than a few weeks

and found university study not worth his effort. McDermott, supra note 633, at 49.

645. Atta was a finicky, dour man whose chief attributes were obedience and a capacity for

detail. Id.

646. The 9/11 Commission Report 162 (2004) (Atta and Bin al-Shibh moved in with hijacker

Marwan al-Shehhi in April 1998); Moussaoui, 591 F.3d at 274; see James Risen, U.S. Says Suspect Tied to 9/11 and Qaeda Is Captured in Raid, N.Y. Times, Sept. 14, 2002, at A1; Soufan, supra note 64, at 271 73; John Tagliabue & Raymond Bonner, German Data Led U.S. to Search for 

More Suicide Hijacker Teams, N.Y. Times, Sept. 29, 2001, at A1; see also The 9/11 Commission

Report 161 (2004) (profiling Bin al-Shibh).

647. The 9/11 Commission Report 5 (2004) (Atta was the only terrorist on board trained to

fly a jet ); see Johnston & Shenon, supra note 634; Risen, supra note 646; John Tagliabue, Retracing a Trail to Sept. 11 Plot, N.Y. Times, Nov. 18, 2001, at 1.

648. The 9/11 Commission Report 246, 273 (2004); see Donahue, supra note 636, at 1, 28 29, 

76; Johnston & Shenon, supra note 632. 649. See Philip Shenon, The Terrible Missed Chance, Newsweek, Sept. 12, 2011, at 15.

650. See McDermott, supra note 633, at 49; Soufan, supra note 64, at 272.

651. See New Theory, supra note 632; Risen, supra note 646; Shenon, supra note 639; Tagliabue, supra note 647. Another person designated the twentieth hijacker Mohammed al-Qahtani is detained at

Guantánamo Bay. See Hafetz, supra note 502, at 38; Charlie Savage, William Glaberson & An- drew W. Lehren, Classified Files Of er New Insights Into Detainees, N.Y. Times, Apr. 25, 2011, at A1; Soufan, supra note 64, at 458 59; Wax, supra note 91, at 154.

652. The 9/11 Commission Report 161, 168, 225 (2004) (reporting that Bin al-Shibh could not

persuade immigration officials that he would return home); see McDermott, supra note 633, at 49

( the American immigration system viewed him as a likely economic migrant ); Michael Moss, A 

Traveler with Strong Views on the Right Kind of Islam and No Fear of Sharing Them, N.Y. Times, 

Dec. 12, 2001, at B6; Soufan, supra note 64, at 272 ( The United States at the time was suspicious

of Yemeni visa seekers, believing they d attempt to become illegal immigrants. ); id. at 275. 

653. See Donahue, supra note 636, at 29; Peter Finn, 9/11 Detainee s Interrogation in Morocco Was Recorded, Wash. Post, Aug. 18, 2010, at A4; Kamran Khan & Peter Finn, Pakistanis Detail Capture of Key 9/11 Suspect, Wash. Post, Sept. 15, 2002, at A1; Mark Mazzetti, 9/11 Suspect

Was Detained and Taped in Morocco, N.Y. Times, Aug. 18, 2010, at A4; Walter Pincus, Binalshibh Said to Provide Useful Information, Wash. Post., Oct. 4, 2002, at A17; Risen, supra note 

646; Soufan, supra note 64, at 428, 484 88.

654. See Finn, supra note 165; see also http://www.mc.mil (military commission records).
76 National Security Case Management Studies (11/14/2011)

Unlike the hijackers, who trained on aircraft simulators for a year or more, Moussaoui enrolled in flight school only months before the September 11 attacks.655

The government filed an indictment against Moussaoui on December 11, 2001, in the U.S. District Court for the Eastern District of Virginia.656 Four of the

six conspiracy counts exposed Moussaoui to the death penalty, and the court immediately appointed three attorneys to represent him.657 The court assigned the

case to Judge Leonie M. Brinkema.658

At his January 2, 2002, arraignment, Moussaoui refused to enter a plea: In

the name of Allah, I do not have anything to plead. I enter no plea. Thank you

very much. 659 Judge Brinkema, with the consent of Moussaoui s lawyer, entered

a plea of not guilty.660 Meeting a deadline set by the court, the government announced on March 28 that it would seek the death penalty.661

Moussaoui refused to honor the judge by standing when she entered or left the 

courtroom, so Judge Brinkema arranged proceedings so that she and he would

enter and leave the courtroom at the same time.662

At a hearing on April 22 concerning Moussaoui s conditions of confinement, the defendant raised his hand and, when recognized by Judge Brinkema, began a

 655. See Johnston & Shenon, supra note 634. 656. Indictment, United States v. Moussaoui, No. 1:01-cr-455 (E.D. Va. Dec. 11, 2001); United States v. Moussaoui, 591 F.3d 263, 266 (4th Cir. 2010); United States v. Moussaoui, 483 F.3d

220, 223 n.1 (4th Cir. 2007); see Donahue, supra note 636, at 1 2, 19; Dan Eggen & Brooke A. Masters, U.S. Indicts Suspect in Sept. 11 Attacks, Wash. Post, Dec. 12, 2001, at A1; Johnston &

Shenon, supra note 632; Pohlman, supra note 220, at 192.

Moussaoui was originally flown to New York, on September 14, 2001, for possible prosecution there. See Donahue, supra note 636, at 18 19 ( But the Department of Justice was going to

ask for the death penalty, and the New York court had deadlocked on the death penalty for two of

the East African embassy bombing suspects. A court near the Pentagon would more likely decide

for the death penalty. ). Moussaoui was transported to Alexandria, Virginia, on December 13. See 

id. at 19.

657. Complex Case Order at 1, Moussaoui, No. 1:01-cr-455 (E.D. Va. Dec. 11, 2001) (recognizing four capital counts), available at 2001 WL 1887910; see Donahue, supra note 636, at 1, 19; 

Johnston & Shenon, supra note 632; David Johnston & Benjamin Weiser, Government s Focus in

the First Sept. 11 Trial: Al Qaeda, N.Y. Times, Dec. 13, 2001, at B5.

658. Docket Sheet, Moussaoui, No. 1:01-cr-455 (E.D. Va. Dec. 11, 2001) [hereinafter E.D. Va. 

Docket Sheet]; see Philip Shenon & Neil A. Lewis, Unpredictable Judge for Terrorism Suspect, N.Y. Times, Dec. 26, 2001, at B6. 

Tim Reagan interviewed Judge Brinkema for this report in the judge s chambers on January 5, 2007, and by telephone on March 26, 2008.

659. See David Johnston, Not-Guilty Plea Is Set for Man in Terror Case, N.Y. Times, Jan. 3, 2002, at A1; see also Libby Copeland, A Glimpse at a Symbol of a Changed World, Wash. Post, Jan. 3, 2002, at C1; Donahue, supra note 636, at 8, 20.

660. E.D. Va. Docket Sheet, supra note 658; Moussaoui, 591 F.3d at 267; see Copeland, supra

note 659; Donahue, supra note 636, at 20; Johnston, supra note 659. 661. Complex Case Order, supra note 657, at 3 (setting a deadline of Mar. 29, 2002); Death 

Penalty Notice, Moussaoui, No. 1:01-cr-455 (E.D. Va. Mar. 28, 2002); Moussaoui, 483 F.3d at

223 24 n.1; see Donahue, supra note 636, at 23; Philip Shennon & Neil A. Lewis, U.S. to Seek

Death Penalty for Moussaoui in Terror Case, N.Y. Times, Mar. 29, 2002, at A20.

662. See Donahue, supra note 636, at 9, 64.
National Security Case Management Studies (11/14/2011) 77

50-minute diatribe on Islam and the U.S. government s conspiracy to kill him.663

He said that his lawyers did not understand Muslims, so he would like to

represent himself, possibly with the assistance of a Muslim lawyer.664 Judge Brinkema said that he could represent himself if he were adjudged competent to do so, 

but that she recommended against it and would continue the appointment of his

attorneys as backups.665

A court-appointed psychiatrist determined that Moussaoui was a fanatic, but

not mentally incompetent to stand trial or waive his right to counsel.666 On June

13, Judge Brinkema granted Moussaoui s motion to represent himself, keeping

appointed counsel as standbys.667

The government filed a superseding indictment on June 19,668and at the arraignment six days later Moussaoui tried to plead no contest.669 Judge Brinkema

admonished him that such a plea did not mean what he seemed to think it meant

and again entered a plea of not guilty on his behalf.670

On June 24, in Ring v. Arizona, the Supreme Court determined that aggravating factors meriting a death sentence must be proved to a jury beyond a reasonable doubt.671 So the government filed a second superseding indictment on July 16

to accommodate the requirements of Ring.672 At the July 18 arraignment on the

new indictment, Moussaoui announced, I, Moussaoui Zacarias, in the interests to

preserve my life, enter with full conscience a plea of guilty, because I have know-

 663. See Pohlman, supra note 220, at 193 94 (presenting excerpts from speech); Philip Shenon, Terror Suspect Says He Wants U.S. Destroyed, N.Y. Times, Apr. 23, 2002, at A1.

664. Moussaoui, 591 F.3d at 269 70; United States v. Moussaoui, 333 F.3d 509, 512 13 (4th

Cir. 2003); see Motion to Proceed Pro Se, Moussaoui, No. 1:01-cr-455 (E.D. Va. Apr. 25, 2002) 

(handwritten motion dated Apr. 22, 2002); Pohlman, supra note 220, at 192; Donahue, supra note 

636, at 23 24, 36, 39 40, 166; Shenon, supra note 663. 665. Mental Health Evaluation Order, Moussaoui, No. 1:01-cr-455 (E.D. Va. Apr. 22, 2002), available at 2002 WL 1311722; see Moussaoui, 591 F.3d at 270; Donahue, supra note 636, at 24, 36, 54; Shenon, supra note 663. 666. See Philip Shenon, Court Psychiatrist Concludes Defendant Is Not Mentally Ill, N.Y. Times, June 8, 2002, at A11; see also Donahue, supra note 636, at 54.

667. Pro Se Order, Moussaoui, No. 1:01-cr-455 (E.D. Va. June 14, 2002), available at 2002 

WL 1311738; Moussaoui, 591 F.3d at 274 75, 292 93; Moussaoui, 333 F.3d at 513; see Donahue, supra note 636, at 24, 36, 54; Pohlman, supra note 220, at 192; Philip Shenon, Judge Lets

Man Accused in Sept. 11 Plot Defend Himself, N.Y. Times, June 14, 2002, at A27.

668. Superseding Indictment, Moussaoui, No. 1:01-cr-455 (E.D. Va. June 19, 2002).

669. Order Denying No-Contest Plea, id. (July 9, 2002), available at 2002 WL 1587025; see 

Neil A. Lewis, Defendant in Sept. 11 Plot Accuses Judge of Trickery, N.Y. Times, June 26, 2002, 

at A18.

670. Order Denying No-Contest Plea, supra note 669; E.D. Va. Docket Sheet, supra note 658; 

see Lewis, supra note 669. 671. Ring v. Arizona, 536 U.S. 584 (2002).

672. Second Superseding Indictment, Moussaoui, No. 1:01-cr-455 (E.D. Va. July 16, 2002);

United States v. Moussaoui, 382 F.3d 453, 457 (4th Cir. 2004); see Donahue, supra note 636, at

26; Philip Shenon, Judge Clears Defendant to Meet French Diplomats, N.Y. Times, July 17, 2002, 

at A16.
78 National Security Case Management Studies (11/14/2011)

ledge and participated in Al Qaeda. 673 Judge Brinkema decided to give him a

week to reconsider his guilty plea.674 On July 25, Moussaoui insisted that his support for Al-Qaeda did not include involvement in the September 11 hijackings, and, on instructions from Judge Brinkema that this was inconsistent with a guilty

plea, he changed his plea to not guilty.675

On January 31, 2003, Judge Brinkema secretly ordered the government to allow Moussaoui s standby attorneys to interview Bin al-Shibh, who was undergoing intensive interrogations overseas.676 Judge Brinkema postponed the trial 

indefinitely to permit the government to appeal.677 The court of appeals stayed the 

appeal briefly and remanded the case so that the government could suggest alternatives to the evidence sought.678 Judge Brinkema ruled that a government summary of what Bin al-Shibh would say if interviewed would be insufficient because of its unreliability, incompleteness and inaccuracy. 679 After oral argument

on June 3 before U.S. Circuit Judges William W. Wilkins, Karen J. Williams, and

Roger L. Gregory,680 the court of appeals determined on June 26 that it did not

 673. United States v. Moussaoui, 591 F.3d 263, 270 (4th Cir. 2010); see Philip Shenon, 9/11 

Defendant in Guilty Plea, N.Y. Times, July 19, 2002, at A1; see also Donahue, supra note 636, at

26; Pohlman, supra note 220, at 194. 674. Moussaoui, 591 F.3d at 270; see Donahue, supra note 636, at 26; Shenon, supra note 673. 675. E.D. Va. Docket Sheet, supra note 658; Moussaoui, 591 F.3d at 270 71; see Donahue, 

supra note 636, at 27; Pohlman, supra note 220, at 194; Philip Shenon, Terror Suspect Changes

Mind on Guilty Plea, N.Y. Times, July 26, 2001, at A1.

676. Bin al-Shibh Deposition Opinion, supra note 639, at 16 17 ( The defense has made a

significant showing that [redacted] would be able to provide material, favorable testimony on the

defendant s behalf both as to guilt and potential punishment. ); Bin al-Shibh Deposition Order, Moussaoui, No. 1:01-cr-455 (E.D. Va. Jan. 31, 2003); Moussaoui, 382 F.3d at 458; United States

v. Moussaoui, 333 F.3d 509, 513 (4th Cir. 2003); E.D. Va. Docket Sheet, supra note 658; see Donahue, supra note 636, at 28 29; Pohlman, supra note 220, at 194, 196; Susan Schmidt & Dana

Priest, Judge Orders Access to Detainee for Moussaoui s Lawyers, Wash. Post, Feb. 1, 2003, at

A9; Philip Shenon, Moussaoui Case May Have to Shift from U.S. Court to Tribunal, Administration Says, N.Y. Times, Feb. 7, 2003 (reporting that the government feared that if Mr. Bin al- Shibh is questioned by Mr. Moussaoui s lawyers, he might divulge information about Al Qaeda

that the government wants to keep secret. ). 677. Order Vacating Trial Date, Moussaoui, No. 1:01-cr-455 (E.D. Va. Feb. 12, 2003), available at 2003 WL 402249; see Donahue, supra note 636, at 29; Jerry Markon, Moussaoui Trial

Postponed for Third Time, Wash. Post, Feb. 13, 2002, at A8; Philip Shenon, Judge Grants the 

Government a Delay of Moussaoui s Trial, N.Y. Times, Feb. 13, 2003, at A21.

678. United States v. Moussaoui, No. 03-4162, 2003 WL 1889018 (4th Cir. Apr. 14, 2003);

Moussaoui, 382 F.3d at 458; see Donahue, supra note 636, at 29; Jerry Markon, Court Seeks Deal

on Terror Witness Access, Wash. Post, Apr. 16, 2003, at A12; Pohlman, supra note 220, at 194;

Philip Shenon, Prosecution Says Qaeda Member Was to Pilot 5th Sept. 11 Jet, N.Y. Times, Apr. 16, 2003, at B10.

679. Bin al-Shibh Substitution Opinion at 6, Moussaoui, No. 1:01-cr-455 (E.D. Va. May 15, 2003), available at 2003 WL 21277161; Moussaoui, 382 F.3d at 458 59; see Donahue, supra note 

636, at 29; Jerry Markon, Judge Rejects Bid to Block Access to Sept. 11 Planner, Wash. Post, May 

16, 2003, at A3; Philip Shenon, Ruling Leaves Legal Standof in 9/11 Case, N.Y. Times, May 16, 2003, at A17.

680. Moussaoui, 333 F.3d at 513; Moussaoui, 382 F.3d at 459; see Philip Shenon, Justice 

Dept. Warns of Risk to Prosecution and Security, N.Y. Times, June 4, 2003, at A21.
National Security Case Management Studies (11/14/2011) 79

have appellate jurisdiction over Judge Brinkema s order, and the merits of the

government s objection were not so clear as to warrant mandamus.681

On August 29, Judge Brinkema ordered the government to provide Moussaoui 

deposition access to Khalid Sheikh Mohammed (KSM) regarded as the mastermind of the September 11 attacks and Mustafa Ahmed al-Hawsawi regarded 

as the paymaster for the September 11 attacks as well.682 KSM and al-Hawsawi 

had been captured in Pakistan on February 27.683 The government refused to

comply with the deposition orders, so Judge Brinkema ruled that the government

could not argue that Moussaoui had anything to do with the September 11 attacks, 

and Judge Brinkema ruled that the government could not seek a sentence of

death.684

The same panel that dismissed the appeal of Judge Brinkema s deposition order determined that this sanction order was appealable.685 Although the court of

appeals agreed that the government s proposed substitutions for detainee depositions were inadequate, in an opinion by Judge Wilkins, the court ordered Judge

Brinkema to attempt to craft adequate substitutions.686 Judge Gregory dissented in 

 681. Moussaoui, 333 F.3d at 512, 514, 517; Moussaoui, 382 F.3d at 459; see Donahue, supra

note 636, at 29; Neil A. Lewis, Bush Of icials Lose Round in Prosecuting Terror Suspect, N.Y. Times, June 27, 2003, at A13; Jerry Markon, Appeals Court Rebuf s U.S. in Moussaoui Case, Wash. Post, June 27, 2003, at A1; Pohlman, supra note 220, at 198.

Over the dissent of five judges, the court decided not to rehear the appeal en banc. United 

States v. Moussaoui, 336 F.3d 279 (4th Cir. 2003); see Jerry Markon, Moussaoui Prosecutors Defy Judge, Wash. Post, July 15, 2003, at A1; Philip Shenon, U.S. Will Defy Court s Order in Terror Case, N.Y. Times, July 15, 2003, at A1.

682. Mohammed and al-Hawsawi Deposition Opinion, Moussaoui, No. 1:01-cr-455 (E.D. Va. Aug. 29, 2003), available at 2003 WL 22258213; Moussaoui, 382 F.3d at 459; see Donahue, supra note 636, at 29; Eric Lichtblau, New Ruling Favors Suspect in Terror Case, N.Y. Times, Aug. 31, 2003, at 123; Jerry Markon, Moussaoui Granted Access to Witnesses, Wash. Post, Aug. 30, 2003, at A12; Susan Schmidt, 2nd Key Al Qaeda Suspect Identified, Wash. Post, Mar. 5, 2003, at

A1.

Ramzi Yousef, a principal in the first World Trade Center bombing, is KSM s nephew. The

9/11 Commission Report 73, 145 (2004). According to KSM, he started to think about attacking 

the United States after Yousef returned to Pakistan following the 1993 World Trade Center bombing. Id. at 153; see Soufan, supra note 64, at 54 ( KSM had been yearning to get more actively

involved in jihad ever since his nephew had earned notoriety for the World Trade Center bombing ). 683. See Donahue, supra note 636, at 29; Schmidt, supra note 682. 684. United States v. Moussaoui, 282 F. Supp. 2d 480, 481 82, 487 (E.D. Va. 2003); Moussaoui, 382 F.3d at 459 60; see Donahue, supra note 636, at 29 30; Jerry Markon, Ruling Shakes

Up Moussaoui Terror Case, Wash. Post, Oct. 3, 2003, at A1; Pohlman, supra note 220, at 191, 198; Philip Shenon, Judge Rules Out a Death Penalty for 9/11 Suspect, N.Y. Times, Oct. 3, 2003, at A1.

685. Moussaoui, 382 F.3d at 462 63.

686. Id. at 456 57, 479 82; see Donahue, supra note 636, at 122; Hafetz, supra note 502, at

227; Jerry Markon, Court Clears Way for Moussaoui Trial, Wash. Post, Sept. 14, 2004, at A5;

Pohlman, supra note 220, at 191, 224 32.

On March 21, 2005, the Supreme Court denied Moussaoui s petition for a writ of certiorari. Moussaoui v. United States, 544 U.S. 931 (2005); see Donahue, supra note 636, at 31; Linda

Greenhouse, After 5 Months Absence, Rehnquist Is Back in Court, N.Y. Times, Mar. 22, 2005;
80 National Security Case Management Studies (11/14/2011)

part on the ground that substitutions for witness depositions would not be sufficient to justify a death sentence.687

As part of the government s interrogation of the three detainees, it had prepared classified detainee reports for military and intelligence use.688 The government prepared classified summaries of these detainee reports for the use of

cleared counsel in Moussaoui s prosecution.689 The court of appeals did not share

Judge Brinkema s skepticism about the reliability of the detainee reports: the interrogators have a profound interest in obtaining accurate information from the

witnesses and in reporting that information accurately to those who can use it to

prevent acts of terrorism and to capture other al Qaeda operatives. 690 Noting that

Judge Brinkema judged the summaries accurate reflections of the reports, the

court of appeals ruled that the summaries provide an adequate basis for the creation of written statements that may be submitted to the jury in lieu of the witnesses deposition testimony. 691

Meanwhile, on November 14, 2003, Judge Brinkema decided that because of

his frequent inappropriate filings Moussaoui could no longer proceed pro se.692

Seventeen months later, on April 22, 2005, one month after the Supreme Court

denied his petition for a writ of certiorari, Moussaoui pleaded guilty to a conspiracy to kill Americans, but denied involvement in the September 11 attacks.693

Judge Brinkema bifurcated Moussaoui s penalty trial into a first phase on

whether he was eligible for the death penalty and a possible second phase on

whether he merited the death penalty.694 Jury selection began on February 6,

 Jerry Markon, High Court Declines to Hear Terror Case, Wash. Post, Mar. 22, 2005, at A3;

Pohlman, supra note 220, at 191.

687. Moussaoui, 382 F.3d at 483 89 (Gregory, concurring in part and dissenting in part); see 

Markon, supra note 686; Pohlman, supra note 220, at 226 27.

688. Moussaoui, 382 F.3d at 458 n.5.

689. Id.

690. Id. at 478.

691. Id. at 479.

692. Order Vacating Pro Se Status at 3, United States v. Moussaoui, No. 1:01-cr-455 (E.D. Va. 

Nov. 14, 2003); United States v. Moussaoui, 591 F.3d 263, 271 (4th Cir. 2010); Moussaoui, 382

F.3d at 460 n.6; see Donahue, supra note 636, at 30 31, 36, 40; Jerry Markon, Lawyers Restored

for Moussaoui, Wash. Post, Nov. 15, 2003, at A2; Pohlman, supra note 220, at 194; Philip Shenon, Judge Bars 9/11 Suspect from Being Own Lawyer, N.Y. Times, Nov. 15, 2003, at A8.

693. Plea Statement, Moussaoui, No. 1:01-cr-455 (E.D. Va. Apr. 22, 2005); Moussaoui, 591

F.3d at 272; United States v. Moussaoui, 483 F.3d 220, 223 24 n.1 (4th Cir. 2007); see Donahue, 

supra note 636, at 31; Neil A. Lewis, Moussaoui Tells Court He s Guilty of a Terror Plot, N.Y. Times, Apr. 23, 2005, at A1; Jerry Markon, Moussaoui Pleads Guilty in Terror Plot, Wash. Post, Apr. 23, 2005, at A1; Pohlman, supra note 220, at 192, 246.

Mr. Moussaoui s lawyers urged him not to plead guilty, but they could not tell him why. Adam Liptak, The Right to Counsel, in the Right Situations, N.Y. Times, Feb. 26, 2008, at A11.

694. Moussaoui, 591 F.3d at 275; Leonie M. Brinkema, United States v. Moussaoui: Preliminary Venire Instructions (Feb. 6, 2006); Leonie M. Brinkema, United States v. Moussaoui: Jury

Instructions for Penalty Phase Part Two (Feb. 6, 2006); see Donahue, supra note 636, at 33 34, 

65.
National Security Case Management Studies (11/14/2011) 81

2006.695 The court sent summonses to more than 1,000 residents within the district s Alexandria division.696 Judge Brinkema used an anonymous jury, and to

facilitate juror selection she used a jury questionnaire, which more than 500 potential jurors filled out.697

Opening statements began on March 6.698 The government s core argument

for Moussaoui s execution was that the tragedies of September 11, 2001, would

not have occurred had Moussaoui not lied to authorities following his arrest in

August 2001.699 Proceedings were not publicly televised, but they were broadcast

to viewing sites in Manhattan, Central Islip, Boston, Philadelphia, Newark, and

Alexandria for family members of September 11 victims.700

As the sentencing trial entered its second week, Judge Brinkema learned that a 

lawyer for the Transportation Security Administration was improperly coaching

witnesses who were aviation officials.701 Judge Brinkema ruled that the coached

witnesses could not testify.702

 695. E.D. Va. Docket Sheet, supra note 658; see Donahue, supra note 636, at 34, 59; Jerry

Markon & Timothy Dwyer, Moussaoui Repeatedly Ejected at Trial, Wash. Post, Feb. 7, 2006, at

B1.

696. Interview with Hon. Leonie M. Brinkema, Mar. 26, 2008.

697. Trial Conduct Order 1, Moussaoui, No. 1:01-cr-455 (E.D. Va. Feb. 2, 2006); Leonie M. Brinkema, United States v. Moussaoui: Jury Questionnaire (Feb. 6, 2006); Interview with Hon. Leonie M. Brinkema, Mar. 26, 2008; see Donahue, supra note 636, at 59 ( Beginning on Wednesday, February 15, the potential jurors were to arrive in smaller groups for individual questioning, or voir dire, in order to create a pool of 85 potential jurors. ); id. at 61 62; Jerry Markon, Terrorism Jury Faces Slew of Questions, Wash. Post, Nov. 29, 2006, at B1.

698. E.D. Va. Docket Sheet, supra note 658; see Donahue, supra note 636, at 59, 65; Neil A. Lewis, Prosecutor Urges Death for Concealing Sept. 11 Plot, N.Y. Times, Mar. 7, 2006, at A14.

699. See Lewis, supra note 698; Jerry Markon & Timothy Dwyer, Moussaoui s Lies Led to

9/11, Jury Told, Wash. Post, Mar. 7, 2006, at A1.

700. See Trial Conduct Order 2, Moussaoui, No. 1:01-cr-455 (E.D. Va. Mar. 1, 2006); Donahue, supra note 636, at 65 66; Timothy Dwyer, 9/11 Families to Watch Moussaoui Face Fate, Wash. Post, Feb. 6, 2006, at A1; Neil A. Lewis, At Satellite Courthouses, 9/11 Relatives Will

Watch Moussaoui s Sentencing, N.Y. Times, Mar. 5, 2006, at 118; see also Trial Conduct Order 3, Moussaoui, No. 1:01-cr-455 (E.D. Va. Mar. 3, 2006).

During the trial, Judge Brinkema remarked that fewer people were watching from the off-site 

courtrooms than anticipated. Donahue, supra note 636, at 174.

701. See Donahue, supra note 636, at 69 70; Stephen Labaton & Matthew L. Wald, Lawyer 

Thrust Into Spotlight After Misstep in Terror Case, N.Y. Times, Mar. 15, 2006, at A1; Neil A. Lewis, Judge Calls Halt to Penalty Phase of Terror Trial, N.Y. Times, Mar. 14, 2006, at A1; Jerry 

Markon & Timothy Dwyer, Judge Halts Terror Trial, Wash. Post, Mar. 14, 2006, at A1.

702. Second Aviation Witness Order, Moussaoui, No. 1:01-cr-455 (E.D. Va. Mar. 17, 2006);

First Aviation Witness Order, Moussaoui, No. 1:01-cr-455 (E.D. Va. Mar. 14, 2006); see Donahue, supra note 636, at 70; Neil A. Lewis, Judge Gives Prosecutors New Chance in Terror Case, N.Y. Times, Mar. 18, 2006, at A10; Neil A. Lewis, Judge Penalizes Moussaoui Prosecutors by

Barring Major Witnesses, N.Y. Times, Mar. 15, 2006,at A24; Jerry Markon, Moussaoui Prosecutors Get a Break, Wash. Post, Mar. 18, 2006, at A1; Jerry Markon & Timothy Dwyer, Federal 

Witnesses Banned in 9/11 Trial, Wash. Post, Mar. 15, 2006, at A1.
82 National Security Case Management Studies (11/14/2011)

The trial continued and jurors began to deliberate on Wednesday, March

29.703 After a weekend break,704on Monday, April 3, the jurors unanimously

agreed that Moussaoui lied to federal agents knowing that people would die as a

result.705 On Monday, April 24, the jury began to deliberate on Moussaoui s penalty,706

returning a verdict of life in prison on Wednesday, May 3.707 After interviews with two anonymous jurors, The Washington Post reported that Moussaoui s life was spared by a single juror s vote.708

Surprised that the jury spared his life, and more confident as a result in the

possibility for a fair trial in an American court, Moussaoui moved on May 8 to

withdraw his guilty plea.709 Judge Brinkema denied his motion.710 The court of

 703. E.D. Va. Docket Sheet, supra note 658; see Neil A. Lewis, Moussaoui Sentencing Case

Goes to the Jury, N.Y. Times, Mar. 30, 2006, at A18.

704. See Jerry Markon, Moussaoui Jurors Leave for Weekend, Wash. Post, Apr. 1, 2006, at

A7.

705. United States v. Moussaoui, 591 F.3d 263, 277 (4th Cir. 2010); Phase 1 Jury Verdict, Moussaoui, No. 1:01-cr-455 (E.D. Va. Apr. 3, 2006); see Donahue, supra note 636, at 85; Neil A. Lewis, Jurors Permit Death Penalty for Moussaoui, N.Y. Times, Apr. 4, 2006, at A1; Jerry Markon & Timothy Dwyer, Moussaoui Found Eligible for Death, Wash. Post, Apr. 4, 2006, at A1.

706. E.D. Va. Docket Sheet, supra note 658; see Donahue, supra note 636, at 99; Neil A. Lewis, Jury in Sentencing Trial Begins Deliberating Moussaoui s Fate, N.Y. Times, Apr. 25, 2006, at

A18.

707. Phase 2 Jury Verdict, Moussaoui, No. 1:01-cr-455 (E.D. Va. May 3, 2006); Moussaoui, 591 F.3d at 277, 302; United States v. Moussaoui, 483 F.3d 220, 223 24 n.1 (4th Cir. 2007); see

Donahue, supra note 636, at 2, 100; Neil A. Lewis, Moussaoui Given Life Term by Jury Over Link 

to 9/11, N.Y. Times, May 4, 2006, at A1; Jerry Markon & Timothy Dwyer, Jurors Reject Death

Penalty for Moussaoui, Wash. Post, May 4, 2006, at A1.

On May 12, 2006, [Moussaoui] was flown by the US Marshals Service on a small jet operat- ed by the Justice Prisoner and Alien Transportation System, more commonly known as Con Air, to the Administrative Maximum security facility, or Supermax prison in Florence, Colorado. He now spends 23 hours a day alone in a cell, with another hour alone in exercise

space.

Donahue, supra note 636, at 3.

708. Timothy Twyer, One Juror Between Terrorist and Death, Wash. Post, May 12, 2006, at

A1; see Donahue, supra note 636, at 2 3, 102 03.

709. Motion to Withdraw Plea, Moussaoui, No. 1:01-cr-455 (E.D. Va. May 8, 2006); Moussaoui, 591 F.3d at 278; see Donahue, supra note 636, at 102, 167; Neil A. Lewis, Moussaoui s

Move to Recant Guilty Plea Is Denied, N.Y. Times, May 9, 2006, at A18; Jerry Markon, Moussaoui Fails in Bid to Withdraw 9/11 Guilty Plea, Wash. Post, May 9, 2006, at A16.

According to Moussaoui s affidavit, 16. I was extremely surprised when the jury did not return a verdict of death because I

knew that it was the intention of the American justice system to put me to death.

17. I had thought that I would be sentenced to death based on the emotions and anger to- ward me for the deaths on September 11 but after reviewing the jury verdict and reading how 

the jurors set aside their emotions and disgust for me and focused on the law and the evidence 

that was presented during the trial, I came to understand that the jury process was more com- plex than I assumed.

18. Because I now see that it is possible that I can receive a fair trial even with Americans as jurors and that I can have the opportunity to prove that I did not have any knowledge of and was not a member of the plot to hijack planes and crash them into buildings on Septem- ber 11, 2001, I wish to withdraw my guilty plea and ask the Court for a new trial to prove my 

innocence of the September 11 plot.
National Security Case Management Studies (11/14/2011) 83

appeals affirmed: the finality of the guilty plea, entered knowingly, intelligently, and with sufficient awareness of the relevant circumstances and likely consequences, stands. 711

Challenge: Attorney Appointment

Judge Brinkema initially appointed the Federal Public Defender and a private attorney to represent him.712 The relationship between Moussaoui and his appointed attorneys was strained at best, and Moussaoui almost immediately began

demanding to proceed pro se, but with the assistance of Muslim counsel. 713

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.714

Moussaoui s relations with private appointed counsel were more problematic

than his relations with the Federal Defender s office, so Judge Brinkema appointed another private attorney.715 Although Moussaoui initially refused to

communicate with any of his appointed counsel, he later testified that he began

communicating with [the second private attorney] because [he] was polite to

[Moussaoui]. 716

Challenge: Court Security

Security was enhanced at Moussaoui s arraignment.717 Moussaoui arrived before

6:00 a.m., while it was still dark.718 Deputy marshals surrounded the courthouse,

 Moussaoui Affidavit at 3, Motion to Withdraw Plea, supra; see Donahue, supra note 636, at 167.

710. Order Denying Plea Withdrawal, Moussaoui, No. 1:01-cr-455 (E.D. Va. May 8, 2006);

Moussaoui, 591 F.3d at 278; see Donahue, supra note 636, at 102, 167; Lewis, supra note 709; 

Markon, supra note 709; Pohlman, supra note 220, at 247.

711. Moussaoui, 591 F.3d at 307; see Docket Sheet, United States v. Moussaoui, No. 06-4494 

(4th Cir. May 15, 2006) [hereinafter 4th Cir. May 15, 2006, Docket Sheet].

The appeal was first heard on January 26, 2009. 4th Cir. May 15, 2006, Docket Sheet, supra; 

see Jerry Markon, Moussaoui s Attorneys Call Guilty Plea Invalid, Wash. Post, Jan. 27, 2009, at

A8. Judge Williams was on the panel that heard the appeal, but she retired for health reasons before the panel issued an opinion, so the appeal was reheard on September 25, 2009. 4th Cir. May

15, 2006, Docket Sheet, supra; see New Arguments in 9/11 Case, N.Y. Times, July 15, 2009, at

A11; Josh White & Jerry Markon, Diagnosis of Early Alzheimer s Forces Chief Judge to Retire, Wash. Post, July 10, 2009, at B3.

Tim Reagan attended the September 25, 2009, rehearing, interviewed Judge Gregory for this

report in the judge s chambers that same day, and interviewed Judge Shedd by telephone on September 3, 2009.

712. Moussaoui, 591 F.3d at 267.

713. Id.

714. Id. at 269.

715. Id.

716. Id. at 271 n.6.

717. See Copeland, supra note 659; Johnston, supra note 659. 718. See Copeland, supra note 659; see also Brooke A. Masters, Alexandria s Logistical Juggling Act, Wash. Post, Mar. 14, 2002 ( High-risk prisoners are being transported between the jail
84 National Security Case Management Studies (11/14/2011)

and extra metal detectors were stationed at the courtroom.719 Although the outside 

air was frigid, members of the news media and the public there were several

dozen of the former and almost none of the latter were not allowed into the

building until shortly before the hearing.720

At subsequent appearances also, extra deputy marshals guarded the courthouse.721 It was reported that the courthouse had never seen such a level of security.722

On Friday, April 22, 2005, [at the hearing concerning Moussaoui s conditions of

confinement where Moussaoui asked to proceed pro se,] security at the Alexandria Federal District Court was extremely tight. Two dogs and their handlers patrolled the street

outside the courthouse, sniffing people s briefcases and purses for explosive devices. People entering the courthouse passed through a nuclear materials detector positioned

just outside the doors. Up on the seventh floor, Courtroom 700 was closed off until 1:30

p.m. . . . At precisely 1:30 p.m. the guards let people take the elevators up from the

second floor. The lawyers, press, family members of 9/11 victims, and the curious began

to file in, again passing through another security checkpoint. IDs were checked, briefcases were x-rayed, people walked through metal detectors, men pulled their pant legs up to

show that they had nothing hidden in their socks. At exactly 3:30 p.m. Judge Birnkema

and Zacarias Moussaoui both entered the courtroom. Proceedings began.723 Challenge: Jury Security

Judge Brinkema used an anonymous jury.724 Jurors assembled in a secret location

and were driven to the courthouse.725 The court set up a special room for the jurors to eat lunch away from the public.726 They were never permitted to be in the

building unsupervised.727

Judge Brinkema observed that it is important to work cooperatively with the

Marshal while maintaining ultimate responsibility.728

Challenge: Classified Evidence

Classified materials require extraordinary procedures, but Judge Brinkema tries to

keep procedures as normal as possible.729 She requires all of her law clerks and

other staff members to qualify for top-secret security clearances.730

 and the courthouse at night or in the early morning, and the streets are shut down to minimize the

risks. ). 719. See Johnston, supra note 659. 720. See Copeland, supra note 659. 721. See Masters, supra note 718. 722. See Libby Copeland & Richard Leiby, The Moussaoui Circus Extends Its Run, Wash. Post, July 26, 2002 ( This is the most security we ve ever had to use here at the courthouse since

it opened in 1996, said John Clark, acting U.S. marshal for the Eastern District of Virginia. ). 723. Donahue, supra note 636, at 32.

724. Trial Conduct Order 1, supra note 697; see Markon, supra note 697. 725. Interview with Hon. Leonie M. Brinkema, Jan. 5, 2007.

726. Id.

727. Id.

728. Id.

729. Id.
National Security Case Management Studies (11/14/2011) 85

Because Moussaoui s standby attorneys would need access to classified evidence to prepare his defense, Judge Brinkema issued a protective order, which

provided that defense access to classified information would require appropriate

security clearances and the signing of a memorandum of understanding requiring

that classified secrets be kept secret forever.731

Moussaoui himself was not supposed to have access to classified information.732 But, in June and July of 2002, the government inadvertently included classified materials among documents produced to Moussaoui.733 On August 22, the

government wrote to Judge Brinkema stating that two documents produced to

Moussaoui had mistakenly not been classified and asking that a walled-off FBI

team search Moussaoui s cell to retrieve the documents.734 (To accommodate the 

pro se defendant s access to documents in this case, Moussaoui was eventually

given three cells.735)

Judge Brinkema denied the FBI search.

[G]iven the massive amounts of material produced in this case, there is a significant

danger than any agents sent to Mr. Moussaoui s cell would have to rummage through all

of his materials. That would risk serious intrusions into his pro se work product, which a

walled off FBI team would not solve.736 But Judge Brinkema did permit the Marshal Service, in consultation with the classified information security officer, to search Moussaoui s cells for the two docu-

 730. Id.

731. United States v. Moussaoui, 591 F.3d 263, 267 (4th Cir. 2010); Protective Order and 

Memorandum of Understanding, United States v. Moussaoui, No. 1:01-cr-455 (E.D. Va. Jan. 22, 2002); see Donahue, supra note 636, at 23; Pohlman, supra note 220, at 194.

732. Order, Moussaoui, No. 1:01-cr-455 (E.D. Va. Aug. 23, 2002), available at 2002 WL

1987964. As the Government strenuously argues, the defendant s repeated prayers for the destruction

of the United States and the American people, admission to being a member of al Qaeda, and

pledged allegiance to Osama Bin Laden are strong evidence that the national security could

be threatened if the defendant had access to classified information.

Id. at 2; see Liptak, supra note 693; Philip Shenon, U.S. Gave Secrets to Terror Suspect, N.Y. Times, Sept. 27, 2002, at A1.

Standby counsel, but not Moussaoui, also were granted access to sensitive security information, which is secret but not classified information related to transportation security. See 49 

C.F.R. § 1520.5(a); Tom Jackman, Moussaoui s Access to Documents Limited, Wash. Post, June

13, 2002, at A17.

733. Letter (Aug. 22, 2002) [hereinafter Aug. 22, 2002, Letter], attached to Classified Document Retrieval Unsealing Order, Moussaoui, No. 1:01-cr-455 (E.D. Va. Sept. 26, 2002), available 

at 2002 WL 32001771; Interview with Hon. Leonie M. Brinkema, Jan. 5, 2007; see Shenon, supra

note 732. These documents [redacted] were inadvertently produced as unclassified documents, in electronic form, to defense counsel and Mr. Moussaoui on June 12, 2002 [redacted] and June 7, 2002 [redacted]. On July 29, 2002, in accordance with the Court s order on hard-copy dis- covery, a paper copy of these documents was delivered to Mr. Moussaoui.

Aug. 22, 2002, Letter, supra, at 1.

734. Aug. 22, 2002, Letter, supra note 733; see Shenon, supra note 732. 735. Interview with Hon. Leonie M. Brinkema, Jan. 5, 2007.

736. Aug. 22, 2002, Letter, supra note 733.
86 National Security Case Management Studies (11/14/2011)

ments plus an additional five that the government identified in the interim as improperly produced.737 Of the seven searched for, five were found.738 By the following week, the government presented to Judge Brinkema a list of 43 improperly 

produced documents.739 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.740 Eventually, the documents were

retrieved and properly classified.741

In part to accommodate the disruption to Moussaoui s trial preparation caused

by the searches for improperly produced documents, Judge Brinkema pushed

back the trial date six months.742

Challenge: Classified Arguments

Eastern District of Virginia

Moussaoui s appointed standby attorneys had security clearances; to ensure that

they did not inadvertently put classified information into the public record, Judge

Brinkema established a procedure in which they submitted filings to the classified 

information security officer, who was given 48 hours to identify any classified

information that had to be redacted from the public record.743 These filings could

not be shared with Moussaoui, who did not have a security clearance, until they

had been reviewed by the security officer.744 Unredacted filings containing classified information were filed with the security officer rather than the clerk.745 The 

government was responsible for classification reviews of its filings.746

Fourth Circuit

The court of appeals clerk s office anticipated that it was likely to eventually receive an appeal in Moussaoui s case, and classified information would be part of

 737. Interview with Dep t of Justice Litig. Sec. Group Staff, Feb. 3, 2010; see Letter (Aug. 29, 2002) [hereinafter Aug. 29, 2002, Letter], attached to Classified Document Retrieval Unsealing

Order, supra note 733. 738. Interview with Hon. Leonie M. Brinkema, Jan. 5, 2007; see Aug. 29, 2002, Letter, supra

note 737; Shenon, supra note 732. 739. See Letter (Sept. 5, 2002), attached to Classified Document Retrieval Unsealing Order, supra note 733; Shenon, supra note 732. 740. See Dan Eggen, FBI Failed to Classify Reports Before Moussaoui Had Them, Wash. Post, 

Sept. 28, 2002, at A8.

741. Classified Document Retrieval Unsealing Order, supra note 733, at 1.

742. Order Rescheduling Trial, United States v. Moussaoui, No. 1:01-cr-455 (E.D. Va. Sept. 30, 2002), available at 2002 WL 32001785; see Philip Shenon, Judge Agrees to New Delay in Trial in Conspiracy Case, N.Y. Times, Oct. 1, 2002, at A20.

743. Classified Filing Order, Moussaoui, No. 1:01-cr-455 (E.D. Va. Oct. 3, 2002); see Moussaoui Motions to Be Cleared, Wash. Post, Oct. 4, 2002, at A15 [hereinafter Moussaoui Motions].

744. Classified Filing Order, supra note 743, at 2; see Moussaoui Motions, supra note 743. 745. Classified Filing Order, supra note 743, at 2 3.

746. Id. at 2; see Moussaoui Motions, supra note 743. One 71-page government brief had 50 blank (redacted) pages, 15 partially redacted pages, three full pages of text, and three head and end pages. Government Response Brief, Moussaoui, No. 1:01-cr-455 (E.D. Va. Jan. 13, 2003); see Pohlman, supra note 220, at 194.
National Security Case Management Studies (11/14/2011) 87

the court record.747 So the clerk s office worked with the classified information 

security officers to (1) create a sensitive compartmented information facility 

(SCIF) an especially secure storage facility suitable for storing sensitive compartmented information and other classified information and (2) begin the

process of obtaining security clearances for several staff members.748

The court s judges meet in regular session in Richmond six times a year. There are safes in the court s SCIF for the Moussaoui case, with separate drawers

allocated to each judge.749 Cleared court staff members can bring classified documents from the SCIF to judges Richmond chambers for review while the judges

are in Richmond.750 Judge Gregory s home chambers are in Richmond, so cleared

court staff members can bring him classified documents from the Richmond SCIF 

even when the court is not in session. Judge Gregory frequently visits the SCIF

himself to retrieve documents.751 He observed that although it is convenient to

have the documents stored near his chambers, he still must keep them within view 

at all times while they are out of the SCIF.752

Judge Wilkins had chambers in Greenville, South Carolina, and the courthouse there has a SCIF.753 Judge Williams had chambers in Orangeburg, South

Carolina, which is approximately 50 miles south of Columbia. Either classified 

information security officers brought classified documents to her chambers in

Orangeburg for her review while they were there, or she traveled to Columbia, where the FBI has a SCIF.754 Judge Shedd s chambers are in Columbia, so he can

review files at the FBI SCIF there or at the court in Richmond during a session.755

In the appeal of Judge Brinkema s order that Moussaoui be permitted to depose Bin al-Shibh, the briefs were filed with the classified information security 

officer under seal.756 Some information about their contents, however, was reported in the Washington Post.757 In the appeal of Judge Brinkema s sanction for

the government s refusal to produce detainees for depositions, complete briefs

 747. Interview with 4th Cir. Clerk s Office Staff, Feb. 26, 2008. 748. Id.; Interview with Dep t of Justice Litig. Sec. Group Staff, Feb. 3, 2010; see Reagan, supra note 173, at 19 (describing SCIFs).

749. Interview with 4th Cir. Clerk s Office Staff, Feb. 26, 2008; Interview with Dep t of Justice Litig. Sec. Group Staff, Feb. 3, 2010.

750. Interview with 4th Cir. Clerk s Office Staff, Feb. 26, 2008. 751. Interview with Hon. Roger L. Gregory, Sept. 25, 2009.

752. Id.

753. Interview with 4th Cir. Clerk s Office Staff, Feb. 26, 2008. Judge Wilkins retired on October 5, 2008. Federal Judicial Center Biographical Directory of Federal Judges, http://www.fjc. 

gov/public/home.nsf/hisj. 754. Interview with 4th Cir. Clerk s Office Staff, Feb. 26, 2008. 755. Interview with Hon. Dennis W. Shedd, Sept. 3, 2009.

756. Docket Sheet, United States v. Moussaoui, No. 03-4162 (4th Cir. Feb. 12, 2003) [hereinafter 4th Cir. Feb. 12, 2003, Docket Sheet]; see Jerry Markon, U.S. Filed Terror Briefs in Secrecy, Wash. Post, Mar. 15, 2003, at A6 ( legal specialists said they could recall virtually no other

examples of the government s filing an entire set of legal briefs under seal ). 757. Jerry Markon, U.S. Tries to Block Access to Witness for Terror Trial, Wash. Post, Apr. 2, 2003, at A7.
88 National Security Case Management Studies (11/14/2011)

were filed with the classified information security officer under seal and redacted

briefs were filed in the public record.758

While Moussaoui was proceeding pro se, he filed several documents with the

court of appeals.759 Typically, the documents were construed as attempted appeals, which were reviewed and dismissed.760 Moussaoui would give a document

for the court of appeals to the jail where he was detained, and the jail would pass

it on to a classified information security officer who notified the court.761 The

court docketed it as filed with the classified information security officer, who had

it reviewed for classified information and then sent a redacted copy to the court

for public filing.762 Sometimes the government s response would be accompanied

by instructions to cleared court staff members to do some of the redacting themselves.763

For a petition to rehear en banc the ruling on Judge Brinkema s discovery

sanction, full briefs were filed in the court s Richmond SCIF, and redacted copies

were sent to each judge.764 Some judges opted to review the full briefs in Richmond, and some judges opted to rely on the redacted briefs.765 The court denied

the petition.766

The appeal of Moussaoui s guilty plea also included classified briefing.767

Judge Gregory observed that the most difficult issue presented to an appellate

judge by the presence of classified information in a case is the difficulty of obtaining law clerk assistance.768 Judge Gregory does not have a career law clerk, and

security clearances 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.769

In August 2009, the court worked with the classified information security officer to establish a larger SCIF in Richmond, suitable for working and meeting in

addition to storage.770

 758. Docket Sheet, United States v. Moussaoui, No. 03-4792 (4th Cir. Oct. 7, 2003) [hereinafter 4th Cir. Oct. 7, 2003, Docket Sheet].

759. Interview with 4th Cir. Clerk s Office Staff, Feb. 26, 2008. 760. Id.

761. Id.

762. Id.

763. Id.

764. Id.

765. Id.

766. 4th Cir. Oct. 7, 2003, Docket Sheet, supra note 758 (noting denial of rehearing on Oct. 13, 2004).

767. 4th Cir. May 15, 2006, Docket Sheet, supra note 711; Interview with Hon. Roger L. Gregory, Sept. 25, 2009.

768. Interview with Hon. Roger L. Gregory, Sept. 25, 2009.

769. Id.

770. Id.; Interview with 4th Cir. Clerk s Office Staff, Feb. 26, 2008, and Sept. 1, 2009; Interview with Dep t of Justice Litig. Sec. Group Staff, Feb. 3, 2010.
National Security Case Management Studies (11/14/2011) 89

Challenge: Closed Proceedings

Closed proceedings in district courts are not common, but they do occur, especially in cases involving classified information. Closed proceedings in appellate

courts are more rare.

All four oral arguments before the court of appeals included a public session

and a closed session at which classified information could be discussed.771 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.772 At these public sessions, no interruption was necessary.773

In the appeal of Judge Brinkema s order that Moussaoui be permitted to depose Bin al-Shibh, a motion panel of the court of appeals initially granted the

government s motion to seal the oral argument.774 But on a motion by news media 

to hold the oral argument in open court, the panel that would ultimately hear the

appeal decided to bifurcate the argument: A public oral argument was held followed by a closed oral argument concerning classified information.775 The closed

proceeding was transcribed by Judge Brinkema s court reporter, who had a security clearance.776 The court ordered that a redacted transcript of the closed argument 

be made available to the public within five business days of the court reporter s

submission of the transcript to the government, which was required within 24 

hours of the argument.777 A redacted transcript of the closed arguments on Tuesday, June 3, 2003, was released to the public on Thursday, June 12.778

Challenge: Classified Opinion

Many opinions issued by the district court and the court of appeals in this case 

were redacted. Judge Gregory observed that in the appeal of Judge Brinkema s

discovery sanction the majority s opinion and Judge Gregory s separate opinion

 771. 4th Cir. Moussaoui Oct. 7, 2003, Docket Sheet, supra note 758; Interview with Hon. Roger L. Gregory, Sept. 25, 2009; Interview with 4th Cir. Clerk s Office Staff, Feb. 26, 2008;

Interview with Dep t of Justice Litig. Sec. Group Staff, Sept. 28, 2009; see Pohlman, supra note 

220, at 196, 217; id. at 197 98 (presenting redacted transcript from June 3, 2002, closed session).

772. Interview with Dep t of Justice Litig. Sec. Group Staff, Sept. 28, 2009. 773. Interview with Hon. Roger L. Gregory, Sept. 25, 2009.

774. 4th Cir. Feb. 12, 2003, Docket Sheet, supra note 756 (noting Mar. 24, 2003, grant of a

motion to seal the argument); Interview with 4th Cir. Clerk s Office Staff, Feb. 26, 2008; see Jerry 

Markon, Moussaoui Hearing Closed to Public, Wash. Post, Mar. 25, 2003, at A2.

775. United States v. Moussaoui, 65 F. App x 881 (4th Cir. 2002) (order by Circuit Judges

William W. Wilkins, H. Emory Widener, Jr., and Paul V. Niemeyer); Interview with 4th Cir. Clerk s Office Staff, Feb. 26, 2008; see Philip Shenon, In Shift, Appeals Court Opens Hearing on

a 9/11 Suspect, N.Y. Times, May 14, 2003, at A15.

776. Interview with 4th Cir. Clerk s Office Staff, Feb. 26, 2008. 777. Argument Closure Order, supra note 775, at 17.

778. See Jerry Markon, Moussaoui Prosecutor Fights Ruling, Wash. Post, June 13, 2003, at

A9.
90 National Security Case Management Studies (11/14/2011)

came back from the redaction process looking like Swiss cheese.779 In the opinion 

issued by the court, redactions appear as white space equal in size to the amount

of text redacted; in West s published version, the expression [Redacted] replaces redacted text, regardless of quantity. Challenge: Terrorist Communications

Once Moussaoui declared in court that he wished to proceed pro se, he began to

file with the court handwritten documents that the court regarded as motions.780

The court initially filed these documents under seal.781 On a Friday, the day after

the court granted Moussaoui s request to proceed pro se, Judge Brinkema ordered

Moussaoui s filings served on the government, which was required to advise the

court by Monday morning whether it objected to the unsealing of the filings.782

The government announced that it did not object to the unsealing, so Judge Brinkema ordered the filings unsealed and ordered future pro se filings sealed only

until 4:00 p.m. on the workday following the filing to provide the government

with an opportunity to object.783

Two months later, the government expressed concern that Moussaoui s filings

might include coded messages to confederates.784 Judge Brinkema determined

that Moussaoui s filings included improper material. 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. Because he has been warned numerous times that such writing would have to stop, the

defendant may no longer hide behind his pro se status to avoid being held to appropriate

pleading practice. Further, we find that the record supports the United States concern

that the defendant, who is charged with conspiracy to commit acts of terrorism transcending national boundaries among other offenses, is attempting to use the court as a vehicle

through which to communicate with the outside world in violation of the Special Administrative Measures governing the conditions of his confinement.785

Judge Brinkema ordered that any future pleadings filed by the defendant, pro 

se, containing threats, racial slurs, calls to action, or other irrelevant and inappropriate language will be filed and maintained under seal. 786 She sealed several, but 

not all, recent filings.787 She declined Moussaoui s suggestion that the court engage in the burdensome task of redacting inappropriate language from the filings

 779. Interview with Hon. Roger L. Gregory, Sept. 25, 2009; see United States v. Moussaoui, 382 F.3d 453 (4th Cir. 2004).

780. E.D. Va. Docket Sheet, supra note 658. 781. Pro Se Order, supra note 667, at 1.

782. Id. at 2. 783. Pro Se Filings Unsealing Order, United States v. Moussaoui, No. 1:01-cr-455 (E.D. Va. June 17, 2002), available at 2002 WL 1311764. 784. Letter, Moussaoui, No. 1:01-cr-455 (E.D. Va. Aug. 22, 2002) (portions redacted); see Philip Kennicott, A Window on the Mind of Moussaoui, Wash. Post, July 25, 2002, at C1 (reporting

on the contents of Moussaoui s filings). 785. Pro Se Filings Sealing Order at 3, Moussaoui, No. 1:01-cr-455 (E.D. Va. Aug. 29, 2002), available at 2002 WL 1990900. 786. Id. at 4.

787. Id. at 3 4.
National Security Case Management Studies (11/14/2011) 91

instead of sealing them: If he desires his pleadings to be publicly filed, the defendant must limit his writings to appropriate requests for relevant judicial relief. 788

On motion from news media, and after observing that the defendant has filed

fewer pleadings and has significantly toned down his inappropriate rhetoric, Judge Brinkema modified her order so that all pro se filings would be sealed for

10 days to give the government an opportunity to advise the Court in writing

whether the pleading should remain under seal or be unsealed with or without redactions. 789

The Court will also conduct its own review of the defendant s pro se pleadings, and

will redact any insulting, threatening or inflammatory language which would not be tolerated from an attorney practicing in this court. Should the defendant s pleadings again

become replete with inappropriate rhetoric, we will return to categorical sealing.790

Moussaoui was granted access to a videotape of an Al-Jazeera interview with

the captured Bin al-Shibh, but the tape produced apparently was blank.791 Judge 

Brinkema ordered the inexcusable error corrected immediately, but also ordered

Moussaoui s motion to correct the error to remain under total seal, because it was

replete with irrelevant and inflammatory rhetoric, including messages to third

parties and a prayer for the destruction of the United States. 792

 788. Id. at 4 n.3.

789. Pro Se Filings Sealing Order, Moussaoui, No. 1:01-cr-455 (E.D. Va. Sept. 27, 2002) [hereinafter Sept. 27, 2002, Pro Se Filings Sealing Order], available at 2002 WL 32001783; see News 

Media Win Ruling in Terror Trial, N.Y. Times, Sept. 28, 2002, at A11.

790. Sept. 27, 2002, Pro Se Filings Sealing Order, supra note 789, at 4 n.1.

791. Videotape Production Order at 1, Moussaoui, No. 1:01-cr-455 (E.D. Va. Nov. 5, 2002), available at 2002 WL 32001775; see Philip Shenon, Court Papers Show Moussaoui Seeks Access

to Captured Al Qaeda Members, N.Y. Times, Nov. 1, 2002, at A20.

792. Videotape Production Order, supra note 791.
92 National Security Case Management Studies (11/14/2011)

American Taliban

United States v. Lindh 

(T.S. Ellis III, E.D. Va.)

On November 25, 2001, at the Qala-i-Janghi prison near Mazar-e Sharif, Afghanistan, CIA officer Johnny Mike Spann interviewed a captured Taliban fighter

who was an American citizen: John Phillip Walker Lindh.793 Spann became the

first American casualty of the war in Afghanistan when he was killed in a prisoner 

uprising later that day.794 Lindh795 was shot in the upper thigh during the uprising, 

and he denied involvement in Spann s death.796 Lindh and several dozen other

surviving Taliban troops were recaptured on December 1, 2001, when the Northern Alliance flooded them out of a basement.797

Lindh was charged in a criminal complaint filed on January 15, 2002, with

conspiracy to kill American citizens and with providing support to terrorists, including Al-Qaeda.798 He arrived in the Eastern District of Virginia for trial eight

days later.799 An indictment filed on February 5 added related charges as well as a 

 793. United States v. Lindh, 227 F. Supp. 2d 565, 569 (E.D. Va. 2002); United States v. Lindh, 212 F. Supp. 2d 541, 546 (E.D. Va. 2002); see Dan Eggen & Brooke A. Masters, U.S. Won t Seek

Death for Walker, Wash. Post, Jan. 16, 2002, at A1; David Johnston, Walker Will Face Terrorism

Counts in a Civilian Court, N.Y. Times, Jan. 16, 2002, at A1; Fredrick Kunkle, Lindh Never Betrayed Homeland, Parents Say, Wash. Post, July 16, 2002, at A10; Brooke A. Masters & Patricia

Davis, Walker s Long Trip Ends at Alexandria Jail, Wash. Post, Jan. 24, 2002, at A13.

794. Lindh, 227 F. Supp. 2d at 569; Lindh, 212 F. Supp. 2d at 546; see Eggen & Masters, supra note 793; Tom Jackman, In Deal, Lindh Pleads Guilty to Aiding Taliban, Wash. Post, July 16, 

2002, at A1; Johnston, supra note 793; Kunkle, supra note 793; Vernon Loeb, U.S. Soldiers Recount Smart Bomb s Blunder, Wash. Post, Feb. 2, 2002, at A15; Romero & Temple-Raston, supra 

note 275, at 91 92; Rene Sanchez, John Walker s Restless Quest Is Strange Odyssey, Wash. Post, Jan. 14, 2002, at A1.

795. Early references to Lindh stated that he preferred to be identified by his mother s last

name, Walker, but Lindh s attorney stated in January 2002 that Lindh prefers to be identified by

his father s last name. See Walker No More, N.Y. Times, Jan. 25, 2002, at A11.

796. Lindh, 227 F. Supp. 2d at 569; see Eggen & Masters, supra note 793; Johnston, supra

note 793; see also Brooke A. Masters, Lindh Defense Is Denied Access to Detainees, Wash. Post, May 29, 2002, at A7; Romero & Temple-Raston, supra note 275, at 92 93.

797. Lindh, 227 F. Supp. 2d at 569; Lindh, 212 F. Supp. 2d at 547; see Johnston, supra note 

793; Vernon Loeb, Pro-Taliban Fighter Grew Up in Maryland, Wash. Post, Dec. 3, 2001, at A13;

Loeb, supra note 794; Romero & Temple-Raston, supra note 275, at 94. 

Also captured was Yasser Esam Hamdi. See John Mintz & Brooke A. Masters, U.S.-Born Detainee May End Up in Va., Wash. Post, Apr. 5, 2002, at A3; Romero & Temple-Raston, supra 

note 275, at 95, 142, 191; see also Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (holding that U.S. citizens cannot be held indefinitely as enemy combatants without a meaningful opportunity to contest their detention); Romero & Temple-Raston, supra note 275, at 144, 191 (reporting on Hamdi).

798. Docket Sheet, United States v. Lindh, No. 1:02-cr-37 (E.D. Va. Feb. 5, 2002); see Eggen 

& Masters, supra note 793; Johnston, supra note 793; Masters & Davis, supra note 793; Romero

& Temple-Raston, supra note 275, at 140 & fig. 7.

799. See Masters & Davis, supra note 793.
National Security Case Management Studies (11/14/2011) 93

firearms charge.800 The court assigned the case to Judge T.S. Ellis III.801 Lindh 

pleaded not guilty on February 13.802 Judge Ellis denied Lindh s motion to transfer the case to a district that did not include so many persons directly affected by

the September 11, 2001, terrorist attacks.803

Lindh was born in February 1981 in the District of Columbia as the second of 

three children born to Marilyn Walker and Frank Lindh, who subsequently moved 

the family to California and ultimately separated.804 John Walker Lindh was

raised a Catholic, but he decided to convert to Islam at 16, taking the name Suleyman.805 At 18, he moved to Yemen to study Arabic and then moved to Bannu, Pakistan, to attend a madrassah.806

Adopting the name Abdul Hamid, he reportedly volunteered to fight with the

Taliban; because he did not know Pashto or Urdu (the local languages), he was

assigned to fight with troops financed by Osama Bin Laden.807 He arrived on the

Taliban s front line on September 6, 2001.808

A photo taken during Lindh s captivity showed him naked and blindfolded, strapped to a stretcher.809 Another photo showed American soldiers posing with a

handcuffed and blindfolded Lindh, an obscenity written across the blindfold.810

Other photos apparently were destroyed.811

 800. United States v. Lindh, 198 F. Supp. 2d 739, 741 (E.D. Va. 2002); Docket Sheet, supra

note 798; see Brooke A. Masters & Dan Eggen, Lindh Indicted on Conspiracy, Gun Charges, Wash. Post, Feb. 6, 2002, at A1; Romero & Temple-Raston, supra note 275, at 139.

801. Docket Sheet, supra note 798; see Brooke A. Masters, Lindh Pleads Not Guilty to Terror Aid, Wash. Post, Feb. 14, 2002, at B1; Romero & Temple-Raston, supra note 275, at 142.

Tim Reagan interviewed Judge Ellis for this report in the judge s chambers on September 5, 2007.

802. Docket Sheet, supra note 798; see Masters, supra note 801. 803. United States v. Lindh, 212 F. Supp. 2d 541, 547 52 (E.D. Va. 2002); see Tom Jackman, Judge Turns Down Lindh s Challenges, Wash. Post, June 18, 2002, at B5; Katharine Q. Seelye, Judge in Lindh Case Refuses Defense Request to Move Trial, N.Y. Times, June 18, 2002, at A18.

804. See Kunkle, supra note 793; Loeb, supra note 797; Evelyn Nieves, A U.S. Convert s Path

from Suburbia to a Gory Jail for Taliban, N.Y. Times, Dec. 4, 2001, at B1; Romero & Temple- Raston, supra note 275, at 13, 15; Sanchez, supra note 794. 805. See Eggen & Masters, supra note 793 (reporting that Lindh took the name Suleyman al- Faris); Kunkle, supra note 793; Loeb, supra note 797; Nieves, supra note 804 (reporting that

Lindh took the name Suleyman al-Lindh); Romero & Temple-Raston, supra note 275, at 16 (reporting that Suleyman is equivalent to Solomon ); Sanchez, supra note 794. 806. See Eggen & Masters, supra note 793; Loeb, supra note 797; Romero & Temple-Raston, 

supra note 275, at 17 19 (reporting that the Lindhs determined that Yemen was the best place in

the world to learn classical Arabic); Sanchez, supra note 794. 807. See Eggen & Masters, supra note 793; Loeb, supra note 797; Nieves, supra note 804; 

Romero & Temple-Raston, supra note 275, at 22 23, 138 (reporting that Lindh undertook military 

training to fight the Northern Alliance, not Al-Qaeda training, which was to fight civilians); Sanchez, supra note 794. 808. See Romero & Temple-Raston, supra note 275, at 24.

809. See Brooke A. Masters, U.S. Soldiers Posed with Bound Lindh, Wash. Post, Apr. 13, 2002, at A9; Romero & Temple-Raston, supra note 275, at 111 & fig. 5.

810. See Masters, supra note 809; Romero & Temple-Raston, supra note 275, at 114 (reporting that the obscenity was shithead ). 811. See Masters, supra note 809; Romero & Temple-Raston, supra note 275, at 114.
94 National Security Case Management Studies (11/14/2011)

Lindh s parents hired prominent San Francisco attorney James Brosnahan to

defend him.812 To protect Brosnahan s law firm s employees from harm, Brosnahan kept the firm s name off of the case.813

Spann s family attended Lindh s plea hearing, telling reporters that they

blamed Lindh for Spann s death.814 But the government acknowledged at a hearing two months later that there was no evidence that Lindh killed or shot at any

American citizen, including Spann.815

On July 15, 2002, Lindh pleaded guilty to the felony of fighting for the Taliban.816 All other charges were dropped, and Lindh pleaded guilty to a new charge

of carrying grenades while committing a felony.817 On October 4, Judge Ellis imposed the statutory maximum of consecutive ten-year terms on each charge, a

sentence to which the parties had agreed.818 Lindh tearfully admitted making a

mistake by joining the Taliban.819 Judge Ellis gave Lindh credit for time served, beginning December 1, 2001.820

Challenge: Protected National Security Information

Early in the prosecution, the government determined that it had to disclose to the

defendant 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 Guantanamo Bay, Cuba. 821

The reports were regarded as unclassified information vital to national security. 822 The government submitted to the court ex parte and in camera both an unredacted set of reports and a set with proposed redactions, omitting agent and case 

identifiers and information concerning other detainees not relevant to the defense.823

 812. See Eggen & Masters, supra note 793; Romero & Temple-Raston, supra note 275, at 94, 111 14, 136 37.

813. See Nation in Brief, Wash. Post, Feb. 2, 2002, at A26.

814. See Masters, supra note 801; Romero & Temple-Raston, supra note 275, at 140 41 (reporting that the government brought Spann s family to the courthouse). 815. See Brooke A. Masters, Prosecutors Concede Limits of Their Case Against Lindh, Wash. Post, Apr. 2, 2002, at A11.

816. United States v. Lindh, 227 F. Supp. 2d 565, 566 (E.D. Va. 2002); Docket Sheet, supra

note 798; see Jackman, supra note 794; Kunkle, supra note 793; Neil A. Lewis, Admitting He

Fought in Taliban, American Agrees to 20-Year Term, N.Y. Times, July 16, 2002; Romero &

Temple-Raston, supra note 275, at 188.

817. Lindh, 227 F. Supp. 2d at 566; see Jackman, supra note 794; Lewis, supra note 816; Romero & Temple-Raston, supra note 275, at 188 89.

818. Lindh, 227 F. Supp. 2d at 571 72; Docket Sheet, supra note 798; see Apologetic Lindh

Gets 20 Years, Wash. Post, Oct. 5, 2002, at A1 [hereinafter Apologetic Lindh]; Jackman, supra

note 794; Romero & Temple-Raston, supra note 275, at 12, 189 90.

819. See Apologetic Lindh, supra note 818; Romero & Temple-Raston, supra note 275, at 189.

820. Lindh, 227 F. Supp. 2d at 572.

821. United States v. Lindh, 198 F. Supp. 2d 739, 741 (E.D. Va. 2002).

822. Id. at 742.

823. Id. at n.2.
National Security Case Management Studies (11/14/2011) 95

Judge Ellis granted the government s motion for a protective order.824

[G]iven the nature of al Qaeda and its activities, and the ongoing federal law enforcement investigation into al Qaeda, the identities of the detainees, as well as the questions asked and the techniques employed by law enforcement agents in the interviews are

highly sensitive and confidential. Additionally, the intelligence information gathered in

the course of the detainee interviews may be of critical importance to national security, as 

detainees may reveal information leading to the identification and apprehension of other

terrorist suspects and the prevention of additional terrorist acts. Thus, a protective order 

prohibiting the public dissemination of the detainee interview reports will, in this case, serve to prevent members of international terrorist organizations, including al Qaeda, from learning, from publicly available sources, the status of, the methods used in, and the 

information obtained from the ongoing investigation of the detainees.825

Judge Ellis rejected the government s proposal that defense investigators and

expert witnesses be pre-screened before information contained in the redacted reports could be disclosed to them.826 Judge Ellis determined that having investigators and witnesses sign a memorandum of understanding would suffice.827

By signing such a memorandum of understanding, a defense investigator or expert would

declare under penalty of perjury under the laws of the United States that she or he had (i)

read and understood the protective order pertaining to these unclassified documents and

materials and (ii) agreed to be bound by the terms of the protective order, which would

remain binding during, and after the conclusion of these proceedings.828 On motion, and without objection from the defendant, Judge Ellis subsequently

modified the protective order to require of persons seeing the reports a brief, basic background investigation, performed by law enforcement personnel independent of the prosecution team and reporting directly to the Court through the Court

Security Officer. 829

Judge Ellis determined that showing the reports to a detainee witness, however, would additionally require notice to the government and court approval to

assure that the Court is fully apprised of the risks attendant to disclosure of unclassified protected information to a specific detainee. 830

 Later in the case, Judge Ellis agreed with the government that a set of additional detainee reports did not need to be disclosed to the defense. United States v. Lindh, No. 1:02-cr-37, 2002 WL 

1974284 (E.D. Va. June 17, 2002).

824. Lindh, 198 F. Supp. 2d at 744.

825. Id. at 742.

826. Id.

827. Id. at 742 43; see id. at 743 (noting that defendant will be at liberty to disclose information from the redacted interview reports to investigators and expert witnesses who are not pre- screened by, or known to, the government ). 828. Id. at 742 43.

829. United States v. Lindh, No. 1:02-cr-37, 2002 WL 1974184 (E.D. Va. May 6, 2002).

830. Lindh, 198 F. Supp. 2d at 743.
96 National Security Case Management Studies (11/14/2011)

Challenge: Classified Evidence

In order to determine what evidence the government had to produce to the defendant, Judge Ellis had to review a substantial amount of classified material.831 It 

was stored in the court s sensitive compartmented information facility (SCIF).832

Judge Ellis s career law clerk has a top-secret security clearance, so she can

assist the judge with reviews of classified information.833 The chambers has a rule

requiring classified documents to be within eyesight at all times.834 Even a law

clerk s brief trip outside chambers requires taking the classified documents securely along.835 But classified materials are never taken home.836

Challenge: Interviewing Guantánamo Bay Detainees

Defense counsel sought to interview Guantánamo Bay detainees.837 Judge Ellis

denied counsel face-to-face access to the detainees, but established a procedure

allowing counsel to submit questions to firewall attorneys, who passed them on

to the detainees.838

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.839

Defense counsel submitted questions for each detainee to the firewall attorneys.840 The firewall attorneys could object to any questions, and the court would

resolve any objections on sealed noticed filings.841 Approved questions were

submitted to interrogators who interwove the questions into the interrogations.842

Firewall attorneys prepared written summaries, and defense counsel could submit

follow-up questions.843 Soon thereafter, the firewall attorneys submitted to defense counsel video recordings of the interviews.844

Judge Ellis monitored the procedure to ensure that it protected Lindh s rights

to a defense.845

 831. Interview with Hon. T.S. Ellis III, Sept. 5, 2007.

832. Id.; see Reagan, supra note 173, at 19 (describing SCIFs).

833. Interview with Hon. T.S. Ellis III, Sept. 5, 2007.

834. Id.

835. Id.

836. Id.

837. United States v. Lindh, No. 1:02-cr-37, 2002 WL 1298601 at *1 (E.D. Va. May 30, 2002); see Masters, supra note 796; U.S. Still Fights Lindh Defense on Interviews with Detainees, Wash. Post, May 15, 2002, at A13.

838. Lindh, 2002 WL 1298601 at *1 2; Interview with Hon. T.S. Ellis III, Sept. 5, 2007; see 

Masters, supra note 796. 839. Lindh, 2002 WL 1298601 at *1 & n.1.

840. Id. at *1.

841. Id.

842. Id.

843. Id.

844. Id.

845. Id.; see Masters, supra note 796.
National Security Case Management Studies (11/14/2011) 97

Challenge: Witness Security

Lindh pleaded guilty on a day the court was prepared to take testimony from a

covert agent in a hearing on Lindh s motion to suppress his confession.846 To protect the witness by shielding the witness s identity, Judge Ellis worked with the

classified information security officers and the Marshal Service to make adjustments to the courtroom.847 The courtroom was outfitted with special draperies and 

screens.848 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.849

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.850 The courtroom was equipped with an electronic device that would

distort the witness s voice, but the words would be audible to the parties and the

public.851

 846. Interview with Hon. T.S. Ellis III, Sept. 5, 2007; see Jackman, supra note 794; Lewis, supra note 816; Romero & Temple-Raston, supra note 275, at 188, 192 (reporting that a condition of 

the plea agreement was that Lindh accept the agreement before the suppression hearing).

847. Interview with Hon. T.S. Ellis III, Sept. 5, 2007; Interview with Dep t of Justice Litig. Sec. Group Staff, Nov. 6, 2007.

848. Interview with Hon. T.S. Ellis III, Sept. 5, 2007; Interview with Dep t of Justice Litig. Sec. Group Staff, Nov. 6, 2007; see Jackman, supra note 794; Lewis, supra note 816. 849. Interview with Hon. T.S. Ellis III, Sept. 5, 2007.

850. United States v. Rosen, 520 F. Supp. 2d 786, 795 n.15 (E.D. Va. 2007) ( the court indicated that it would allow a clandestine government intelligence agent to appear at an evidentiary

hearing under an assumed name, and the courtroom would be arranged in such a way that the government, the defendant and defense counsel would see and confront the agent, while others in the

courtroom would be able to [hear], but not [see] the agent ); Interview with Hon. T.S. Ellis III, Sept. 5, 2007.

851. Interview with Hon. T.S. Ellis III, Sept. 5, 2007.
98 National Security Case Management Studies (11/14/2011)

September 11 Damages

In re Terrorist Attacks on September 11, 2001 

(Richard Conway Casey and George B. Daniels, 

S.D.N.Y.) and In re September 11 Litigation and 

Related Actions (Alvin K. Hellerstein, S.D.N.Y.)

Actions for damages resulting from the terrorist attacks on September 11, 2001, include a couple of dozen actions against the terrorists and a few thousand actions 

against airlines, airport security companies, and property managers.

Actions Against Terrorists

On September 4, 2002, 318 survivors of the September 11, 2001, attacks on the

United States filed in the U.S. District Court for the Southern District of New

York a 91-page civil complaint for damages.852 The plaintiffs were 44 persons

injured in the attacks and 274 representatives of estates of persons killed in the

attacks.853 The 141 defendants were (1) the Al Qaeda Islamic Army and 38 affiliated persons and entities, including Osama Bin Laden; (2) the 19 deceased hijackers and Zacarias Moussaoui; (3) the Taliban and Muhammad Omar; (4) the

Republic of Iraq and 15 affiliated persons and entities, including Saddam Hussein; 

and 64 entities or individuals who provided financial or other support to Al Qaeda and its terrorist activities. 854

Also on September 4, the law firm representing plaintiffs in the first suit filed 

a second action on behalf of seven estates and more than 1,000 firefighters, police 

officers, paramedics, and others against the Al Qaeda Islamic Army.855 On September 10, the plaintiffs amended their complaint to include 300 estates and 51

individuals as plaintiffs.856 On the same day, four other actions were filed against

similar defendants.857

 852. Complaint, Ashton v. Al Qaeda Islamic Army, No. 1:02-cv-6977 (S.D.N.Y. Sept. 4, 2002) [hereinafter Ashton Complaint]; see Discovery Opinion at 1, In re Terrorist Attacks on Sept.

11, 2001, No. 1:03-md-1570 (S.D.N.Y. Jan. 13, 2010); Marcia Coyle, How Two Lawyers Brought

a Suit They Just Might Win, Nat l L.J., Nov. 11, 2002, at A1; Tina Kelley, Suit by Victims Kin

Says Iraq Knew of 9/11 Plans, N.Y. Times, Sept. 5, 2002, at A15.

853. Ashton Complaint, supra note 852. 854. Id.; id. at 29; see Coyle, supra note 852. 855. Docket Sheet, Beyer v. Al Qaeda Islamic Army No. 1:02-cv-6978 (S.D.N.Y. Sept. 4, 2002); see Coyle, supra note 852; Kelley, supra note 852. 856. First Amended Complaint, Beyer, No. 1:02-cv-6978 (S.D.N.Y. Sept. 10, 2002).

857. Docket Sheet, Bauer v. Al Qaeda Islamic Army, No. 1:02-cv-7236 (S.D.N.Y. Sept. 10, 2002) (action by one individual and two estates); Docket Sheet, Burlingame v. Bin Laden, No. 1:02-cv-7230 (S.D.N.Y. Sept. 10, 2002) (action by 114 individuals and estates); Docket Sheet, Mayore Estates, L.L.C. v. Al Qaeda Islamic Army, No. 1:02-cv-7214 (S.D.N.Y. Sept. 10, 2002)

(action by the owners of a building across the street from the World Trade Center); Docket Sheet, 

Schneider v. Al Qaeda Islamic Army, No. 1:02-cv-7209 (S.D.N.Y. Sept. 10, 2002) (action by 6

estates).
National Security Case Management Studies (11/14/2011) 99

All six actions were consolidated before Judge Allen G. Schwartz,858and a

consolidated master complaint was filed on March 6, 2003, with approximately

1,500 plaintiffs and 400 defendants.859 The consolidated action was reassigned to

Judge Richard Conway Casey after Judge Schwartz s death.860

The plaintiffs filed amended consolidated master complaints on August 1 and

13 and September 5, 2003; March 10, 2004; and September 20 and 30, 2005

ultimately naming 2,582 plaintiffs and 160 defendants.861

On December 9, 2003, the Judicial Panel on Multidistrict Litigation joined the

consolidated action with three other actions in the Southern District of New

York862and two actions in the District of the District of Columbia,863 creating In 

re Terrorist Attacks on September 11, 2001

864 in the Southern District of New

York.865

 858. Consolidation Order, Ashton v. Al Qaeda Islamic Army, No. 1:02-cv-6977 (S.D.N.Y. Nov. 19, 2002).

859. Consolidated Master Complaint, id. (Mar. 6, 2003) [hereinafter Ashton Consolidated Master Complaint].

860. Reassignment Notice, id. (Apr. 16, 2003).

The action was reassigned to Judge George B. Daniels after Judge Casey s March 22, 2007, death. Reassignment Notice, id. (Apr. 17, 2007) [hereinafter Apr. 17, 2007, Reassignment Notice]; 

see Obit., Richard Conway Casey, 74, Blind Federal Judge, N.Y. Times, Mar. 24, 2007, at C10. 

Tim Reagan interviewed Owen Smith, Judge Casey s law clerk from June 2006 through the

transition of Judge Casey s cases, by telephone on May 17, 2007, and in Mr. Smith s office on

June 26, 2007.

861. Sixth Amended Consolidated Master Complaint, In re Terrorist Attacks on Sept. 11, 2001, No. 1:03-md-1570 (S.D.N.Y. Sept. 30, 2005); Fifth Amended Consolidated Master Complaint, id. (Sept. 20, 2004); Fourth Amended Consolidated Master Complaint, id. (Mar. 10, 2004);

Third Amended Consolidated Master Complaint, Ashton, No. 1:02-cv-6977 (S.D.N.Y. Sept. 5, 2003); Second Amended Consolidated Master Complaint, id. (Aug. 13, 2003); First Amended

Consolidated Master Complaint, id. (Aug. 1, 2003).

862. Docket Sheet, York v. Al Qaeda Islamic Army, No. 1:03-cv-5493 (S.D.N.Y. July 8, 2003); Docket Sheet, Salvo v. Al Qaeda Islamic Army, No. 1:03-cv-5071 (S.D.N.Y. July 8, 2003)

[hereinafter Salvo Docket Sheet]; Docket Sheet, Tremsky v. Bin Laden, No. 1:02-cv-7300 

(S.D.N.Y. Sept. 11, 2002).

A pro se action was dismissed for failure to execute service, Docket Sheet, Iwachiw v. Al- Baraka Inv. & Dev. Corp., No. 1:02-cv-7303 (S.D.N.Y. Sept. 11, 2002); see Docket Sheet, Iwachiw v. Al-Baraka Inv. & Dev. Corp., No. 03-9028 (2d Cir. Oct. 3, 2002) (noting denial of a motion to appeal in forma pauperis), and another action was dismissed voluntarily, Docket Sheet, Adone v. Al-Baraka Inv. & Dev. Corp., No. 1:02-cv-8190 (S.D.N.Y. Oct. 16, 2002).

863. Docket Sheet, Burnett v. Al Baraka Inv. & Dev. Corp., No. 1:02-cv-1616 (D.D.C. Aug. 15, 2002), refiled as Burnett v. Al Baraka Inv. & Dev. Corp., No. 1:03-cv-9849 (S.D.N.Y. Dec. 11, 2003); Docket Sheet, Havlish v. Bin-Laden, No. 1:02-cv-305 (D.D.C. Feb. 19, 2002), refiled 

as Havlish v. Bin-Laden, No. 1:03-cv-9848 (S.D.N.Y. Dec. 11, 2003); see Seven Families Sue Bin Laden and Others for Billions, N.Y. Times, Feb. 20, 2002, at A11 (reporting on the original filing

of Havlish).

864. Docket Sheet, In re Terrorist Attacks, No. 1:03-md-1570 (S.D.N.Y. Dec. 10, 2003) [hereinafter S.D.N.Y. In re Terrorist Attacks Docket Sheet].

865. In re Terrorist Attacks on Sept. 11, 2001, 295 F. Supp. 2d 1377 (J.P.M.L. 2003); see Consolidation and Transfer Motion, In re Terrorist Attacks on Sept. 11, 2001, No. 1570 (J.P.M.L. Aug. 7, 2003), filed in Havlish, No. 1:02-cv-305 (D.D.C. Aug. 11, 2003); see also In re Terrorist 

Attacks on Sept. 11, 2001, 538 F.3d 71, 78 (2d Cir. 2008); In re Terrorist Attacks on Sept. 11,
100 National Security Case Management Studies (11/14/2011)

The first panel-added New York case was a class action filed on September

11, 2002, by three named plaintiffs against Osama Bin Laden, Saddam Hussein, the Taliban, and 98 other defendants.866 The second New York case was filed on

July 8, 2003, by an estate against the same 399 defendants as were named in the

consolidated master complaint in the first consolidated action.867 The third New

York case also was filed on July 8 by four estates against 222 defendants similar 

to the list in the original complaint in the first-filed action of the original consolidation.868

The first panel-added District of Columbia case was a class action filed on

February 19, 2002, by seven estates against 167 defendants: Osama Bin Laden; 

the Taliban; the countries of Afghanistan, Iran, and Iraq; the 19 hijackers and Zacarias Moussaoui; and more than 100 persons and entities identified by the government as global terrorists.869 An amended complaint listed 85 plaintiff estates

and 27 defendants, omitting the global terrorists. 870

The second District of Columbia case was based on a complaint filed on August 15 against 100 alleged financial supporters of the terrorist attacks.871 Listed 

as plaintiffs were 407 named estates, 37 named individuals, 73 Doe estates

(specific estates given pseudonyms), nine Doe individuals (specific individuals

given pseudonyms), and 159 additional Doe plaintiffs (identified as John and

Jane Doe 42 through 200).872 Ultimately the case had 4,779 listed plaintiffs and

 2001, 718 F. Supp. 2d 456, 464 (S.D.N.Y. 2010); Discovery Opinion, supra note 852, at 1 ( The

plaintiffs in the civil actions comprising this multi-district litigation seek to recover damages arising out of the atrocities committed by terrorists on September 11, 2001. ); John F. Murphy, Civil 

Litigation Against Terrorists and the Sponsors of Terrorism: Problems and Prospects, 28 Rev. Litig. 315, 329 (2008).

866. Complaint, Tremsky, No. 1:02-cv-7300 (S.D.N.Y. Sept. 11, 2002); see also Amended 

Complaint, id. (Aug. 22, 2003) (same parties).

867. Complaint, Salvo, No. 1:03-cv-5071 (S.D.N.Y. July 8, 2003); see Ashton Consolidated 

Master Complaint, supra note 859. The case was designated as related to the original consolidation and assigned to Judge Casey on Aug. 13, 2003. Salvo Docket Sheet, supra note 862. 868. Complaint, York v. Al Qaeda Islamic Army, No. 1:03-cv-5493 (S.D.N.Y. July 24, 2003);

see Ashton Complaint, supra note 852. The case was designated as related to the original consolidation and assigned to Judge Casey on August 18, 2003. Assignment Notice, York, No. 1:03-cv- 5493 (S.D.N.Y. Aug. 18, 2003); Docket Sheet, id. (July 8, 2003). The plaintiffs voluntarily dismissed this action as duplicative of the consolidation on March 22, 2004. Dismissal, id. (Mar. 22, 2004). 869. Class Action Complaint, Havlish, No. 1:02-cv-305 (D.D.C. Feb. 19, 2002).

870. Second Amended Complaint, Havlish v. Bin Laden, No. 1:03-cv-9848 (S.D.N.Y. Sept. 7, 2006), also filed in In re Terrorist Attacks on Sept. 11, 2001, No. 1:03-md-1570 (S.D.N.Y. Sept. 7, 

2006); see Amended Complaint, Havlish, No. 1:02-cv-305 (D.D.C. May 3, 2002) (listing 55 plaintiff estates and 20 defendants); see also Third Amended Complaint, In re Terrorist Attacks, No. 1:03-md-1570 (S.D.N.Y. June 23, 2010).

871. Complaint, Burnett v. Al Baraka Inv. & Dev. Corp., No. 1:02-cv-1616 (D.D.C. Aug. 15, 2002) [hereinafter D.D.C. Burnett Complaint]; see In re Terrorist Attacks on Sept. 11, 2001, 538

F.3d 71, 78 (2d Cir. 2008); Coyle, supra note 852. 872. D.D.C. Burnett Complaint, supra note 871.
National Security Case Management Studies (11/14/2011) 101

205 defendants.873 By the time this case had been included in the multidistrict

consolidation, its plaintiffs already had filed a similar complaint in the Southern

District of New York,874which was added to the multidistrict consolidation as a

tag-along case on March 10, 2004,875and then voluntarily dismissed as duplicative on February 12, 2008.876

Also consolidated as tag-along cases were one case filed in the District of the

District of Columbia and three cases filed in the Southern District of New York:

(1) an action filed on August 20, 2003, by the estate and four survivors of the

World Trade Center s chief of security against 73 defendants, including Iraq, Al- Qaeda, and the 19 September 11 hijackers;877 (2) an action filed on September 10

by 29 insurance companies against Al-Qaeda and 524 alleged supporters;878 (3) an 

 873. Addition of Parties, Burnett, No. 1:02-cv-1616 (D.D.C. Dec. 30, 2003) (adding two defendants); Addition and Removal of Parties, id. (Dec. 19, 2003) (adding 224 plaintiffs and removing eight plaintiffs and one defendant); Burnett v. Al Baraka Inv. & Dev. Corp., 292 F. Supp. 2d 9 

(D.D.C. 2003) (Nov. 14, 2003, dismissal of two defendants); Addition and Removal of Defendants, Burnett, No. 1:02-cv-1616 (D.D.C. Oct. 27, 2003) (removing one defendant); Addition and

Removal of Parties, id. (Sept. 10, 2003) (adding 207 plaintiffs and removing three plaintiffs); Addition and Removal of Parties, id. (Sept. 5, 2003) (adding 489 plaintiffs and removing 11 plaintiffs); Addition and Removal of Defendants, id. (Aug. 22, 2003) (removing six defendants); Addition and Removal of Parties, id. (Aug. 1, 2003) (adding 550 plaintiffs and removing one plaintiff);

Addition and Removal of Parties, id. (May 23, 2003) (adding 375 plaintiffs and removing three

plaintiffs); Addition and Removal of Defendants, id. (May 2, 2003) (adding 27 defendants and

removing one defendant); Addition and Removal of Parties, id. (Feb. 21, 2003) (adding 245 plaintiffs and nine defendants and removing seven plaintiffs and 11 defendants); Third Amended Complaint, id. (Nov. 22, 2002) (listing as plaintiffs 1,785 named estates, 799 named individuals, 129

Doe estates, nine Doe individuals, and 5,000 additional Doe plaintiffs, and listing 189 defendants); 

Amended Complaint, id. (Sept. 4, 2002); see Jennifer Senior, A Nation Unto Himself, N.Y. Times, 

Mar. 14, 2004, at 636.

874. Complaint, Burnett v. Al Baraka Inv. & Dev. Corp., No. 1:03-cv-5738 (S.D.N.Y. Aug. 1, 2003); see id. at 265 (stating that the action is commenced in this Court solely as a prophylactic

measure to protect 9/11 victims whose rights have been threatened by certain New York workers

compensation insurance carriers and in the event that subject matter jurisdiction is lacking in the

District of Columbia action ); see also Amended Complaint, id. (Sept. 3, 2003).

875. Docket Sheet, id. (Aug. 1, 2003).

876. Notice of Voluntary Dismissal, id. (Feb. 12, 2008).

The New York action was filed as a jurisdictional precaution, but the complaint was never

served. Status Conference, In re Terrorist Attacks on Sept. 11, 2001, No. 1:03-md-1570 (S.D.N.Y. 

June 26, 2007) (representation by a plaintiff s attorney). 877. Complaint, O Neill v. Republic of Iraq, No. 1:03-cv-1766 (D.D.C. Aug. 20, 2003); see 

Docket Sheet, id. (noting multidistrict consolidation on Jan. 27, 2004); see also First Consolidated

Complaint, id. (naming 109 defendants), filed in In re Terrorist Attacks, No. 1:03-md-1570 

(S.D.N.Y. Sept. 30, 2005); Third Amended Complaint, O Neill v. Republic of Iraq, No. 1:04-cv- 1076 (S.D.N.Y. June 7, 2005) (naming 108 defendants); Second Amended Complaint, id. (Dec. 

30, 2004) (naming 112 defendants); First Amended Complaint, id. (Sept. 28, 2004) (naming 80

defendants); Docket Sheet, id. (Feb. 10, 2004) (noting multidistrict consolidation on Feb. 9, 2004).

It was reported that John O Neill was an FBI expert on the terrorist plans of Osama Bin Laden

and Al-Qaeda who was forced out of the FBI a few months before the September 11, 2001, attacks. Frontline: The Man Who Knew (PBS television broadcast Oct. 3, 2002).

878. Complaint, Fed. Ins. Co. v. Al Qaida, No. 1:03-cv-6978 (S.D.N.Y. Sept. 10, 2003);

Docket Sheet, id. (noting multidistrict consolidation on Mar. 10, 2004). At the time of consolida-
102 National Security Case Management Studies (11/14/2011)

action filed on September 10 by 28 estates and 27 individuals against the defendants listed in the original consolidation s third amended master complaint;879 and 

(4) an action filed on October 30 by three insurance companies against Saudi

Arabia and Syria.880

The multidistrict consolidation also includes nine cases subsequently filed in

the Southern District of New York. After their District of Columbia case was

transferred to New York, the security chief s survivors filed class actions on

March 10, 2004, against Saudi Arabia, Syria, and Sudan,881and 38 alleged financial supporters of the September 11 terrorists.882 Another seven cases were filed in 

August and September of 2004: (1) on August 6, an insurance company filed an

action against 495 defendants;883 (2) on September 1, six insurance companies

filed an action against 426 defendants;884 (3) on September 2, Cantor Fitzgerald

filed an action against 88 defendants;885 (4) on September 10, 10 insurance companies filed an action against Saudi Arabia and Syria;886 (5) on September 10, 10

World Trade Center businesses filed an action against 201 defendants;887 (6) on 

 tion, the complaint was amended to include 41 plaintiffs. First Amended Complaint, id. (Mar. 10, 2004); see also In re Terrorist Attacks on Sept. 11, 2001, 349 F. Supp. 2d 765, 780 n.2 (S.D.N.Y. 2005) ( forty-one insurance companies that have paid and reserved claims in excess of $4.5 billion 

as a result of the September 11 attacks ). 879. Complaint, Barrera v. Al Qaeda Islamic Army, No. 1:03-cv-7036 (S.D.N.Y. Sept. 10, 2003); Docket Sheet, id. (noting multidistrict consolidation on Mar. 10, 2004).

880. Docket Sheet, Vigilant Ins. Co. v. Kingdom of Saudi Arabia, No. 1:03-cv-8591 (S.D.N.Y. 

Oct. 30, 2003) (noting multidistrict consolidation on Nov. 12, 2003, which appears to be an error).

881. Class Action Complaint, O Neill v. Kingdom of Saudi Arabia, No. 1:04-cv-1922 

(S.D.N.Y. Mar. 10, 2004); see Docket Sheet, id. (noting multidistrict consolidation on Apr. 4, 2004); see also First Amended Complaint, id., filed in In re Terrorist Attacks, No. 1:03-md-1570 

(S.D.N.Y. Sept. 30, 2005).

882. Class Action Complaint, O Neill v. Al Baraka Inv. & Dev. Corp., No. 1:04-cv-1923 

(S.D.N.Y. Mar. 10, 2004); see Docket Sheet, id. (noting multidistrict consolidation on Apr. 4, 2004); see also First Amended Complaint, id. (naming 95 defendants), filed in In re Terrorist Attacks, No. 1:03-md-1570 (S.D.N.Y. Sept. 30, 2005).

883. Complaint, New York Marine and Gen. Ins. Co. v. Al Qaida, No. 1:04-cv-6105 (S.D.N.Y. 

Aug. 6, 2004); see Docket Sheet, id. (noting multidistrict consolidation on Sept. 21, 2004); see 

also Second Amended Complaint, id. (Sept. 30, 2005) (listing 419 defendants); First Amended

Complaint, id. (Dec. 23, 2004) (listing 478 defendants).

884. Complaint, Continental Cas. Co. v. Al Qaeda Islamic Army, No. 1:04-cv-5970 (S.D.N.Y. Sept. 1, 2004); see Docket Sheet, id. (noting multidistrict consolidation on Sept. 29, 2004); see 

also Second Amended Complaint, id. (420 defendants); First Amended Complaint, id. (434 defendants); see also Leslie Eaton, Legal Battles Reflect Unhealed Wounds of Terror, N.Y. Times, Sept. 

9, 2004, at B1.

885. Complaint, Cantor Fitzgerald & Co. v. Akida Bank Private Ltd., No. 1:04-cv-7065 

(S.D.N.Y. Sept. 2, 2004); see Docket Sheet, id. (noting multidistrict consolidation on Sept. 21, 2004); see also Amended Complaint, id. (Sept. 10, 2004).

886. Complaint, Pacific Employers Ins. Co. v. Kingdom of Saudi Arabia, No. 1:04-cv-7216 

(S.D.N.Y. Sept. 10, 2004); see Docket Sheet, id. (noting multidistrict consolidation on Sept. 21, 2004).

887. Complaint, Euro Brokers, Inc. v. Al Baraka Inv. & Dev. Corp., No. 1:04-cv-7279 

(S.D.N.Y. Sept. 10, 2004); see Docket Sheet, id. (noting multidistrict consolidation on Sept. 29, 2004).
National Security Case Management Studies (11/14/2011) 103

September 10, the World Trade Center property managers filed an action against

201 defendants;888and (7) on September 10, plaintiffs filed a complaint against

Riggs Bank for failure to notice suspicious financial transactions that aided the

September 11 terrorists, and they amended their complaint on March 24, 2005, to

name 1,233 individuals and 1,117 estates as plaintiffs.889

On January 18, 2005, Judge Casey ruled that claims against Saudi Arabia and

members of its royal family should be dismissed, largely as a result of foreign sovereign immunity and lack of personal jurisdiction.890 On September 21, Judge 

Casey dismissed additional Saudi royals and other defendants.891 The dismissals

became final on January 10, 2006,892and the court of appeals affirmed on August

14, 2008.893

Judge Casey died on March 22, 2007, and these cases were reassigned to

Judge George B. Daniels.894 Discovery and other matters were referred to Magistrate Judge Frank Maas.895

On June 16, 2010, Judge Daniels dismissed actions against 49 foreign defendants for lack of personal jurisdiction,896 but decided that plaintiffs had pleaded

facts sufficient to confer the court s jurisdiction over Dubai Islamic Bank.897

 888. Complaint, World Trade Ctr. Props. LLC v. Al Baraka Inv. & Dev. Corp., No. 1:04-cv- 7280 (S.D.N.Y. Sept. 10, 2004); see Docket Sheet, id. (noting multidistrict consolidation on Sept. 29, 2004).

889. Amended Complaint, Vadhan v. Riggs Nat l Corp., No. 1:04-cv-7281 (S.D.N.Y. Mar. 24, 2005); see Docket Sheet, id. (Sept. 10, 2004) (noting multidistrict consolidation on Oct. 15, 2004).

890. In re Terrorist Attacks on Sept. 11, 2001, 349 F. Supp. 2d 765 (S.D.N.Y. 2005); see Order 

of Dismissal, In re Terrorist Attacks on Sept. 11, 2001, No. 1:03-md-1570 (S.D.N.Y. May 5, 2005) (applying the Jan. 18, 2005, ruling to dismiss all claims in all cases against the Kingdom of

Saudi Arabia, members of its royal family, and the Al Rajhi Banking and Investment Corp.); see 

also In re Terrorist Attacks on Sept. 11, 2001, 538 F.3d 71, 78 79 (2d Cir. 2008); Discovery Opinion, supra note 852, at 3; Murphy, supra note 865, at 329.

891. In re Terrorist Attacks on Sept. 11, 2001, 392 F. Supp. 2d 539 (S.D.N.Y. 2005); see In re

Terrorist Attacks, 538 F.3d at 79; Discovery Opinion, supra note 852, at 4; Mark Hamblett, Saudi 

Charity Dropped from Suit Over 9/11, N.Y. L.J., Sept. 27, 2005, at 1.

892. Judgment, In re Terrorist Attacks, No. 1:03-md-1570 (S.D.N.Y. Jan. 10, 2006); see In re

Terrorist Attacks on Sept. 11, 2001, No. 1:03-md-1570, 2006 WL 708149 (S.D.N.Y. Mar. 20, 2006) (explaining that Judge Casey decided to certify appeals for defendants dismissed on Rule

12(b)(1) or 12(b)(2) grounds but not defendants dismissed on Rule 12(b)(6) grounds); see also In 

re Terrorist Attacks, 538 F.3d at 75.

893. In re Terrorist Attacks, 538 F.3d 71, cert. denied, ___ U.S. ___, 129 S. Ct. 2859 (2009);

see Discovery Opinion, supra note 852, at 4 6; Eric Lichtblau, Supreme Court Refuses Case by

Sept. 11 Victims Families, N.Y. Times, June 30, 2009, at A12.

894. In re Terrorist Attacks on Sept. 11, 2001, 718 F. Supp. 2d 456, 465 (S.D.N.Y. 2010); Apr. 

17, 2007, Reassignment Notice, supra note 860; see Obit., supra note 860. Tim Reagan attended Judge Daniels first status conference in this litigation on June 26, 2007, and met with Judge Daniels following the conference.

895. In re Terrorist Attacks, 718 F. Supp. 2d at 487; S.D.N.Y. In re Terrorist Attacks Docket 

Sheet, supra note 864. Tim Reagan interviewed Judge Maas for this report in the judge s chambers on June 26, 2007, and on November 6, 2009.

896. In re Terrorist Attacks, 718 F. Supp. 2d at 469 89, 495.
104 National Security Case Management Studies (11/14/2011)

On October 14, 2011, Judge Maas recommended to Judge Daniels a default

judgment against Al-Qaeda in the amount of $9,351,247.965.99.898

Actions Against Domestic Defendants

Meanwhile the U.S. District Court for the Southern District of New York has

been handling many thousand lawsuits against airlines, airport security companies, and property managers for damages resulting from the September 11, 2001, terrorist attacks and their aftermath.

On September 22, 2001, the President signed the Air Transportation Safety

and System Stabilization Act.899 Title IV of the Act created a September 11th

Victim Compensation Fund of 2001

900 to provide compensation to any individual (or relatives of a deceased individual) who was physically injured or killed as

a result of the terrorist-related aircraft crashes of September 11, 2001. 901 The Attorney General appointed Kenneth Feinberg as a special master to administer the

fund.902 The deadline for filing a claim against the fund was established as two

years after the Attorney General and the special master promulgated implementing regulations,903

and after promulgation of the regulations the deadline became

December 22, 2003.904 The Act required plaintiffs to elect either recovery from

 897. Id. at 488 95 ( It can be reasonably inferred, from the allegations pled, that DIB personally and intentionally provided material support to al Qaeda in aid of al Qaeda s plan to commit

an aggressive terrorist strike against the United States, with knowledge that the United States and

its residents would likely bear the brunt of the resulting injuries. ). 898. Report and Recommendation, In re Terrorist Attacks on Sept. 11, 2001, No. 1:03-md- 1570 (S.D.N.Y. Oct. 14, 2011), available at 2011 WL 4903584. 899. 49 U.S.C. § 40101 note, Pub. L. No. 107-42, 115 Stat. 230 (2001); see In re Sept. 11 Litig., 236 F.R.D. 164, 166 (S.D.N.Y. 2006); Colaio v. Feinberg, 262 F. Supp. 2d 273, 279

(S.D.N.Y. 2003); see Jill Schachner Chanen & Margaret Graham Tebo, Accounting for Lives, ABA J., Sept. 2007, at 58, 59.

900. 49 U.S.C. § 40101 note, Pub. L. No. 107-42 § 401, 115 Stat. 230, 237 (2001).

901. Id. § 403; see United States v. Moussaoui, 483 F.3d 220, 225 n.4 (4th Cir. 2007); 

Schneider v. Feinberg, 345 F.3d 135, 138 39 (2d Cir. 2003); In re Sept. 11 Litig., 236 F.R.D. at

166; Colaio, 262 F. Supp. 2d at 278 79.

902. Schneider, 345 F.3d at 138; Colaio, 262 F. Supp. 2d at 279, 281; see Anemona Hartocollis, Little-Noticed 9/11 Lawsuits Will Get Their Day in Court, N.Y. Times, Sept. 4, 2007, at A1;

Chanen & Tebo, supra note 899, at 59.

The fund awarded $7.049 billion to the families of 2,880 of the 2,973 victims killed on September 11, 2001, and to 2,680 persons injured that day. In re Sept. 11 Litig., 236 F.R.D. at 166;

Chanen & Tebo, supra note 899, at 59. Ultimately, 97% of all potential individual wrongful

death claimants presented their claims to the Special Master, Kenneth Feinberg. In re Sept. 11th

Litig., 590 F. Supp. 2d 535, 539 (S.D.N.Y. 2008).

903. 49 U.S.C. § 40101 note, Pub. L. No. 107-42 § 405(a)(3), 115 Stat. 230, 238 (2001); see 

Schneider, 345 F.3d at 139.

904. 28 C.F.R. § 104.62; see Colaio, 262 F. Supp. 2d at 278 79, 281; see also 49 U.S.C. §

40101 note, Pub. L. No. 107-42 § 407, 115 Stat. 230, 240 (2001) (providing for promulgation of

implementing regulations no later than 90 days after enactment of the Act); Hartocollis, supra note 

902.
National Security Case Management Studies (11/14/2011) 105

the fund or recovery by civil action.905 The Act also established exclusive jurisdiction in the Southern District of New York for civil actions,906

except for actions against the terrorists and their supporters.907

On December 20, 2001, the wife of a passenger aboard United Airlines Flight

175, which left Boston for Los Angeles and hit Two World Trade Center, filed a

complaint in the Southern District of New York against United Airlines.908 The 

court assigned the case to Judge Alvin K. Hellerstein.909

During the first six months of 2002, 12 additional actions were filed by estates 

of passengers,910 estates of workers in the World Trade Center,911 and operators of 

 905. 49 U.S.C. § 40101 note, Pub. L. No. 107-42 § 405(c)(3)(B), 115 Stat. 230, 239 40 

(2001); see Schneider, 345 F.3d at 139; In re Sept. 11 Litig., 567 F. Supp. 2d 611, 614 (S.D.N.Y. 2008); Colaio, 262 F. Supp. 2d at 279; see also Gillian K. Hadfield, Framing the Choice Between Cash and the Courthouse: Experiences with the 9/11 Victim Compensation Fund, 42 L. & Soc y

Rev. 645 (2008) (analyzing reasons survivors gave for their choices between the fund and litigation); Hartocollis, supra note 902 (describing parents of an 11-year-old girl killed when American

Flight 77 struck the Pentagon as having to choose between what they perceived as a minimal

award from a federal fund set up to compensate victims or calling one of the many lawyers who

had sent what [the mother] calls advertising packages and filing a lawsuit. ). 906. 49 U.S.C. § 40101 note, Pub. L. No. 107-42 § 408(b)(3), 115 Stat. 230, 241 (2001); see In re Sept. 11 Litig., 567 F. Supp. 2d at 619; Moussaoui, 483 F.3d at 225 n.4; In re Sept. 11 Litig., 236 F.R.D. at 166; In re Sept. 11th Liab. Ins. Coverage Cases, 333 F. Supp. 2d 111, 115 (S.D.N.Y. 

2004); Colaio, 262 F. Supp. 2d at 279; Chanen & Tebo, supra note 899, at 59.

907. 49 U.S.C. § 40101 note, Pub. L. No. 107-42 § 408(c), 115 Stat. 230, 241 (2001); see also

id., Pub. L. No. 107-71, 115 Stat. 646 (also exempting from exclusive jurisdiction civil actions to

recover collateral source obligations ). 908. Docket Sheet, Mariani v. United Air Lines, Inc., No. 1:01-cv-11628 (S.D.N.Y. Dec. 20, 2001).

909. Id.; see Hartocollis, supra note 902. For this report, Tim Reagan interviewed Judge Hellerstein and his law clerk Brian Sutherland

in the judge s chambers on June 25, 2007, and again interviewed Judge Hellerstein in the judge s

chambers on November 5, 2009.

910. Docket Sheet, Miller v. American Airlines, Inc., No. 1:02-cv-3676 (S.D.N.Y. May 14, 2002) (action by the estate of American Flight 11 passenger David Angell, a television screenwriter, against American Airlines and Globe Aviation Services, dismissed as settled Feb. 13, 2008);

Docket Sheet, Koutny v. United Airlines, Inc., No. 1:02-cv-2802 (S.D.N.Y. Apr. 12, 2002) (action 

by the estate of a United Flight 175 passenger against United Airlines and Huntleigh USA, dismissed as settled Dec. 29, 2006); Docket Sheet, Miller v. United Airlines, Inc., No. 1:02-cv-1728 

(S.D.N.Y. Mar. 5, 2002) (action by the estate of a United Flight 93 passenger against United Airlines and Argenbright Security, dismissed as settled Nov. 14, 2007); Docket Sheet, Sweeney v. United Airlines, Inc., No. 1:02-cv-1727 (S.D.N.Y. Mar. 5, 2002) (action by the estate of a United

Flight 175 passenger against United Airlines and Huntleigh USA, dismissed as settled Dec. 29, 2006); Docket Sheet, Lopez v. United Airlines, Inc., No. 1:02-cv-458 (S.D.N.Y. Jan. 17, 2002)

(action by the estate of a United Flight 175 passenger against United Airlines and Huntleigh USA, dismissed as settled Mar. 3, 2008); Docket Sheet, O Hare v. United Airlines, Inc., No. 1:02-cv- 456 (S.D.N.Y. Jan. 17, 2002) (action by the estate of a United Flight 93 passenger against United

Airlines and Argenbright Security, dismissed as settled Nov. 14, 2006); Docket Sheet, Doe v. American Airlines, Inc., No. 1:02-cv-454 (S.D.N.Y. Jan. 17, 2002) (action by the estate of an

American Flight 77 passenger against American Airlines and Argenbright Security, voluntarily

dismissed on Mar. 28, 2002); Docket Sheet, Debeuneure v. American Airlines, Inc., No. 1:02-cv-
106 National Security Case Management Studies (11/14/2011)

businesses in the World Trade Center912 against the airlines that operated the hijacked flights913 and the companies providing security for their departures.914

On June 20, the government initiated a motion to intervene to ensure that

transportation sensitive security information (SSI) would be protected in these

lawsuits.915 The court granted the government s motion and ordered the cases

consolidated.916

During the next four months, 120 additional cases were filed.917 On November 

1, Judge Hellerstein ordered the consolidation of all actions for wrongful death, 

 452 (S.D.N.Y. Jan. 17, 2002) (action by the estate of an American Flight 77 passenger against

American Airlines and Argenbright Security, dismissed as settled on May 16, 2006).

911. Docket Sheet, Pitt v. American Airlines, Inc., No. 1:02-cv-4365 (S.D.N.Y. June 11, 2002) 

(action by the estate of an employee of Cantor Fitzgerald in One World Trade Center against

American Airlines and Globe Aviation Services, voluntarily dismissed on Dec. 31, 2003); Docket

Sheet, Smithwick v. American Airlines, Inc., No. 1:02-cv-2669 (S.D.N.Y. Apr. 8, 2002) (action by 

the estate of a worker in One World Trade Center against American Airlines and Globe Aviation

Services, voluntarily dismissed on Dec. 20, 2002).

912. Docket Sheet, Tower Computer Servs., Inc. v. American Airlines, Inc., No. 1:02-cv-3295 

(S.D.N.Y. Apr. 30, 2002) (action by the operators of a business in One World Trade Center

against American Airlines and Globe Aviation Services, voluntarily dismissed on Nov. 5, 2004);

Docket Sheet, World Trade Farmers v. United Air Lines, Inc., No. 1:02-cv-2987 (S.D.N.Y. Apr. 18, 2002) (action by the operators of a business at the World Trade Center against United Airlines, 

American Airlines, Globe Aviation Services, and Huntleigh USA).

913. American Airlines operated Flight 11 from Boston to Los Angeles, which hit One World

Trade Center, and Flight 77 from Washington to Los Angeles, which hit the Pentagon. United

Airlines operated Flight 175 from Boston to Los Angeles, which hit Two World Trade Center, and 

Flight 93 from Newark to San Francisco, which crashed in Pennsylvania. The 9/11 Commission

Report 1 14, 32 33 (2004).

914. Argenbright Security provided security for United Airlines at Dulles International Airport, near Washington, D.C., which affected American Flight 77, and at Newark International Airport, which affected United Flight 93. The 9/11 Commission Report 3 4 (2004). Globe Aviation

Services provided security for American Airlines at Logan International Airport in Boston, which

affected American Flight 11, and Huntleigh USA provided security for United Airlines at Logan

International Airport in Boston, which affected United Flight 175. The 9/11 Commission Report 2

(2004).

Damages for passengers in international travel are specified by the Warsaw Convention, which 

entitles their survivors to a minimum of 100,000 special drawing rights (equivalent to $153,078

on July 30, 2007) and an opportunity to prove additional damages if the airline cannot prove it

took all reasonable measures to prevent the incident. In re Sept. 11 Litig., 500 F. Supp. 2d 356

(S.D.N.Y 2007).

915. Docket Sheet, Mariani v. United Air Lines, Inc., No. 1:01-cv-11628 (S.D.N.Y. Dec. 20, 2001) (noting June 26, 2002, notice).

916. Order, Mariani, No. 1:01-cv-11628 (S.D.N.Y. July 25, 2002); see Benjamin Weiser, Ruling Favors Limited Access to 9/11 Data, N.Y. Times, July 13, 2002, at B1; Benjamin Weiser, Security Cited in Proposals on Lawsuits from Sept. 11, N.Y. Times, Sept. 20, 2002, at B5.

917. The cases were assigned the following docket numbers: 1:02-cv-5288, 1:02-cv-6186, 

1:02-cv-6339, 1:02-cv-6358, 1:02-cv-6361 through 1:02-cv-6365, 1:02-cv-6378, 1:02-cv-6379, 

1:02-cv-6658, 1:02-cv-6885, 1:02-cv-7031, 1:02-cv-7032, 1:02-cv-7048, 1:02-cv-7110 through

1:02-cv-7122, 1:02-cv-7134, 1:02-cv-7135, 1:02-cv-7143 through 1:02-cv-7156, 1:02-cv-7164, 

1:02-cv-7165, 1:02-cv-7167, 1:02-cv-7170 through 1:02-cv-7172, 1:02-cv-7174, 1:02-cv-7176, 

1:02-cv-7177, 1:02-cv-7179, 1:02-cv-7180, 1:02-cv-7182, 1:02-cv-7185, 1:02-cv-7188, 1:02-cv-
National Security Case Management Studies (11/14/2011) 107

personal injury, and property damage or business loss currently pending or hereinafter filed pursuant to the [Air Transportation Safety and System Stabilization

Act] against any defendant (including defendants airlines and airline security

companies), except for alleged hijackers or terrorists and established a master

docket case entitled In re September 11 Litigation.918

Judge Hellerstein also established a suspense docket to allow plaintiffs to file

a civil action before expiration of its statute of limitation without impairing their

ability to seek compensation from the fund instead.919 After the deadline passed

for seeking compensation from the fund, Judge Hellerstein dismissed all actions

on the suspense docket.920

The plaintiffs filed five master complaints on December 11 four pertaining

to personal injuries arising from the crash of each plane and one pertaining to

property damage and business interruption.921 Both the court and the plaintiffs

executive committee established publicly accessible Internet webpages to post

information about the litigation and selected court filings.922

 7195, 1:02-cv-7196, 1:02-cv-7198, 1:02-cv-7201, 1:02-cv-7203 through 1:02-cv-7205, 1:02-cv- 7208, 1:02-cv-7212, 1:02-cv-7219 through 1:02-cv-7227, 1:02-cv-7231 through 1:02-cv-7233, 

1:02-cv-7243 through 1:02-cv-7246, 1:02-cv-7248 through 1:02-cv-7250, 1:02-cv-7252, 1:02-cv- 7256, 1:02-cv-7258 through 1:02-cv-7262, 1:02-cv-7264, 1:02-cv-7267, 1:02-cv-7269 through

1:02-cv-7273, 1:02-cv-7275, 1:02-cv-7279, 1:02-cv-7289, 1:02-cv-7290, 1:02-cv-7296, 1:02-cv- 7305, 1:02-cv-7314, 1:02-cv-7328, 1:02-cv-7331, 1:02-cv-7389, 1:02-cv-7608, 1:02-cv-7912, 

1:02-cv-7920, 1:02-cv-8092, 1:02-cv-8100, 1:02-cv-8111, 1:02-cv-8434, 1:02-cv-8554, and 1:02- cv-8688.

918. Order, In re Sept. 11 Litig., No. 1:21-mc-97 (S.D.N.Y Nov. 1, 2002); see Docket Sheet, id.; see also In re Sept. 11 Litig., 236 F.R.D. 164, 167, 168 n.3 (S.D.N.Y. 2006).

The code 21 appears in place of the year in the case number because in the court s records of

miscellaneous cases 21 is the code for multidistrict litigation. Interview by e-mail with Southern 

District of New York Staff, Aug. 20, 2009.

919. Order, In re Sept. 11 Litig., No. 1:21-mc-97 (S.D.N.Y. Dec. 2, 2003); Order, id. (Nov. 21, 

2003); Order, id. (July 23, 2003); Order, Mulligan v. Port Auth. of N.Y. & N.J., No. 1:02-cv-6885 

(S.D.N.Y. Sept. 6, 2002); In re Sept. 11 Litig., 236 F.R.D. at 166 67; see Benjamin Weiser, Judge 

Says Sept. 11 Families Can Change Minds on Suing, N.Y. Times, Sept. 4, 2002, at B3.

Proceedings [before Judge Hellerstein] began after the Victim Compensation Fund closed, so

that the litigation did not compete with the workings of the Fund. In re Sept. 11 Litig., 600 F. Supp. 2d 549, 552 (S.D.N.Y. 2009).

920. Order, In re Sept. 11 Litig., No. 1:21-mc-97 (S.D.N.Y. Feb. 20, 2004).

Subsequently, the court resolved the suspense docket for cleanup and aftermath cases. Order, In re World Trade Ctr. Disaster Site Litig., No. 1:21-mc-100 (S.D.N.Y. Mar. 15, 2004); Corrective 

Order, id. (Mar. 3, 2004).

921. Docket Sheet, In re Sept. 11 Litig., No. 1:21-mc-97 (S.D.N.Y. Nov. 1, 2002); see Fourth

Amended Complaint, id. (Sept. 14, 2007) (concerning American Flight 11 from Boston to Los

Angeles, which crashed into One World Trade Center); Fourth Amended Complaint id. (Aug. 1, 2007) (concerning American Flight 77 from Dulles to Los Angeles, which crashed into the Pentagon); Third Amended Complaint, id. (Aug. 1, 2007) (concerning United Flight 93 from Newark to

San Francisco, which crashed in Pennsylvania); Fourth Amended Complaint, id. (Sept. 14, 2007)

(concerning United Flight 175 from Boston to Los Angeles, which crashed into Two World Trade

Center); Fourth Amended Complaint, id. (Jan. 18, 2005) (concerning property injuries).

922. See http://nysd.uscourts.gov/sept11 (the court s website); http://www.sept11tortlitigation. 

com (the plaintiffs website).
108 National Security Case Management Studies (11/14/2011)

By February 11, 2003, an additional 38 cases had been filed.923 On that date, Judge Hellerstein divided the cases into two groups: (1) cases claiming damages

arising from conduct through the September 11, 2001, attacks, and (2) cases

claiming damages arising mostly from respiratory injuries during the cleanup and

aftermath period.924 Cases in the first group remained part of the original master

docket case, and cases in the second group were assigned to a new master docket

case entitled In re World Trade Center Disaster Site Litigation.925

One of the cases filed in early 2003 was an action by an insurance company to 

determine its obligation to insure and provide defense costs for owners and operators of the World Trade Center.926 Judge Hellerstein named this and related actions In re September 11th Liability Insurance Coverage Cases.927

By the end of June, another 13 cases had been filed; eight of these were consolidated in the cleanup master docket,928

and the other five were consolidated in

the attacks master docket.929

 923. The cases were assigned the following docket numbers: 1:02-cv-8916, 1:02-cv-8918, 

1:02-cv-8919, 1:02-cv-8938, 1:02-cv-9126 through 1:02-cv-9128, 1:02-cv-9234, 1:02-cv-9935, 

1:02-cv-10052, 1:02-cv-10054, 1:02-cv-10160, 1:02-cv-10270 through 1:02-cv-10275, 1:02-cv- 10304, 1:03-cv-6 through 1:03-cv-8, 1:03-cv-29, 1:03-cv-33 through 1:03-cv-38, 1:03-cv-131, 

1:03-cv-193 through 1:03-cv-195, 1:03-cv-332, 1:03-cv-439, 1:03-cv-644, 1:03-cv-645, and 1:03- cv-912.

924. Case Management Order, In re World Trade Ctr. Disaster Site Litig., No. 1:21-mc-100 

(S.D.N.Y. Feb. 13, 2003); Interview with Hon. Alvin K. Hellerstein, June 25, 2007.

925. See Docket Sheet, In re World Trade Ctr. Disaster Site Litig., No. 1:21-mc-100 (S.D.N.Y. 

Feb. 13, 2003); see also In re Sept. 11 Litig., 236 F.R.D. 164, 168 n.3 (S.D.N.Y. 2006).

Judge Hellerstein denied the government defendants motions to dismiss on immunity

grounds, In re World Trade Ctr. Disaster Site Litig., 456 F. Supp. 2d 520 (S.D.N.Y. 2006), af d, 521 F.3d 169 (2d Cir. 2008); see Anthony DePalma, 9/11 Lawyer Made Name in Lawsuit on Diet

Pills, N.Y. Times, Mar. 30, 2008, at 18.

926. Docket Sheet, Zurich American Ins. Co. v. World Trade Ctr. Props., No. 1:03-cv-332 

(S.D.N.Y. Jan. 15, 2003).

927. In re Sept. 11th Liab. Ins. Coverage Cases, 333 F. Supp. 2d 111, 115 (S.D.N.Y. 2004).

Judge Hellerstein ruled that World Trade Center liability insurance policies did not include defense costs, except for one policy that would come into effect once $265 million in damages had

been paid. In re Sept. 11th Liab. Ins. Coverage Cases, 458 F. Supp. 2d 104 (S.D.N.Y. 2006). Judge Hellerstein resolved this part of the litigation by sanctioning insurance companies

$1,250,000 for denying coverage and by dismissing the action. In re Sept. 11th Liab. Ins. Coverage Cases, 243 F.R.D. 114 (S.D.N.Y. 2007) (sanctions); Judgment, Zurich American Ins. Co., No. 1:03-cv-332 (S.D.N.Y. July 23, 2007); Order, id. (Jan. 18, 2007) (dismissal). Appeals were settled

subsequent to oral arguments. Docket Sheet, Zurich American Ins. Co. v. World Trade Ctr. Props., No. 07-991 (2d Cir. Mar. 12, 2007) (settled Jan. 9, 2009); Docket Sheet, Zurich American Ins. Co. 

v. World Trade Ctr. Props., No. 07-776 (2d Cir. Mar. 1, 2007) (settled Oct. 24, 2008); Docket

Sheet, Zurich American Ins. Co. v. World Trade Ctr. Props., No. 07-706 (2d Cir. Feb. 26, 2007)

(settled Jan. 9, 2009); Docket Sheet, Zurich American Ins. Co. v. World Trade Ctr. Props., No. 07- 530 (2d Cir. Feb. 14, 2007) (settled Jan. 9, 2009).

928. The cases were assigned the following docket numbers: 1:03-cv-2067, 1:03-cv-2104, 

1:03-cv-2447, 1:03-cv-2621 through 1:03-cv-2623, 1:03-cv-3040, and 1:03-cv-4064.

929. The cases were assigned the following docket numbers: 03-cv-1016, 03-cv-1040, 03-cv- 2004, 03-cv-2104, 03-cv-2621, 03-cv-2622, 03-cv-2684, and 03-cv-3999.
National Security Case Management Studies (11/14/2011) 109

Some cleanup cases were filed in state court against the City of New York, the 

Port Authority of New York and New Jersey, or both, and removed to federal

court.930 The Southern District of New York s exclusive jurisdiction applies to

suits for damages resulting from or relating to the terrorist attacks.931 Judge 

Hellerstein determined that with respect to actions in New York his court s exclusive jurisdiction applied to injuries at the World Trade Center site from the time

of the crashes on September 11 until the search for survivors ceased on September 

29.932 Judge Hellerstein remanded all actions that included only claims for injuries 

outside those geographical and temporal limits, but assumed supplemental jurisdiction over claims outside the limits in actions that included claims within the

limits.933

Judge Hellerstein certified his decision for interlocutory appeal and stayed the

remands pending appeal.934 Approximately two years later, the court of appeals

dismissed the defendants appeals of the remands, because remands to state court

are not reviewable.935 The appellate court reviewed some plaintiffs cross-appeals 

of Judge Hellerstein s denials of their remand motions and affirmed.936 The court

noted that its reasoning implied that the remands were improper, because Judge

Hellerstein s temporal and geographic distinctions had no basis in the Act.937 The 

court of appeals, therefore, invited the district court to reconsider its remand orders, which were stayed, in light of the court of appeals view that the respiratory

injury claims before the district court are preempted by the Act.938 So the court

of appeals was able to effectively reverse orders it did not have jurisdiction to review.939

 930. In re World Trade Ctr. Disaster Site Litig., 270 F. Supp. 2d 357, 363 (S.D.N.Y. 2003).

931. 49 U.S.C. § 40101 note, Pub. L. No. 107-42 § 408(b)(3), 115 Stat. 230, 241 (2001).

932. In re World Trade Ctr., 270 F. Supp. 2d at 361, 380 85.

Judge Hellerstein previously remanded two cleanup cases that were never consolidated with

the other September 11 damages cases described here. Spagnuolo v. Port Auth. of N.Y. & N.J., 245 F. Supp. 2d 519 (S.D.N.Y. 2003) (remanding Spagnuolo v. Port Auth. of N.Y. & N.J., No. 1:02-cv-6360 (S.D.N.Y. Aug. 9, 2002)); Graybill v. City of New York, 247 F. Supp. 2d 345

(S.D.N.Y. 2002) (remanding Graybill v. City of New York, No. 1:02-cv-684 (S.D.N.Y. Jan. 28, 2002)); see In re World Trade Ctr., 270 F. Supp. 2d at 365.

933. In re World Trade Ctr., 270 F. Supp. 2d at 361, 380 85.

934. Id. at 380 81.

935. In re WTC Disaster Site, 414 F.3d 352, 357, 371, 381 (2d Cir. 2005); see 28 U.S.C. §

1447(d) ( An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it 

was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise. );

see also id. § 1443 (providing for removal of certain civil rights cases).

936. In re WTC Disaster Site, 414 F.3d at 357, 371 81.

937. Id. at 380 81 ( we have noted our agreement with cross-appellants contention that there

was no appropriate basis for the district court s conclusion that their claims should be retained

while those of plaintiffs who asserted claims of respiratory injury suffered at sites other than the

World Trade Center site or after Sept. 29, 2001, were to be remanded. ); see Robert D. McFadden, 

Medical Claims from 9/11 Are Assigned to a Single Court, N.Y. Times, July 18, 2005, at B7.

938. In re WTC Disaster Site, 414 F.3d at 381.

939. See In re World Trade Ctr. Disaster Site Litig., 456 F. Supp. 2d 520, 539 (S.D.N.Y. 2006).
110 National Security Case Management Studies (11/14/2011)

By March of 2005, more than 1,000 civil cases against defendants other than

the terrorists and their supporters claimed damages related to the September 11, 2001, attacks. On March 10, the court created a third master docket case for complaints alleging property damage as a result of the terrorist attacks, calling the new 

consolidation In re September 11 Property Damage and Business Loss Litigation.940 The court created a fourth master docket case called In re World Trade

Center Lower Manhattan Disaster Site Litigation on August 9 for claimed injuries 

outside the immediate World Trade Center area.941

In time, many thousand cases were filed in this litigation. After many cases alleging both injuries at the World Trade Center and outside the immediate World

Trade Center area were filed, the court created, on March 28, 2007, a fifth master

docket case for these straddlers, called In re Combined World Trade Center and 

Lower Manhattan Disaster Site Litigation (Straddler Plaintiffs).942

By July 2007, of the 95 actions included in the original master docket, 53 had

settled and one was dismissed.943 Judge Hellerstein limited attorney fees, at least

among those cases settling during early phases, to 15% of settlement.944 To facilitate settlements among the remaining cases, Judge Hellerstein selected six representative cases and ordered that they be tried for damages only, with liability to be 

determined later if the cases did not settle.945 Judge Hellerstein believed that this

 Judge Hellerstein subsequently relied on the court of appeals dictum to deny motions to remand later-removed cases. In re World Trade Ctr. Disaster Site Litig., 467 F. Supp. 2d 372

(S.D.N.Y. 2006).

940. Order, In re Sept. 11 Prop. Dam. and Bus. Loss Litig., No. 1:21-mc-101 (S.D.N.Y. Mar. 14, 2005); see Docket Sheet, id. (Mar. 21, 2005); see also In re Sept. 11 Litig., 236 F.R.D. 164, 167 n.1, 168 n.3 (S.D.N.Y. 2006).

On March 14, 2007, the U.S. Court of Appeals for the Fourth Circuit ruled that a different district court hearing the case of United States v. Moussaoui, see supra, Twentieth Hijacker, did

not have the power to grant the plaintiffs in these cases access to discovery produced to a criminal

defendant in the other court. United States v. Moussaoui, 483 F.3d 220 (4th Cir. 2007).

On December 11, 2008, Judge Hellerstein ruled that insurance recovery for loss of the World

Trade Center towers would be fair market value at the time of destruction rather than replacement

value. In re Sept. 11th Litig., 590 F. Supp. 2d 535 (S.D.N.Y. 2008).

941. Case Management Order, In re World Trade Ctr. Disaster Site Litig., No. 1:21-mc-100 

(S.D.N.Y. Aug. 8, 2005); see First Amended Master Complaint, In re World Trade Ctr. Lower

Manhattan Disaster Site Litig., No. 1:21-mc-102 (S.D.N.Y. Apr. 18, 2008); Master Complaint, id.

(June 11, 2007); Docket Sheet, id. (Aug. 9, 2005); see also In re Sept. 11 Litig., 236 F.R.D. at 168

n.3.

942. Case Management Order, In re Combined World Trade Ctr. & Lower Manhattan Disaster

Site Litig., No. 1:21-mc-103 (S.D.N.Y. Mar. 28, 2007); see Docket Sheet, id. (Mar. 28, 2007).

943. In re Sept. 11 Litig., 494 F. Supp. 2d 232, 236 (S.D.N.Y. 2007); see Hartocollis, supra

note 902. 944. E.g., Order Concerning Settlement, In re Sept. 11 Litig., No. 1:21-mc-97 (S.D.N.Y. Aug. 9, 2007), available at 2007 WL 2298352; Order Concerning Settlement, In re Sept. 11 Litig., No. 1:21-mc-97 (S.D.N.Y. June 29, 2007); In re Sept. 11 Litig., 567 F. Supp. 2d 611, 615 (S.D.N.Y. 2008); Interview with Hon. Alvin K. Hellerstein, June 25, 2007.

945. Opinion, In re Sept. 11 Litig., No. 1:21-mc-97 (S.D.N.Y. July 5, 2007), available at 2007 

WL 1965559; Order, id. (July 2, 2007); In re Sept. 11 Litig., 600 F. Supp. 2d 549, 554 (S.D.N.Y.
National Security Case Management Studies (11/14/2011) 111

would help the plaintiffs and the defendants in all of the remaining cases assess

the values of the claims.946 All six cases settled before damages trials were

held.947

By March 19, 2008, so many of the original actions had settled that Judge

Hellerstein closed the original master docket consolidation, In re September 11

Litigation, and transferred remaining cases to the master docket consolidation for

property damage cases, In re September 11 Property Damage and Business Loss

Litigation.948

A law firm representing four of the last remaining plaintiffs among the original wrongful death actions modest-wage earners at the Pentagon negotiated 

settlements totaling $28.5 million, averaging much more than previous settlements, and negotiated a fee with each plaintiff of 25%.949 As part of his policy to

prevent early settlers from leveraging recoveries against later settlers and vice 

versa, Judge Hellerstein disapproved these settlements as excessive.950 The judge 

also disapproved the firm s fee as out of line with others in the litigation.951 The

litigants then accepted the assistance of the mediator and agreed to settlements

that were consistent with previous settlements. They also agreed to a 15% contingency fee. 952

By the end of 2008, only three of the original 95 wrongful death and personal

injury cases remained unsettled,953 but there remained approximately 10,000 cases 

 2009) ( I determined that the problems of discovery delay arose in connection with issues of liability, not damages. ); In re Sept. 11 Litig., 567 F. Supp. 2d at 616.

946. Opinion at 4, In re Sept. 11 Litig., No. 1:21-mc-97 (S.D.N.Y. July 5, 2007), available at

2007 WL 1965559; Interview with Hon. Alvin K. Hellerstein, June 25, 2007; see Hartocollis, supra note 902 (reporting, The plaintiffs acknowledge that the biggest difference between the two

sides is over the value of pain and suffering. ). 947. In re Sept. 11 Litig., 600 F. Supp. 2d at 554 ( The experiment was successful. After some

discovery, and without the need of any trials, all six cases settled and more followed. ); In re Sept. 

11 Litig., 567 F. Supp. 2d at 617; Settlement Order, Wilson v. American Airlines, No. 1:03-cv- 6968 (S.D.N.Y. Nov. 1, 2007); Settlement Order, Shontere v. AMR Corp., No. 1:03-cv-6966 

(S.D.N.Y. Nov. 1, 2007); Settlement Order, Ambrose v. American Airlines, No. 1:02-cv-7150 

(S.D.N.Y. Nov. 1, 2007); Settlement Order, Driscoll v. Argenbright Security, Inc., No. 1:02-cv- 7912 (S.D.N.Y. Sept. 17, 2007); Settlement Order, Carstanjen v. UAL Corp., No. 1:02-cv-7153 

(S.D.N.Y. Sept. 17, 2007); Settlement Order, O Hare v. United Airlines, No. 1:02-cv-456 

(S.D.N.Y. Sept. 17, 2007).

948. Order, In re Sept. 11 Prop. Dam. and Bus. Loss Litig., No. 1:21-mc-101 (S.D.N.Y. Mar. 18, 2008); Order, In re Sept. 11 Litig., No. 1:21-mc-97 (S.D.N.Y Mar. 18, 2008).

949. In re Sept. 11 Litig., 567 F. Supp. 2d at 618; see In re Sept. 11 Litig., 600 F. Supp. 2d at

554.

950. In re Sept. 11 Litig., 567 F. Supp. 2d at 621; see In re Sept. 11 Litig., 600 F. Supp. 2d at

554; New Ruling Sought in 9/11 Settlements, Wash. Post, Aug. 7, 2008, at A5.

951. In re Sept. 11 Litig., 567 F. Supp. 2d at 618; see In re Sept. 11 Litig., 600 F. Supp. 2d at

554.

952. In re Sept. 11 Litig., 600 F. Supp. 2d at 554.

953. In re Sept. 11 Litig., 723 F. Supp. 534, 539 (S.D.N.Y. 2010); In re Sept. 11 Litig., 621 F. Supp. 2d 131, 140 (S.D.N.Y. 2009); In re Sept. 11 Litig., 600 F. Supp. 2d at 553 54; In re World 

Trade Ctr. Disaster Site Litig., 598 F. Supp. 2d 498, 504 n.9 (S.D.N.Y. 2009); In re Sept. 11th

Litig., 590 F. Supp. 2d 535, 540 (S.D.N.Y. 2008).
112 National Security Case Management Studies (11/14/2011)

by rescue and cleanup workers for respiratory and other injuries.954 In addition to

delays resulting from interlocutory appeals, [t]he inability of counsel to style

useful pleadings, or to proceed with discovery relevant to the immunity defenses

without excessive and wasteful disputes, made it necessary to develop an alternative manner of proceeding. 955

To help the parties assess the values of the claims, Judge Hellerstein again intiated a process for test trials: 30 cases, mostly representing the most severe cases

but also representing other cases, would proceed through discovery for trial in 

May 2010.956 On March 12, however, it was reported that a global settlement had

been reached.957 Judge Hellerstein determined that the settlement was not a good

enough deal for the individual plaintiffs,958 but he approved a revised settlement 

that gave more money to workers and less to their lawyers.959

On November 19, an allocation neutral reported to the court that eight plaintiffs more than a required 95% had accepted the settlement.960 Judge Hellerstein

appointed a special counsel to help the several hundred other plaintiffs decide

whether or not to join the settlement at a later time.961

A month later, Congress passed the James Zadroga 9/11 Health and Compensation Act,962 which provided rescue and cleanup workers additional funds for

 954. In re World Trade Ctr. Disaster Site Litig., 598 F. Supp. 2d at 499 n.1, 501, 503.

955. Id. at 501.

956. Id. at 504; see Mireya Navarro, Ef ort to Settle Sept. 11 Lawsuits, N.Y. Times, Feb. 5, 2010, at A1 ( Several hundred lawyers are working on the cases, and the court documents run to

tens of millions of pages. ). The case management order called for division of the cases into five groups, depending upon

when the case was filed, and the selection of six cases from each group. In re World Trade Ctr. Disaster Site Litig., 598 F. Supp. 2d at 503 04. From the 200 cases in each group with the most

severe injuries, the two sides of the litigation would each select two cases. Id. at 504. Special masters would identify an additional 25 representative cases, and Judge Hellerstein would select two

cases from among the 196 severe cases not selected by the parties and the 25 other representative

cases. Id.

957. Mireya Navarro, Deal Is Reached on Health Costs of 9/11 Workers, N.Y. Times, Mar. 12, 

2010, at A1.

958. See Mireya Navarro, Empathetic Judge in 9/11 Suits Seen by Some as Interfering, N.Y. Times, May 3, 2010, at A16; Mireya Navarro, Judge Rejects Deal on Health Claims of Workers at 

Ground Zero, N.Y. Times, Mar. 20, 2010, at A12. 959. Order, In re World Trade Ctr. Disaster Site Litig., No. 1:21-mc-100 (S.D.N.Y. June 10, 2010); see Judge Approves 9/11 Settlement, Wash. Post, June 11, 2010, at A3.

Appeals were withdrawn. Stipulation, In re World Trade Ctr., No. 10-3172 (2d Cir. Oct. 26, 2010) (cross-appeal by some plaintiffs); Stipulation, Quinones v. City of New York, No. 10-2765 

(2d Cir. Oct. 26, 2010) (defendants appeal). 960. Letter, In re World Trade Ctr. Disaster Site Litig., No. 1:21-mc-100 (S.D.N.Y. Nov. 19, 2010) (reporting agreements by 10,043 out of 10,563 plaintiffs); see Mireya Navarro, Sept. 11

Workers Agree to Settle Health Lawsuits, N.Y. Times, Nov. 20, 2010, at A1.

961. Order, In re World Trade Ctr. Disaster Site Litig., No. 1:21-mc-100 (S.D.N.Y. Nov. 24, 2010) (noting that plaintiffs not accepting the settlement included plaintiffs who could not be

reached, plaintiffs who refused communication from their attorneys, plaintiffs who had withdrawn

from the litigation but still remained on the docket, and plaintiffs still on the fence); see In re

World Trade Ctr. Disaster Site Litig., 762 F. Supp. 2d 631 (S.D.N.Y. 2010).

962. Pub. L. No. 111-347, 124 Stat. 3623 (2011).
National Security Case Management Studies (11/14/2011) 113

health monitoring and treatment and which reopened the September 11th Victim

Compensation Fund to provide compensation for employment and other economic losses.963

On July 1, 2010, Judge Hellerstein approved settlements in property damage

actions over the objection of non-settling plaintiffs affiliated with the long-term 

lessee of the World Trade Center, Larry Silverstein,964and the court of appeals

affirmed.965 In 2011, however, Judge Hellerstein dismissed an action by Consolidated Edison, whose power station was destroyed when Building 7 of the World

Trade Center collapsed, apparently as a result of hot debris from the twin towers.966 Judge Hellerstein concluded that Building 7 s developer and principal tenant, whose diesel-fueled backup generators contributed to the fires that destroyed 

Building 7, were not liable for the improbable chain of events that resulted in

Building 7 s destruction.967

The one remaining wrongful death action was scheduled to go to trial in November 2011.968 On September 16, the plaintiffs filed 127 exhibits in opposition

to a motion for summary judgment.969 Three days later, the plaintiffs filed a notice 

that the case had settled.970 It was reported that the September 16 filing made the

public case that the plaintiffs were seeking to make.971

 963. See Raymond Hernandez, Senate Passes 9/11 Health Bill as Republicans Back Down, N.Y. Times, Dec. 23, 2010, at A1; see also Sheryl Gay Stolberg, Obama Signs 9/11 Health Care

Bill, N.Y. Times, Jan. 3, 2011, at A17.

964. In re Sept. 11 Litig., 723 F. Supp. 534 (S.D.N.Y. 2010); see In re Sept. 11 Litig., 760 F. Supp. 2d 433, 437 (S.D.N.Y. 2011).

965. In re Sept. 11 Prop. Damage Litig., 650 F.3d 145 (2d Cir. 2011).

966. Opinion, Aegis Ins. Servs., Inc. v. 7 World Trade Co., No. 1:04-cv-7272 (S.D.N.Y. Sept. 23, 2011), available at 2011 WL 4549391. 967. Id.

968. In re Sept. 11 Litig., ___ F. Supp. 2d ___, ___, 2011 WL 4089596 (S.D.N.Y. Sept. 7, 2011) (p.1 of filed opinion) (action against United Airlines and Huntleigh USA Corporation by the 

mother of Mark Bavis, who died on United Flight 175, which departed Boston for Los Angeles

and struck World Trade Center 2); Order, Bavis v. UAL Corp., No. 1:02-cv-7154 (S.D.N.Y. June

14, 2011); see In re Sept. 11 Litig., 760 F. Supp. 2d at 436 ( Ninety-four of the ninety-five cases

have settled. ); see also Benjamin Weiser, A 9/11 Judge Sets a Timer for a Month, N.Y. Times, Apr. 28, 2011, at A1.

On August 11, 2010, two other cases settled. Stipulation, Low v. U.S. Airways, Inc., No. 1:03- cv-7040 (S.D.N.Y. Aug. 11, 2010); Stipulation, Keating v. American Airlines, Inc., No. 1:02-cv- 7156 (S.D.N.Y. Aug. 11, 2010); see In re Sept. 11 Litig., 723 F. Supp. at 539 n.6 (noting pending 

motions for approval of settlements).

969. Declaration, Bavis, No. 1:02-cv-7154 (S.D.N.Y. Sept. 16, 2011); see Benjamin Weiser, Filing Details Shortcomings of Airport Screeners on 9/11, N.Y. Times, Sept. 17, 2011, at A15.

970. Stipulation, Bavis, No. 1:02-cv-7154 (S.D.N.Y. Sept. 19, 2011); see Benjamin Weiser, Last 9/11 Wrongful-Death Suit Is Settled, as Family and Airline Reach Terms, N.Y. Times, Sept. 20, 2011, at A21.

971. Weiser, supra note 970 (focusing on inadequate airport security as the reason for the disaster, according to the plaintiffs).
114 National Security Case Management Studies (11/14/2011)

Challenge: Service of Process on International Terrorists

Plaintiffs in the actions against terrorists were faced with unusual service difficulties. One process server was murdered trying to serve the complaint in Saudi Arabia.972 Judge Casey resolved insurance companies motion to effectuate service of

process on alleged terrorists as follows.973

The plaintiffs proposed that service on incarcerated leaders of terrorist organizations would be effective service on the organizations.974 The court agreed.975

The plaintiffs proposed that the government serve process on defendants in

their custody.976 The government agreed to facilitate service on defendants it had

publicly acknowledged holding, but objected to serving defendants it had not publicly acknowledged holding.977 The court agreed that the government s service on

defendants in its custody would be effective, but declined to order the government 

to facilitate service, and agreed that the government need not disclose whether it

had in custody those defendants it had not publicly acknowledged holding.978 The 

court ruled that service by publication would be effective for those individuals

whom the government did not serve.979

The plaintiffs proposed that the court order foreign justice ministries to accept

service on behalf of defendants in their custody.980 The court ruled that this would 

be effective service, and agreed to request that the foreign ministries accept service, but declined to order them to do so.981

Challenge: Classified Evidence

In the actions against alleged supporters of the terrorists, plaintiffs supported a

discovery motion with documents that the plaintiffs knew were sensitive and suspected might be classified.982 It was reported that the documents had been anonymously leaked to the plaintiffs attorneys.983 The attorneys delivered the documents to the court, sent copies to the U.S. Attorney, and provided defendants only 

with a copy of the transmittal letter.984 The government determined that at least

some of the documents were classified, so the court s copies were securely 

 972. In re Terrorist Attacks on Sept. 11, 2001, 718 F. Supp. 2d 456, 490 (S.D.N.Y. 2010); Interview with Owen Smith, law clerk to Hon. Richard Conway Casey, May 17, 2007.

973. In re Terrorist Attacks on Sept. 11, 2001, No. 1:03-md-1570, 2004 WL 1348996

(S.D.N.Y. June 14, 2004).

974. Id. at *2.

975. Id.

976. Id.

977. Id.

978. Id. at *1 *3. The government acknowledged custody of 10 of the 23 defendants who the

plaintiffs claimed were in the government s custody. Id. at *2.

979. Id. at *2 *3.

980. Id. at *3.

981. Id. at *3 & n.2.

982. Discovery Opinion, supra note 852, at 18.

983. Eric Lichtblau, Documents Back Saudi Link to Extremists, But May Never Be Used in

9/11 Suit, N.Y. Times, June 24, 2009, at A11; Discovery Opinion, supra note 852, at 19.

984. Discovery Opinion, supra note 852, at 18.
National Security Case Management Studies (11/14/2011) 115

stored.985 The plaintiffs were required to surrender their copies.986 Judge Daniels

denied the plaintiffs request that he review the documents.987

Challenge: Controlled Unclassified Information

Classified information is information protected by the government for national

security reasons; information protected by the government for other reasons is

known as controlled unclassified information. 988

Litigation that claimed inadequate security required discovery concerning security procedures. The government decided that the Transportation Security Administration (TSA) should screen discovery for sensitive security information

(SSI), which is controlled unclassified information related to transportation security.989 This slowed substantially the progress of the litigation.990

In late 2003, plaintiffs propounded interrogatories and document requests

concerning security measures in effect when the terrorists boarded the planes.991 It 

took the TSA two years to screen the discovery.992 The plaintiffs noticed depositions of the defendants for April 2006.993 TSA refused to attend the depositions, but instructed the defendants to object to any questions that called for SSI and

refuse to answer them.994 The defendants argued that it was in their interest to answer the plaintiffs questions, and they objected to being held responsible for pro-

 985. Id. at 18 19.

986. Id. at 19.

987. Order, In re Terrorist Attacks on Sept. 11, 2001, No. 1:03-md-1570 (S.D.N.Y. July 16, 2009); see Discovery Opinion, supra note 852, at 19; Lichtblau, supra note 983 ( The Justice Department had the lawyers copies destroyed and now wants to prevent a judge from even looking

at the material. ). 988. Exec. Order No. 13,556, 75 Fed. Reg. 68,675 (Nov. 9, 2010); Report and Recommendations of the Presidential Task Force on Controlled Unclassified Information (Aug. 25, 2009), available at http://www.justice.gov/ag/cui_task_force_rpt.pdf; see Too Secret?, supra note 190. 989. In re Sept. 11 Litig., 600 F. Supp. 2d 549, 552 (S.D.N.Y. 2009).

Regulations provide the following definition:

SSI is information obtained or developed in the conduct of security activities, including re- search and development, the disclosure of which the TSA has determined would

(1) Constitute an unwarranted invasion of privacy (including, but not limited to, infor- mation contained in any personnel, medical, or similar file);

(2) Reveal trade secrets or privileged or confidential information obtained from any per- son; or

(3) Be detrimental to the security of transportation.

49 C.F.R. § 1520.5(a); see In re Sept. 11 Litig., 567 F. Supp. 2d 611, 615 (S.D.N.Y. 2008); In re

Sept. 11 Litig., 236 F.R.D. 164, 169 (S.D.N.Y. 2006).

990. In re Sept. 11 Litig., 567 F. Supp. 2d at 616; Interview with Hon. Alvin K. Hellerstein, June 25, 2007. The TSA has reviewed over a million pages of documents and 121 deposition

transcripts before allowing their release, in original or redacted form. As a result, discovery has

become extended, and a number of judicial interventions were necessary to avoid impasse. In re

Sept. 11 Litig., 621 F. Supp. 2d 131, 142 (S.D.N.Y. 2009) (citations omitted).

991. In re Sept. 11 Litig., 236 F.R.D. at 167.

992. Id.

993. Id. at 169.

994. Id. at 165 66, 169.
116 National Security Case Management Studies (11/14/2011)

tecting the government s SSI.995 Judge Hellerstein was sympathetic to the defendants position. Given the uncertainty of what is properly classifiable as SSI, and TSA s own changes of

attitudes regarding prior classifications, the task of objecting and instructing is beyond

the jurisdictional competence of defense counsel, particularly in light of the client s interests in fully responding to proper questions. Thus, the only lawyers who have the obligation to act as enforcers of TSA s policies are TSA s own lawyers, and it is they, and no

one else, who have the responsibility to object and to instruct whenever they, in good

faith, believe that SSI may be implicated in a question or an answer. Their attendance at

depositions is critical. That is the very reason that they moved to intervene in the case, and the reason that I granted TSA s motion to intervene.996

Judge Hellerstein ruled that the depositions be conducted with only cleared

counsel and witnesses present, that TSA be granted 30 days to redact the transcript, and that the original be filed under seal.997 Judge Hellerstein limited TSA s

asserted right to raise objections during the course of depositions, and instruct

witnesses not to answer, where the questions posed to witnesses, and the answers

elicited therefrom, might implicate information relevant to the case but potentially 

or actually SSI. 998 Judge Hellerstein determined that TSA s position will thwart

the very purpose of conducting depositions, as witnesses, fearful that any answer

provided might contain information subject to ultimate designation as SSI, would

be unable to engage in the dynamic process of question and answer so essential to

developing and defending a negligence action. 999 So Judge Hellerstein ordered

that witnesses answer all questions but those that clearly call for SSI; TSA counsel could make objections on the record.1000

Judge Hellerstein determined that the parties, especially the plaintiffs, wanted

to identify too many attorneys to participate in the depositions. Two problems

Judge Hellerstein identified as resulting from the participation of too many attorneys were (1) a potential delay resulting from the TSA having to clear all of them

and (2) a potential compromising of national security resulting from so many attorneys participating.1001 So Judge Hellerstein instructed the parties to identify a

small number of attorneys who could represent the interests of the various party

categories.1002 The plaintiffs attorneys were unwilling to be represented by other

parties attorneys, but the government relaxed its insistance that deposition participation be limited, so depositions finally commenced in September 2006.1003

In October 2007, plaintiffs moved to set aside discovery confidentiality designations so that all discovery other than SSI could be made public.1004 Plaintiffs 

 995. Id. at 166, 169.

996. Id. at 173.

997. Id. at 173 74.

998. In re Sept. 11 Litig., 431 F. Supp. 2d 405, 409 (S.D.N.Y. 2006).

999. Id. at 410.

1000. Id.

1001. Order at 1, In re Sept. 11 Litig., No. 1:21-mc-97 (S.D.N.Y. June 5, 2006).

1002. Id. at 1 2.

1003. Interview with Hon. Alvin K. Hellerstein, June 25, 2007.

1004. Opinion at 1 3, In re Sept. 11 Prop. Dam. and Bus. Loss Litig., No. 1:21-mc-101 

(S.D.N.Y. July 30, 2009).
National Security Case Management Studies (11/14/2011) 117

subsequently withdrew this motion, but they renewed it on January 14, 2009.1005

On July 30, Judge Hellerstein denied the motion, ruling that the confidentiality

protective order required that objections to confidentiality designations be made

within 120 days of the designations.1006

For the single wrongful death action against the airlines not to settle, Judge

Hellerstein issued a protective order governing the use of SSI at trial.1007 TSA

has determined, pursuant to its discretionary authority under 49 C.F.R. § 1520.15(e), to grant Plaintiff, Defendants and the members of the jury limited

and conditional access to certain SSI, subject to the terms and conditions set forth 

in this Order. 1008 Judge Hellerstein called for use of the silent witness rule to

present SSI to the jury without presenting it to the public.1009 With this rule, witnesses testify about secret matters in code so that the jury and the participants

know the secrets in the testimony but the public does not.1010

Challenge: Witness Security

Nine years after they filed their original complaint in the District of Columbia, some plaintiffs introduced as evidence supporting a default judgment against Iran

videotaped testimony from three defectors from the Iranian government.1011 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.1012

 1005. Id. at 1.

1006. Id. at 1, 4, 9.

1007. Protective Order, Bavis v. UAL Corp., No. 1:02-cv-7154 (S.D.N.Y. June 28, 2011).

1008. Id. at 2.

1009. Id. at 15.

1010. 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); see infra, Giving State Secrets to Lobbyists. 1011. Default Judgment Brief at 12, Havlish v. Bin Laden, No. 1:03-cv-9848 (S.D.N.Y. May

19, 2011); see Benjamin Weiser & Scott Shane, Court Filings Assert Iran Had Link to 9/11 Attacks, N.Y. Times, May 20, 2011, at A6.

1012. Order, Havlish, No. 1:03-cv-9848 (S.D.N.Y. July 5, 2011); see Weiser & Shane, supra

note 1011.
118 National Security Case Management Studies (11/14/2011)

Guantánamo Bay

In re Guantanamo Bay Detainee Litigation (Thomas F. 

Hogan, D.D.C.) and Related Actions (Louis F. Oberdorfer, 

Joyce Hens Green, Royce C. Lamberth, Paul L. Friedman, 

Gladys Kessler, Emmet G. Sullivan, Ricardo M. Urbina, 

James Robertson, Colleen Kollar-Kotelly, Henry H. 

Kennedy, Jr., Richard W. Roberts, Ellen Segal Huvelle, 

Reggie B. Walton, John D. Bates, Richard J. Leon, 

Rosemary M. Collyer, and Alan Kay, D.D.C.)

Habeas Corpus Rights

Jurisdiction Over Guantánamo Bay Detainees

On September 25, 2001, Australian David Hicks called his parents in Salisbury, Australia, a suburb of Adelaide, and told them that he had joined the Taliban.1013

Hicks, a high-school dropout described as a drifter, had converted to Islam and

adopted the name Mohammed Dawood.1014 Apparently he joined the Taliban in

1999.1015 The Northern Alliance captured him near Kabul, Afghanistan, on December 9, 2001, and turned him over to the United States on December 17.1016 He 

was transferred to the USS Peleliu, the same ship that held John Walker Lindh at

the time,1017 and then to the Naval Base at Guantánamo Bay in Juanuary 2002.1018

Shafiq Rasul and Asif Iqbal grew up together in Tipton, England, a town near

Birmingham.1019 They also were described as drifters who converted to Islam.1020

They also were captured in Afghanistan and transferred to Guantánamo Bay.1021

 1013. See Douglas Frantz, Alliance Captures Australian Man Fighting for the Taliban, N.Y. Times, Dec. 13, 2001, at B3; Richard Leiby, Taliban from Down Under, Wash. Post, Mar. 10, 2002, at F1.

1014. See Frantz, supra note 1013; Leiby, supra note 1013. 1015. See John Shaw, Australians Debate Fate of Fighter Held by U.S., N.Y. Times, Dec. 30, 2001, at 8.

1016. Al Odah v. United States, 321 F.3d 1134, 1137 (D.C. Cir. 2003); Rasul v. Bush, 215 F. Supp. 2d 55, 60 (D.D.C. 2002); see Frantz, supra note 1013; Shaw, supra note 1015. 1017. See Steve Vogel, 5 Detainees Held on U.S. Ship, Wash. Post, Dec. 18, 2001, at A15;

Steve Vogel & Molly Moore, U.S. Warns Against Helping Bin Laden, Wash. Post, Dec. 19, 2001, at A1; see also supra, American Taliban. 1018. See Mark Landler & Katharine Q. Seelye, U.N. Pleads for Afghan Aid While U.S. Jets

Raid Compound, N.Y. Times, Jan. 15, 2002, at A12; Leiby, supra note 1013; see also Joseph 

Margulies, Guantánamo and the Abuse of Presidential Power 63 (2006) ( On January 6, [2002,]

Brigadier General Michael Lehnert received an urgent order from his boss, Defense Secretary Donald Rumsfeld. He was told to build a prison. He had ninety-six hours. . . . Lehnert finished the job 

with nine hours to spare. ). 1019. See Warren Hoge, Hometown of British Prisoners Known for Tranquil Diversity, N.Y. Times, Jan. 29, 2002, at A14.

1020. See Amy Waldman, How in a Little English Town Jihad Found Young Converts, N.Y. Times, Apr. 24, 2001, at A1.
National Security Case Management Studies (11/14/2011) 119

On January 11, 2002, a cargo plane holding 20 detainees from Afghanistan landed at

the U.S. naval base in Guantánamo Bay, Cuba, the first of many detainee transfers that

eventually swelled the camp population at its height to over 600. Hooded and wearing

earmuffs, detainees felt a blast of hot, humid air as they were escorted off the plane by

U.S. soldiers, hustled onto a bus, and transported across the water by a ferry to a large

building, part of the detention center located on the southeast corner of the 45-square- mile base. Once inside, detainees encountered a beehive of activity similar to their

processing at Kandahar and Bagram. Camp personnel removed their outer clothing and

earmuffs, lowered their goggles, and cut off their clothes.1022 On February 19, 2002, parents of Hicks, Rasul, and Iqbal filed a habeas corpus petition on their behalf in the U.S. District Court for the District of Columbia, and the court assigned the case to Judge Colleen Kollar-Kotelly.1023 This was the

first habeas action filed on behalf of named Guantánamo Bay detainees, and it

was filed at a time when there were approximately 300.1024 Six days later, Judge

Kollar-Kotelly ordered the government to file a return.1025

On May 1, fathers and brothers of 11 Kuwaitis held at Guantánamo Bay filed

a complaint against the government seeking the detainees access to family, counsel, and the courts.1026 An amended complaint on July 8 added a twelfth plain-

 1021. Rasul, 215 F. Supp. 2d at 60; see Waldman, supra note 1020. 1022. Laurel E. Fletcher & Eric Stover, The Guantánamo Effect 41 (2009).

1023. Docket Sheet, Rasul v. Bush, No. 1:02-cv-299 (D.D.C. Feb. 19, 2002); Rasul v. Bush, 542 U.S. 466, 472 (2004); Al Odah v. United States, 321 F.3d 1134, 1136 37 (D.C. Cir. 2003);

Rasul, 215 F. Supp. 2d at 57; see Boumediene v. Bush, 553 U.S. 723, 734 (2008); see also John 

Mintz, Detention of 3 Men in Cuba Disputed, Wash. Post, Feb. 20, 2002, at A10; Michael Ratner, The First Habeas Cases: Rasul v. Bush, in The Guantánamo Lawyers 32, 32 (Mark P. Denbeaux

& Jonathan Hafetz eds., 2009); Michael Ratner & Ellen Ray, Guantánamo: What the World

Should Know 7 8, 80 (2004); Philip Shenon, Suit to Be Filed on Behalf of Three Detainees in Cuba, N.Y. Times, Feb. 19, 2002, at A11; Wax, supra note 91, at 25; Clive Stafford Smith, Eight

O Clock Ferry to the Windward Side 23 (2007). 1024. See Shenon, supra note 1023; see also Michael Ratner, Guantánamo: The Ninth Circle

of Hell, in The Guantánamo Lawyers, supra note 1023, at 15 (describing the decision by the Center for Constitutional Rights to participate in the case).

1025. Order, Rasul, No. 1:02-cv-299 (D.D.C. Feb. 25, 2002).

1026. Rasul, 542 U.S. at 472; Al Odah, 321 F.3d at 1136; Rasul, 215 F. Supp. 2d at 58 & n.3;

Docket Sheet, Al-Odah v. United States, No. 1:02-cv-828 (D.D.C. May 1, 2002) [hereinafter Al- Odah Docket Sheet]; see Neil MacFarquhar, Kuwaitis Press U.S. Over 12 Held at Guantánamo, N.Y. Times, June 26, 2002, at A18; John Mintz, Detainees Say They Were Charity Workers, Wash. Post, May 26, 2002, at A12 (reporting that legal expenses would be paid by the Kuwaiti

government and donated by the law firm to charity); Ratner & Ray, supra note 1023, at 8; Wax, supra note 91, at 25 26 (reporting that the lawyers in this case were retained, unlike the vast majority of Guantánamo Bay habeas attorneys, who worked pro bono).

After receiving a letter from his son via the International Committee of the Red Cross, [Faw- zi] al Odah s father, an American-trained pilot who had fought with the Kuwaiti Air Force in

the First Gulf War, tracked down the families of eleven other Kuwaiti prisoners and hired a white-shoe American law firm to represent them.

Jonathan Mahler, The Challenge 66 (2008).

The law firm styled the filing as a complaint instead of a habeas corpus petition [i]n an attempt to appear to the court more modest and less like [they] were demainding release. Kristine

A. Huskey, The First Habeas Cases: Al Odah v. United States, in The Guantánamo Lawyers, su-
120 National Security Case Management Studies (11/14/2011)

tiff.1027 The court assigned the case to Judge Kollar-Kotelly on the plaintiffs representation that it was related to the habeas petition by Hicks, Rasul, and Iqbal.1028 The plaintiffs claimed that they were were in Afghanistan for charitable

purposes and they were captured by bounty hunters.1029 Judge Kollar-Kotelly regarded the complaint as a habeas petition.1030

Judge Kollar-Kotelly determined, on July 30, that United States courts did not

have jurisdiction over the habeas petitions, because the petitioners were aliens

held outside sovereign territory.1031 The following week, Judge Kollar-Kotelly 

also dismissed a habeas petition filed on June 10 by the wife of Mamdouh Habib, another Australian held at Guantánamo Bay, which was assigned to her as related

to the other two cases.1032 The court of appeals agreed that the court lacked jurisdiction over these three cases.1033

On June 28, 2004, the Supreme Court held, in Rasul v. Bush, that federal

courts did have jurisdiction over habeas petitions by Guantánamo Bay detainees, because a 1903 lease and a 1934 treaty gave the United States indefinite complete jurisdiction and control over its Naval Base in Cuba and the courts unquestionably had jurisdiction over the petitioners custodians.1034

 pra note 1023, at 29, 30. The firm named the United States as the lead defendant so as not to offend partners who did not want the firm to sue the President. Id.

1027. Rasul, 215 F. Supp. 2d at 58 n.3; Al-Odah Docket Sheet, supra note 1026. 1028. Rasul, 215 F. Supp. 2d at 58; Al-Odah Docket Sheet, supra note 1026; see Huskey, supra note 1026, at 30.

1029. Rasul, 215 F. Supp. 2d at 60 61; see Mintz, supra note 1026. 1030. Rasul, 215 F. Supp. 2d at 64; see Huskey, supra note 1026, at 30 31.

1031. Rasul, 215 F. Supp. 2d 55, rev d, 542 U.S. 466; see Boumediene v. Bush, 553 U.S. 723, 734 (2008); see Mahler, supra note 1026, at 66 67; Ratner & Ray, supra note 1023, at 80 81; 

Neely Tucker, Judge Denies Detainees in Cuba Access to U.S. Courts, Wash. Post, Aug. 1, 2002, at A10.

1032. Opinion, Habib v. Bush, No. 1:02-cv-1130 (Aug. 8, 2002); see Al Odah v. United States, 321 F.3d 1134, 1137 (D.C. Cir. 2003); see also Dana Priest, Detainee Sent Home to Australia, Wash. Post, Jan. 29, 2005, at A21 (reporting that Habib was born in Egypt and moved to Australia 

when he was 18).

1033. Al Odah, 321 F.3d at 1141 (opinion by Circuit Judge A. Raymond Randolph, joined by

Circuit Judges Merrick B. Garland and Stephen F. Williams), rev d, 542 U.S. 466; Boumediene, 553 U.S. at 734; see Huskey, supra note 1026, at 31; Mahler, supra note 1026, at 67; Ratner &

Ray, supra note 1023, at 81.

1034. Rasul, 542 U.S. at 471, 473, 480, 483 84, 485 (opinion by Justice Stevens, joined by

Justices O Connor, Souter, Ginsburg, and Breyer; Justice Kennedy concurred in the judgment;

Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, dissented); see Boumediene, 553 U.S. at 734; see also Huskey, supra note 1026, at 32; Mahler, supra note 1026, at 122 23; 

Daniel J. Meltzer, Habeas Corpus, Suspension, and Guantánamo: The Boumediene Decision, 2008 Sup. Ct. Rev. 1, 5 6; Kara Simard, Innocent at Guantanamo Bay: Granting Political Asylum 

to Unlawfully Detained Uighur Muslims, 30 Suffolk Transnat l L. Rev. 365, 371 (2007) ( The

United States obtained the lease from an American citizen, Tomas Estrada Palma, who later became the first President of Cuba. ).
National Security Case Management Studies (11/14/2011) 121

While the Supreme Court case was pending, Rasul and Iqbal were returned to

freedom in the United Kingdom.1035 A subsequent suit for damages against the

United States was unsuccessful,1036 but the British government agreed to settle a

damages suit against it.1037 On June 10, Hicks was formally charged in a military

tribunal with joining the Taliban.1038 The government of Australia had agreed the

previous November to such a proceeding for its citizen.1039 Hicks pleaded guilty;

pursuant to a plea agreement, he was sentenced on March 30, 2007, to seven years 

of post-detention imprisonment, with all but nine months suspended, and returned

to Australia in May to serve out the remaining months of his sentence.1040 Hicks 

was released from prison on December 29

1041

and released from supervision on

 1035. Rasul, 542 U.S. at 471 n.1; see Order, Rasul v. Bush, No. 1:02-cv-299 (D.D.C. Aug. 30, 2007) (dismissing habeas petition); see also Margulies, supra note 1018, at 145; John Mintz, U.S. 

Faces Quandary in Freeing Detainees, Wash. Post, Mar. 22, 2004, at A1; British Frees 5 Citizens

Sent Home From U.S. Jail, N.Y. Times, Mar. 11, 2004, at A3.

1036. Rasul v. Myers, 563 F.3d 527, 530 (D.C. Cir. 2009) (finding, among other things, qualified immunity for the defendants because, No reasonable government official would have been

on notice that plaintiffs had any Fifth Amendment or Eighth Amendment rights. ); see Docket 

Sheet, Rasul v. Rumsfeld, No. 1:04-cv-1864 (D.D.C. Oct. 27, 2004); Ex-Guantánamo Inmates

File Suit, N.Y. Times, Oct. 28, 2004, at A10.

A former Guantánamo Bay prison guard found Rasul on Facebook, and the BBC filmed a re- union of the two in December 2009. See Our World: Guantanamo Reunited (BBC television

broadcast May 8, 2010), available at http://www.youtube.com/watch?v=cRhOzWFBES8; Brian

Stelter, Guantánamo Reunion, by Way of BBC, N.Y. Times, Jan. 11, 2010, at B9.

1037. See Rebecca Omonira-Oyekanmi & Peter Finn, Britain Settles with Detainees, Wash. Post, Nov. 17, 2010, at A10 (listing 15 of 16 detainees to receive compensation).

1038. See Bradley Graham, 3 Charges Placed Against Detainee, Wash. Post, June 11, 2004, at

A3; Mahler, supra note 1026, at 66 67; Eric Schmitt & Kate Zernike, U.S. Charges an Australian with Fighting for Taliban, N.Y. Times, June 11, 2004, at A12.

1039. See Neil A. Lewis, U.S. Adds to Detained Australians Rights, N.Y. Times, Nov. 26, 2003, at A22.

As a result of the Australian government s negotiations, Hicks was able to meet with his father

and stepmother at Guantánamo Bay. See Neil A. Lewis, Australian Pleads Not Guilty to Terrorism 

Conspiracy, N.Y. Times, Aug. 26, 2004, at A14.

1040. Transcript at 81, 157, 243 45, United States v. Hicks (U.S. Mil. Comm. Mar. 30, 2007), available at http://www.mc.mil; see Order, Rasul v. Bush, No. 1:02-cv-299 (D.D.C. Aug. 23, 2007); Gordon Cucullu, Inside Gitmo 224 (2009); William Glaberson, Australian to Serve Nine

Months in Terrorism Case, N.Y. Times, Mar. 31, 2007, at A10; Karen Greenberg, The Least

Worst Place: Guantanamo s First 100 Days 220 (2009); Spencer S. Hsu, Guantanamo Detainee

Returns to Australia, Wash. Post, May 21, 2007, at A10; Michael D. Mori, Escape from Guantánamo, in The Guantánamo Lawyers, supra note 1023, at 190, 192; Josh White, Australian to Return Home to Serve Shortened Term, Wash. Post, Mar. 31, 2007, at A12; see also Hafetz, supra

note 502, at 212 ( The deal not only was negotiated without the prosecutors knowledge, but was

the result of a request to Vice President Cheney from Australia s prime minister John Howard, who was facing increasing demands at home to oppose Hicks s prosecution by a military commission. ). 1041. See Raymond Bonner, Australian Terrorism Detainee Leaves Prison, N.Y. Times, Dec. 29, 2007, at A7; Rohan Sullivan, Ex-Guantanamo Inmate Released, Wash. Post, Dec. 29, 2007, at

A14.
122 National Security Case Management Studies (11/14/2011)

December 21, 2008.1042 Habib had been returned to freedom in Australia, without

charges, in January 2005.1043

Coordination Before Judge Green

During the three weeks following the Supreme Court s Rasul decision, eight cases 

on behalf of 32 detainees were filed.1044 The government moved to consolidate

these petitions with the ones already pending before Judge Kollar-Kotelly, but the

judge ruled that the diversity of factual situations among the cases did not make

them suitable for consolidation.1045

By early September, another three cases had been filed on behalf of another

21 detainees.1046 On September 14, the district court s Executive Session decided

that Senior Judge Joyce Hens Green

1047

would preside over preliminary coordination and management of all Guantánamo Bay habeas cases both already and sub-

 1042. See Raymond Bonner, Full Freedom for Former Australian Detainee, N.Y. Times, Dec. 21, 2008, at A12.

1043. See Raymond Bonner, Australian s Long Path in the U.S. Antiterrorism Maze, N.Y. Times, Jan. 29, 2005, at A4; Priest, supra note 1032; see also Margulies, supra note 1018, at 2

(according to Habib s attorney, I had flown with [Habib] from Guantánamo in a plane chartered

by the Australian government, west from Cuba and across the Pacific Ocean, careful not to cross

over into U.S. airspace. I am the only lawyer allowed by the U.S. government to accompany a

prisoner home from the base, a courtesy I cannot explain. ). It was reported that no charges were filed against Habib so that his torture while detained in

Egypt would not become a matter of court review. See Raymond Bonner, Ex-Captive in Guantánamo Makes Run for Office in Australia, N.Y. Times, Mar. 21, 2007, at A12; see also Mori, supra

note 1040. 1044. Docket Sheet, Anam v. Bush, No. 1:04-cv-1194 (D.D.C. July 15, 2004) [hereinafter

Anam Docket Sheet] (15 detainees); Docket Sheet, Boumediene v. Bush, No. 1:04-cv-1166 

(D.D.C. July 12, 2004) [hereinafter Boumediene Docket Sheet] (six detainees); Docket Sheet, Gherebi v. Bush, No. 1:04-cv-1164 (D.D.C. July 12, 2004) [hereinafter D.D.C. Gherebi Docket 

Sheet] (one detainee); Docket Sheet, El-Banna v. Bush, No. 1:04-cv-1144 (D.D.C. July 6, 2004)

(three detainees); Docket Sheet, Benchellali v. Bush, No. 1:04-cv-1142 (D.D.C. July 6, 2004)

(three detainees); Docket Sheet, Begg v. Bush, No. 1:04-cv-1137 (D.D.C. July 2, 2004) (two detainees); Docket Sheet, Khadr v. Bush, No. 1:04-cv-1136 (July 2, 2004) [hereinafter Khadr Docket Sheet] (one detainee); Docket Sheet, Kurnaz v. Bush, No. 1:04-cv-1135 (D.D.C. July 2, 2004)

(one detainee); see Margulies, supra note 1018, at 158 ( While we were waiting for the Supreme

Court in Rasul, . . . Clive Stafford Smith had quietly been gathering authorizations to proceed on

behalf of several dozen other prisoners at the base, and the Center for Constitutional Rights had

recruited a score of prominent law firms to handle these new cases free of charge. ). While argument in the Supreme Court case was pending, an attorney filed a habeas petition on

behalf of three of these detainees, Docket Sheet, Sassi v. Bush, No. 1:04-cv-547 (D.D.C. Apr. 5, 

2004) (habeas petition by next friends of Nizar Sassi, Ridouane Khalid, and Omar Khadr), which

the court dismissed on the parties motion, Order, id. (Apr. 15, 2004).

1045. Opinion, Rasul, No. 1:02-cv-299 (D.D.C. July 26, 2004).

1046. Docket Sheet, Hamdan v. Rumsfeld, No. 1:04-cv-1519 (D.D.C. Sept. 2, 2004) [hereinafter Hamdan Docket Sheet] (one detainee); Docket Sheet, Abdah v. Bush, No. 1:04-cv-1254 

(D.D.C. July 27, 2004) (14 detainees); Docket Sheet, Almurbati v. Bush, No. 1:04-cv-1227 

(D.D.C. July 22, 2004) (six detainees).

1047. For this report, Tim Reagan interviewed Judge Green; Frank Kulbaski, her former law

clerk who served as her attorney advisor; and Marcia Davidson, who served as her judicial assistant, at the Federal Judicial Center on September 21, 2011.
National Security Case Management Studies (11/14/2011) 123

sequently filed, but assigned judges would retain their cases for merits pur- poses.1048

Judge Green assembled an informal meeting with petitioners attorneys and

representatives of the government, which included military personnel.1049 At the

meeting, Judge Green said that she expected written justifications of detention for

each petitioner, which the government asked to think about.1050 At a second informal meeting three days later, the government agreed to submit returns on a

rolling basis.1051

It proved important to make sure that attorneys understood before whom motions and the like should be filed so that they did not think they could choose strategically between Judge Green and the merits judge.1052

Ninth Circuit Cases

Two of the 11 new cases were not filed originally in the District of Columbia;

they were transferred from the Ninth Circuit.1053 Before these two cases were filed 

in Ninth Circuit districts, and before the parents of Hicks, Rasul, and Iqbal filed a

petition in the District of Columbia, concerned citizens filed a habeas petition on

behalf of Guantánamo Bay detainees, on January 20, 2002, under the name Coalition of Clergy, Lawyers, and Professors, in the Central District of Califor-

 1048. E.g., Coordination Order, Rasul, No. 1:02-cv-299 (D.D.C. Sept. 20, 2004); see Gherebi 

v. Bush, 338 F. Supp. 2d 91, 94 (D.D.C. 2004); Order, Abdah, No. 1:04-cv-1254 (D.D.C. Oct. 5, 2004) (transfer by Judge Kennedy); Order, Anam, No. 1:04-cv-1194 (D.D.C. Oct. 5, 2004) (transfer by Judge Kennedy); Order, Boumediene, No. 1:04-cv-1166 (D.D.C. Sept. 30, 2004) (transfer

by Judge Leon); Order El-Banna, No. 1:04-cv-1144 (D.D.C. Sept. 29, 2004) (transfer by Judge

Roberts); Order, Benchellali, No. 1:04-cv-1142 (D.D.C. Sept. 29, 2004) (transfer by Judge Leon);

Order, Khadr, No. 1:04-cv-1136 (D.D.C. Sept. 21, 2004) (transfer by Judge Bates); Order, Begg, No. 1:04-cv-1137 (D.D.C. Sept. 20, 2004) (transfer by Judge Collyer); Order, Kurnaz, No. 1:04- cv-1135 (D.D.C. Sept. 20, 2004) (transfer by Judge Huvelle); Order, Almurbati, No. 1:04-cv-1227 

(D.D.C. Sept. 17, 2004) (transfer by Judge Walton); Order, Gherebi, No. 1:04-cv-1164 (D.D.C. Sept. 17, 2004) (transfer by Judge Walton); Order, Habib v. Bush, No. 1:02-cv-1130 (D.D.C. Sept. 

17, 2004) (transfer by Judge Kollar-Kotelly); Order, Al-Odah v. United States, No. 1:02-cv-828 

(D.D.C. Sept. 17, 2004) (transfer by Judge Kollar-Kotelly); Order, Rasul, No. 1:02-cv-299 

(D.D.C. Sept. 17, 2004) (transfer by Judge Kollar-Kotelly); Hamdan Docket Sheet, supra note 

1046 (noting Sept. 14, 2004, transfer by Judge Robertson); see also Al Odah v. United States, 346

F. Supp. 2d 1, 4 5 n.5 (D.D.C. 2004); Daniel Freeman, One Case, Two Decisions: Khalid v. Bush, In re Guantanamo Detainee Cases, and the Neutral Decionsmaker, 24 Yale L. & Pol y Rev. 241, 243 (2006); Mahler, supra note 1026, at 146 47; Margulies, supra note 1018, at 205.

The court commonly refers complex matters of general application to senior judges, who have

more control over their dockets and time. Interview with Hon. Royce C. Lamberth, May 13, 2011; 

see Wax, supra note 91, at 168.

1049. Interview with Hon. Joyce Hens Green, Sept. 21, 2011.

1050. Id.

1051. Id.

1052. Id.

1053. Hamdan Docket Sheet, supra note 1046; D.D.C. Gherebi Docket Sheet, supra note 

1044; see Docket Sheet, Swift v. Rumsfeld, No. 2:04-cv-777 (W.D. Wash. Apr. 6, 2004) (petition

on behalf of Salim Ahmed Hamdan); Docket Sheet, Gheredi v. Bush, No. 2:03-cv-1267 (C.D. Cal. 

Feb. 24, 2003) [hereinafter C.D. Cal. Gheredi Docket Sheet] (petition on behalf of Falen Gherebi, spelling his last name as Gheredi ).
124 National Security Case Management Studies (11/14/2011)

nia.1054 On February 21, Judge A. Howard Matz dismissed the petition, finding

that the plaintiffs lacked standing and no federal court would have jurisdiction

over the petition anyway.1055 On November 18, the court of appeals affirmed on

standing and vacated the district court s holding on jurisdiction, reasoning that if

the plaintiffs lacked standing the court lacked jurisdiction over the jurisdiction

issue.1056

On February 1, 2003, the brother of detainee Salim Gherebi presented to the

court of appeals for the Ninth Circuit a habeas petition,1057which the court transferred to the district court for the Central District of California, and the district

court assigned the petition to Judge Matz.1058 Finding that this petitioner had

standing, Judge Matz again ruled, on May 13, that no federal court had jurisdiction over Guantánamo Bay habeas petitions.1059 On December 18, the court of appeals reversed.1060 On June 30, 2004, the Supreme Court vacated the court of appeals decision and remanded the case for reconsideration in light of the holding

in Rumsfield v. Padilla

1061 that Jose Padilla s habeas petition filed in the Southern

District of New York where he had been in detention as a material witness could

not be heard in that district because he had been transferred to a naval brig in the

District of South Carolina.1062 On July 8, the court of appeals transferred Gherebi s petition to the District of Columbia.1063

 1054. Docket Sheet, Coalition of Clergy, Lawyers & Professors v. Bush, No. 2:02-cv-570 

(C.D. Cal. Jan 20, 2002); see Coalition of Clergy v. Bush, 189 F. Supp. 2d 1036, 1038 (C.D. Cal. 2002); see also Gherebi v. Bush, 338 F. Supp. 2d 91, 92 (D.D.C. 2004).

1055. Coalition of Clergy, 189 F. Supp. 2d 1036, af d in part and rev d in part, 310 F.3d 1153

(9th Cir. 2002); see Gherebi, 338 F. Supp. 2d at 92. 1056. Coalition of Clergy, 310 F.3d 1153; see Gherebi, 338 F. Supp. 2d at 92.

On August 26, 2003, the coalition attempted to cure standing deficiencies, which Judge Matz

observed would be relatively easy to do, Gherebi v. Bush, 262 F. Supp. 2d 1064, 1066 (C.D. Cal. 2003), and filed a new complaint, Docket Sheet, Coalition of Clergy, Lawyers & Professors v. Bush, No. 2:02-cv-9516 (C.D. Cal. Dec. 16, 2002). Judge Matz dismissed the complaint on August 5, 2003, before the court of appeals held that federal courts had jurisdiction over Guantánamo 

Bay habeas petitions. Order, id. (Aug. 5, 2003). An appeal was dismissed on April 7, 2004, for

lack of prosecution. Docket Sheet, Coalition of Clergy, Lawyers & Professors v. Bush, No. 03- 56484 (9th Cir. Aug. 26, 2003).

1057. Docket Sheet, Gheredi v. Bush, No. 03-80012 (9th Cir. Feb. 5, 2003); Gherebi, 338 F. Supp. 2d at 92.

1058. C.D. Cal. Gheredi Docket Sheet, supra note 1053. 1059. Gherebi, 262 F. Supp. 2d 1064, rev d, 374 F.3d 727 (9th Cir. 2004); see Gherebi, 338 F. 

Supp. 2d at 92 93; Mahler, supra note 1026, at 98.

1060. Gherebi v. Bush, 352 F.3d 1278 (9th Cir. 2003), modified, 374 F.3d 727; see Gherebi, 338 F. Supp. 2d at 93; Mahler, supra note 1026, at 98; John Mintz, Hearing Ordered for Terrorism Detainee, Wash. Post, Dec. 19, 2003, at A19.

1061. 542 U.S. 426, 451 (2004).

1062. Bush v. Gherebi, 542 U.S. 952 (2004); see Gherebi, 338 F. Supp. 2d at 93; see also infra, Dirty Bomber. 1063. Gherebi, 374 F.3d at 739; Gherebi, 338 F. Supp. 2d at 93 94.
National Security Case Management Studies (11/14/2011) 125

The second transferred action was filed by Salim Ahmed Hamdan s military

lawyer, who was assigned to represent Hamdan before a military commission.1064

Hamdan, who was a driver for Osama Bin Laden, was captured in Afghanistan in

November 2001 and transferred to Guantánamo Bay in mid-2002.1065 In 2003, he

was one of the first six detainees that President Bush referred to a military commission for trial.1066 On April 6, 2004, Lieutenant Commander Charles Swift filed 

a habeas corpus action on behalf of Hamdan in Swift s home district, the Western

District of Washington.1067 On August 9, Judge Robert S. Lasnik transferred the

petition, which challenged the validity of the military commission, to the District

of Columbia.1068

Establishing Military Commissions

The District of Columbia district court assigned Hamdan s action to Judge James

Robertson.1069 Although Hamdan s petition was included in the court s coordination of preliminary matters before Judge Green, Judge Robertson was able to resolve substantial issues in the case in an opinion issued November 8, 2004.1070

Judge Robertson granted Hamdan s petition in part, holding that the military

commission that was to try Hamdan could not do so lawfully, because its proce-

 1064. Petition, Swift v. Rumsfeld, No. 2:04-cv-777 (W.D. Wash. Apr. 6, 2004) [hereinafter

Swift Petition]; see Neil A. Lewis, Suit Contests Military Trials of Detainees at Cuba Base, N.Y. Times, Apr. 8, 2004, at A25.

1065. Hamdan v. Rumsfeld, 565 F. Supp. 2d 130, 131 (D.D.C. 2008); Hamdan v. Rumsfeld, 464 F. Supp. 2d 9, 10 (D.D.C. 2006); see Neil A. Lewis, Judge Sets Back Guantánamo Detainees, N.Y. Times, Dec. 14, 2006, at A32; Mahler, supra note 1026, at 10 11; Soufan, supra note 64, at

449.

1066. Hamdan, 565 F. Supp. 2d at 131; Hamdan, 464 F. Supp. 2d at 10; see Lewis, supra note 

1064; Soufan, supra note 64, at 454 58 (describing how Hamdan s referral for prosecution interrupted acquisition of intelligence from him).

1067. Swift Petition, supra note 1064; see Hamdan, 565 F. Supp. 2d at 131; Hamdan, 464 F. Supp. 2d at 10; Lewis, supra note 1064; Mahler, supra note 1026, at 99 ( American service members are considered legal residents of wherever they last lived before joining up. So even though

Swift had lived in Puerto Rico, Florida, and now Virginia, his official place of residence hadn t

changed since he attended law school in Seattle. ). Swift s instructions from superior officers were to negotiate a deal, not to advocate zealously

for his client, as JAG lawyers were bound and trained to do. The Bush administration had deliberately chosen for prosecution detainees who, it believed, would plead guilty and thereby

give some legitimacy to the military commission process and the Guantánamo detention system generally.

Hafetz, supra note 502, at 138.

1068. Order, Swift, No. 2:04-cv-777 (W.D. Wash. Aug. 9, 2004); see Hamdan, 565 F. Supp. 2d 

at 131; Hamdan, 464 F. Supp. 2d at 10; Mahler, supra note 1026, at 141.

1069. Hamdan Docket Sheet, supra note 1046; see Mahler, supra note 1026, at 146.

1070. Hamdan v. Rumsfeld, 344 F. Supp. 2d 152 (D.D.C. 2004); see Hamdan, 565 F. Supp. 2d 

at 131; Hamdan, 464 F. Supp. 2d at 10; In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 447 n.7 (D.D.C. 2005); see also Mahler, supra note 1026, at 148 (reporting that Judge Robertson

decided to keep Hamdan s case on letter request from Hamdan s attorneys).
126 National Security Case Management Studies (11/14/2011)

dures allowed for conviction on secret evidence.1071 The ruling reached Cuba that

day, which resulted in a pretrial proceeding s indefinite recess.1072 The court of

appeals reversed, holding that Congress authorized the military commission that 

will try Hamdan. 1073 The Supreme Court decided Hamdan v. Rumsfeld on June

29, 2006, reversing the court of appeals because the procedures specified for the

military commission violated the Uniform Code of Military Justice.1074

On remand, Judge Robertson decided that the Military Commissions Act, signed by the President on October 17, deprived Guantánamo Bay detainees of

statutory habeas corpus1075and that Hamdan s connection to the United States

lacks the geographical and volitional predicates necessary to claim a constitutional right to habeas corpus. 1076 On July 18, 2008, Judge Robertson determined that

the Military Commissions Act of 2006 established procedures much improved

over those created earlier by executive order, and the provision for appeal to the

court of appeals for the District of Columbia Circuit created an opportunity for

adequate judicial review.1077 On August 6, a military tribunal convicted Hamdan

of providing material support for terrorism but not of terrorism conspiracy.1078

The jury recommended a sentence of five years and six months, and the judge

gave Hamdan credit for time served of five years and one month.1079 The govern-

 1071. Hamdan, 344 F. Supp. 2d at 166 72, rev d, 415 F.3d 33 (D.C. Cir. 2005), rev d, 548 

U.S. 557 (2006); see Hafetz, supra note 502, at 139; Neil A. Lewis, U.S. Judge Halts War-Crime 

Trial at Guantánamo, N.Y. Times, Nov. 9, 2004, at A1.

1072. See Lewis, supra note 1071; Mahler, supra note 1026, at 164 65.

1073. Hamdan, 415 F.3d 33, rev d, 548 U.S. 557; see Hafetz, supra note 502, at 139; Neil A. Lewis, Ruling Lets U.S. Restart Trials at Guantánamo, N.Y. Times, July 16, 2005, at A1; Mahler, supra note 1026, at 191 92.

1074. Hamdan, 548 U.S. at 613; see Linda Greenhouse, Justices, 5-3, Broadly Reject Bush

Plan to Try Detainees, N.Y. Times, June 30, 2006, at A1; Hafetz, supra note 502, at 147 48; 

Mahler, supra note 1026, at 283 85.

Following the Supreme Court s Hamdan decision, Hamdan s military attorney Swift was

forced out of the Navy. See Mahler, supra note 1026, at 296 98.

1075. Hamdan, 464 F. Supp. 2d at 11 12; see Robert Barnes, Judge Rejects Detention Challenge of Bin Laden s Driver, Wash. Post, Dec. 14, 2006, at A9; Lewis, supra note 1065; Mahler, supra note 1026, at 300 01.

1076. Hamdan, 464 F. Supp. 2d at 18; see Lewis, supra note 1065. 1077. Hamdan v. Gates, 565 F. Supp. 2d 130 (D.D.C. 2008); see Scott Shane & William Glaberson, Rulings Clear Military Trial of a Detainee, N.Y. Times, July 18, 2008, at A1.

1078. Notice of Transfer, Hamdan v. Gates, No. 1:04-cv-1519 (D.D.C. Jan. 30, 2009)

[hereinafter Hamdan Notice of Transfer]; Transcript at 3939 42, United States v. Hamdan (U.S. Mil. Comm. Aug. 6, 2008), available at http://www.mc.mil; see Charges, id. (May 10, 2007); see 

also William Glaberson, Panel Convicts Bin Laden Driver in Split Verdict, N.Y. Times, Aug. 7, 2008, at A1; Jerry Markon, Hamdan Guilty of Terror Support, Wash. Post, Aug. 7, 2008, at A1

1079. Transcript at 4173 74, United States v. Hamdan (U.S. Mil. Comm. Aug. 7, 2008), available at http://www.mc.mil; see William Glaberson, Panel Sentences Bin Laden Driver to a

Short Term, N.Y. Times, Aug. 8, 2008, at A1 (reporting on a credit of 61 months since Hamdan 

had been charged out of more than six years in all); Greenberg, supra note 1040, at 220 ( there

was such scant evidence that his sentence was only five and a half years ); Jerry Markon & Josh

White, Bin Laden Driver Gets 51⁄2 Years; U.S. Sought 30, Wash. Post, Aug. 8, 2008, at A1; Soufan, supra note 64, at 457.
National Security Case Management Studies (11/14/2011) 127

ment released Hamdan to Yemen on November 25, 2008, to serve the last month

of his sentence.1080 On January 8, 2009, Yemen released Hamdan to live with his

family in Sana.1081 On June 24, 2011, the Court of Military Commission Review

affirmed his conviction and sentence.1082

Decisions by Judges Leon and Green

On November 15, 2004, Judge Richard J. Leon took back assignment for all purposes the two cases originally assigned to him.1083 The court made sure that attorneys were promptly notified of the reassignment.1084 By this time, two of the nine

detainees in these two cases were no longer at Guantánamo Bay.1085 On January

19, 2005, Judge Leon dismissed the petitions, holding that there was nothing unlawful about the detention of non-resident aliens captured abroad and detained

outside the territorial sovereignty of the United States, pursuant to lawful military

orders, during a Congressionally authorized conflict. 1086

Eleven cases remained before Judge Green, who held on January 31 that the

habeas petitions stated valid due process claims.1087 Nine days after the Supreme

Court s Rasul decision, the Defense Department created a Combatant Status Review Tribunal (CSRT) to establish whether each detainee is an enemy combatant.1088 The government used the results of CSRT proceedings as habeas returns.1089 Judge Green held that CSRT procedures did not meet constitutional

 1080. Hamdan Notice of Transfer, supra note 1078; see Joe McMillan, The United States on Trial, in The Guantánamo Lawyers, supra note 1023, at 178, 183; Carol Rosenberg, Bin Laden s

Driver Will Finish Jail Time in Yemen, Miami Herald, Nov. 26, 2008, at 5A.

1081. See McMillan, supra note 1080, at 183; Soufan, supra note 64, at 457; Yemen Releases

Former Bin Laden Driver from Jail, N.Y. Times, Jan. 12, 2009, at A9.

1082. Opinion, United States v. Hamdan, No. 09-2 (U.S. Ct. Mil. Comm. Rev. June 24, 2011), available at http://www.mc.mil/CASES/USCourtofMilitaryCommissionReview.aspx. 1083. Order, Boumediene v. Bush, No. 1:04-cv-1166 (D.D.C. Nov. 15, 2004); Order, Benchellali v. Bush, No. 1:04-cv-1142 (D.D.C. Nov. 15, 2004); see O.K. v. Bush, 377 F. Supp. 2d 102, 104 (D.D.C. 2005) ( Judge Richard Leon elected to retain the motions to dismiss in his two cases. ); Freeman, supra note 1048, at 243; Joe Palazzolo, Judges Vow to Move Fast on Gitmo Cases, Legal Times, July 14, 2008, at 6; Wax, supra note 91, at 169.

1084. Interview with Hon. Joyce Hens Green, Sept. 21, 2011.

1085. Khalid v. Bush, 355 F. Supp. 2d 311, 316 n.3 (D.D.C. 2005); Motion, Benchellali, No. 1:04-cv-1142 (D.D.C. Sept. 21, 2004); see Wax, supra note 91, at 169.

1086. Khalid, 355 F. Supp. 2d at 314; see Boumediene v. Bush, 553 U.S. 723, 734 35 (2008);

see also Freeman, supra note 1048, at 241; Hafetz, supra note 502, at 135.

1087. In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 481 (D.D.C. 2005); see Freeman, supra note 1048, at 241; Hafetz, supra note 502, at 136 37; Wax, supra note 91, at 169 70.

1088. Boumediene, 553 U.S. at 733; Al Odah v. United States, 559 F.3d 539, 541 (D.C. Cir. 2009); Bismullah v. Gates, 501 F.3d 178, 181 (D.C. Cir. 2007); In re Guantanamo Detainee Cases, 355 F. Supp. 2d at 450; see Margulies, supra note 1018, at 159 ( Each tribunal would consist

of three commissioned officers who would base their decision on information presented by the

military and the prisoner. ); Meltzer, supra note 1034, at 6; Simard, supra note 1034, at 378;

Thomas P. Sullivan, Due Process at Guantánamo, in The Guantánamo Lawyers, supra note 

1023, at 148. See generally Taxi to the Dark Side (Discovery Channel 2007).

CSRT records are posted at http://www.defense.gov/news/Combatant_Tribunals.html. 1089. Interview with Hon. Joyce Hens Green, Sept. 21, 2011.
128 National Security Case Management Studies (11/14/2011)

standards for due process.1090 In addition, some petitioners stated valid claims under the Geneva Conventions.1091 While Judge Green s decision was pending, the

court received an additional eight cases.1092

Ill-Fated Transfer Injunctions

On Tuesday, March 1, 2005, attorneys for several Yemeni detainees sought from

Judge Henry H. Kennedy, Jr., to whom the case had been assigned, an order requiring the government to give the attorneys 30 days notice before transferring

their clients from Guantánamo Bay, in light of concerns that the government 

would deprive the court of jurisdiction over the detainees by transferring them to

prisons in other countries.1093 On Friday of the following week, the New York

Times reported on a plan to cut by more than half the population at [the] detention facility in Guantánamo Bay, Cuba, in part by transferring hundreds of suspected terrorists to prisons in Saudi Arabia, Afghanistan and Yemen. 1094 At 

10:30 p.m. that night, the Yemenis attorneys submitted to the court an emergency 

motion for a temporary restraining order preventing transfer until Judge Kennedy

could rule on the injunction motion.1095

 1090. In re Guantanamo Detainee Cases, 355 F. Supp. 2d at 481; see Boumediene, 553 U.S. at 

734 35; see Hafetz, supra note 502, at 136 37.

1091. In re Guantanamo Detainee Cases, 355 F. Supp. 2d at 481.

1092. Docket Sheet, Abdullah v. Bush, No. 1:05-cv-23 (D.D.C. Jan. 7, 2005) (two detainees);

Docket Sheet, Ben Mustapha v. Bush, No. 1:05-cv-22 (D.D.C. Jan. 7, 2005) (one detainee); Docket Sheet, Deghayes v. Bush, No. 1:04-cv-2215 (D.D.C. Dec. 22, 2004) (three detainees); Docket

Sheet, Zemiri v. Bush, No. 1:04-cv-2046 (D.D.C. Nov. 19, 2004) (one detainee); Docket Sheet, 

Al-Marri v. Bush, No. 1:04-cv-2035 (D.D.C. Nov. 17, 2004) (one detainee); Docket Sheet, Paracha v. Bush, No. 1:04-cv-2022 (D.D.C. Nov. 17, 2004) [hereinafter Paracha Docket Sheet] (one

detainee); Docket Sheet, Al-Qosi v. Bush, No. 1:04-cv-1937 (D.D.C. Nov. 8, 2004) (one detainee); Docket Sheet, Belmar v. Bush, No. 1:04-cv-1897 (D.D.C. Nov. 1, 2004) [hereinafter Belmar

Docket Sheet] (one detainee); see In re Guantanamo Detainee Cases, 355 F. Supp. 2d at 452 &

n.15; see also Charles H. Carpenter, Playing Politics, in The Guantánamo Lawyers, supra note 

1023, at 301, 301 (reporting on the filing of the petition in No. 1:05-cv-23).

1093. Motion, Abdah v. Bush, No. 1:04-cv-1254 (D.D.C. Mar. 3, 2005); see Robert M. Chesney, Leaving Guantánamo: The Law of International Detainee Transfers, U. Rich. L. Rev. 657, 665 66 (2006) ( Since the spring of 2005, the docket of the district court in the District of Columbia has been flooded with motions by GTMO detainees seeking preliminary relief associated with

the possibility of a transfer. ); see also id. at 658 (noting that the purpose of the notice motions

was to preserve an opportunity to challenge transfers that would result in a risk of torture); Allison 

M. Lefrak, You re Going Home, in The Guantánamo Lawyers, supra note 1023, at 341, 342

( When a detainee is released, if [a thirty-day notice] order has been entered in his case, the government must give thirty days notice of the release, in order to allow attorneys to object if the

detainee is being sent to a country where he is likely to be tortured or persecuted. ). The petition was filed on behalf of 14 detainees, but the government could not locate Aref Abd 

il-Rheem. Order, Abdah, No. 1:04-cv-1254 (D.D.C. Mar. 29, 2005) [hereinafter Abdah Order], available at 2005 WL 711814; Status Report, id. (Oct. 22, 2004).

1094. Douglas Jehl, Neil A. Lewis & Tim Golden, Pentagon Seeks to Shift Inmates from Cuba

Base, N.Y. Times, Mar. 11, 2005, at A1; see Al-Anazi v. Bush, 370 F. Supp. 2d 188 (D.D.C. 2005); Opinion at 1 2, Abdah, No. 1:04-cv-1254 (D.D.C. Mar. 12, 2005) [hereinafter Abdah

Temporary Restraining Order], available at 2005 WL 589812. 1095. Abdah Temporary Restraining Order, supra note 1094, at 1 n.1.
National Security Case Management Studies (11/14/2011) 129

Judge Rosemary M. Collyer was on duty as the emergency motion judge that

weekend.1096 On Saturday, Judge Collyer granted the temporary restraining order.1097 On Sunday, several attorneys sought temporary restraining orders on behalf of their clients, but Judge Collyer declined to issue such orders en masse.1098

On Monday, attorneys began to file 30-day-notice motions in other cases.1099

Judge Kennedy granted the Yemenis motion

1100

and issued similar orders in

other cases.1101 Judges Ricardo M. Urbina,1102 Paul L. Friedman,1103 Gladys Kessler,1104 Richard W. Roberts,1105 Kollar-Kotelly,1106 Emmet G. Sullivan,1107 and 

 1096. Id.

Tim Reagan interviewed Judge Collyer for this report in the judge s chambers on September

20, 2011.

1097. Abdah Temporary Restraining Order, supra note 1094. 1098. Interview with Hon. Rosemary M. Collyer, Sept. 20, 2011.

1099. O.K. v. Bush, 377 F. Supp. 2d 102, 105 (D.D.C. 2005); Motion, Abdullah v. Bush, No. 1:05-cv-23 (D.D.C. Mar. 14, 2005).

1100. Abdah Order, supra note 1093; see Marc D. Falkoff, Without Law or Justice, in The 

Guantánamo Lawyers, supra note 1023, at 155, 164 ( [W]e proved to the judge s satisfaction that

we had legitimate and well-founded fears that the United States might render our clients to other

countries to be tortured. Our notice order would provide [the detainee] protection and enough time 

for us to get to the court in case the government tried anything like that. ). 1101. Order, Al-Shubati v. Bush, No. 1:07-cv-2338 (D.D.C. Jan. 11, 2008); Order, Al-Yazidi 

v. Bush, No. 1:07-cv-2337 (D.D.C. Jan. 11, 2008); Order, Hentif v. Bush, No. 1:06-cv-1766 

(D.D.C. July 28, 2007); Order, Saleh v. Bush, No. 1:06-cv-1765 (D.D.C. July 28, 2007); Order, Al-Harbi v. Bush, No. 1:05-cv-2479 (D.D.C. Aug. 18, 2006); Order, Al-Asadi v. Bush, No. 1:05- cv-2197 (D.D.C. Nov. 29, 2005); Order, Zakirjan v. Bush, No. 1:05-cv-2053 (D.D.C. Nov. 21, 2005); Order, Anam v. Bush, No. 1:04-cv-1194 (D.D.C. May 9, 2005); Order, Al-Mohammed v. Bush, No. 1:05-cv-247 (D.D.C. Mar. 30, 2005).

1102. Order, Al-Zarnouqi v. Bush, No. 1:06-cv-1767 (D.D.C. Dec. 4, 2006); Order, Rabbani v. 

Bush, No. 1:05-cv-1607 (D.D.C. June 16, 2006); Order, Alkhemisi v. Bush, No. 1:05-cv-1983 

(D.D.C. Nov. 21, 2005); Order, Al-Subaiy v. Bush, No. 1:05-cv-1453 (D.D.C. Sept. 19, 2005);

Order, Kiyemba v. Bush, No. 1:05-cv-1509 (D.D.C. Sept. 13, 2005); Order, Sohail v. Bush, No. 1:05-cv-993 (D.D.C. Sept. 13, 2005); Order, Faizullah v. Bush, No. 1:05-cv-1489 (D.D.C. Aug. 22, 2005); Order, Hatim v. Bush, No. 1:05-cv-1429 (D.D.C. Aug. 22, 2005); Order, El-Marqodi v. 

Bush, No. 1:05-cv-1649 (D.D.C. Aug. 19, 2005); Order, Al-Karim v. Bush, No. 1:05-cv-998 

(D.D.C. Aug. 8, 2005); Order, Zalita v. Bush, No. 1:05-cv-1220 (D.D.C. July 25, 2005); Order, Al-Hela v. Bush, No. 1:05-cv-1048 (D.D.C. June 3, 2005); Order, Tumani v. Bush, No. 1:05-cv- 526 (D.D.C. Apr. 6, 2005); Order, Qayed v. Bush, No. 1:05-cv-454 (D.D.C. Apr. 6, 2005); Order, Al-Oshan v. Bush, No. 1:05-cv-520 (D.D.C. Mar. 31, 2005).

Tim Reagan interviewed Judge Urbina for this report in the judge s chambers on August 15, 2011.

1103. Paracha v. Bush, 374 F. Supp. 2d 118 (D.D.C. 2005); Mokit v. Bush, 374 F. Supp. 2d

106 (D.D.C. 2005); Order, Almerfedi v. Bush, No. 1:05-cv-1645 (D.D.C. June 23, 2005); Minute

Order, Al-Salami v. Bush, No. 1:05-cv-2452 (D.D.C. May 31, 2006); Order, Akhtiar v. Bush, No. 1:05-cv-1635 (D.D.C. Sept. 26, 2005) [hereinafter Sept. 26, 2005, Akhtiar Order]; Order, Al- Shihry v. Bush, No. 1:05-cv-490 (D.D.C. Apr. 1, 2005), available at 2005 WL 1384680; Order, Al-Wazan v. Bush, No. 1:05-cv-329 (D.D.C. Apr. 1, 2005).

For this report, Tim Reagan interviewed Judge Friedman and his law clerk Albinas Prizgintas

in the judge s chambers on October 12, 2011. 1104. Order, Mohammad v. Bush, No. 1:05-cv-885 (D.D.C. July 31, 2006); Order, Rahman v. Bush, No. 1:05-cv-882 (D.D.C. July 31, 2006); Order, Al-Aweda v. Bush, No. 1:05-cv-1668 
130 National Security Case Management Studies (11/14/2011)

Thomas F. Hogan

1108

also issued similar orders. Judge Ellen Segal Huvelle ordered 30-days notice, unless the detainee was to be released to freedom.1109

Judge Robertson granted the government s motions to stay proceedings pending

resolution of jurisdictional questions in higher courts and interpreted the stay to

 (D.D.C. Dec. 28, 2005); Order, Alhami v. Bush, No. 1:05-cv-359 (D.D.C. June 9, 2005); Order, Al-Adahi v. Bush, No. 1:05-cv-280 (D.D.C. Apr. 28, 2005); Opinion, Al-Joudi v. Bush, No. 1:05- cv-301 (D.D.C. Apr. 4, 2005), available at 2005 WL 774847; Opinion, Al-Marri v. Bush, No. 1:04-cv-2035 (D.D.C. Apr. 4, 2005), available at 2005 WL 774843. Tim Reagan interviewed Judge Kessler for this report in the judge s chambers on May 31, 2011.

1105. Order, Al-Shareef v. Bush, No. 1:05-cv-2458 (D.D.C. Dec. 8, 2006), available at 2006 

WL 3544736; Order, Feghoul v. Bush, No. 1:06-cv-618 (D.D.C. Oct. 31, 2006), available at 2006 

WL 3096856; Order, Alsaaei v. Bush, No. 1:05-cv-2369 (D.D.C. Aug. 14, 2006), 2006 WL

2367270; Order, Said v. Bush, No. 1:05-cv-2384 (D.D.C. July 25, 2006); Order, Zadran v. Bush, No. 1:05-cv-2367 (D.D.C. July 19, 2006); Order, Hamoud v. Bush, No. 1:05-cv-1894 (D.D.C. July 5, 2006), available at 2006 WL 1876947; Opinion, Al-Rubaish v. Bush, No. 1:05-cv-1714 

(D.D.C. Dec. 14, 2005); Order, Mohammadi v. Bush, No. 1:05-cv-1246 (D.D.C. Sept. 22, 2005);

Order, Abdulzaher v. Bush, No. 1:05-cv-1236 (D.D.C. Sept. 22, 2005); Order, Ahmed v. Bush, No. 1:05-cv-665 (D.D.C. July 8, 2005), available at 2005 WL 1606912; Order, Chaman v. Bush, No. 1:05-cv-887 (D.D.C. June 16, 2005); Order, Slahi v. Bush, No. 1:05-cv-881 (D.D.C. June 16, 2005); Order, Adem v. Bush, No. 1:05-cv-723 (D.D.C. June 6, 2005); Order, Al-Daini v. Bush, No. 1:05-cv-634 (D.D.C. June 6, 2005); Order, Al-Shamri v. Bush, No. 1:05-cv-551 (D.D.C. May

11, 2005); Order, Al-Rashaidan v. Bush, No. 1:05-cv-586 (D.D.C. Apr. 8, 2005); Order, Abdullah 

v. Bush, No. 1:05-cv-23 (D.D.C. Apr. 8, 2005); Order, El-Banna v. Bush, No. 1:04-cv-1144 

(D.D.C. Apr. 8, 2005); see Marjorie M. Smith, The Other Man, in The Guantánamo Lawyers, supra note 1023, at 147.

1106. Order, Abu Ghanem v. Bush, No. 1:05-cv-1638 (D.D.C. July 10, 2007); Order, Rahmattullah v. Bush, No. 1:05-cv-878 (D.D.C. Jan. 23, 2007); Order, Alsawam v. Bush, No. 1:05-cv- 1244 (D.D.C. Oct. 4, 2006); Order, Al-Baidany v. Bush, No. 1:05-cv-2380 (D.D.C. Oct. 4, 2006);

Order, Ghalib v. Bush, No. 1:05-cv-1238 (D.D.C. May 1, 2006); Order, Shaaban v. Bush, No. 1:05-cv-892 (D.D.C. May 1, 2006); Order, Gul v. Bush, No. 1:05-cv-888 (D.D.C. May 1, 2006);

Order, Al-Mithali v. Bush, No. 1:05-cv-2186 (D.D.C. Dec. 20, 2005); Order, Al-Harbi v. Bush, No. 1:05-cv-1857 (D.D.C. Nov. 17, 2005); Order, Sameur v. Bush, No. 1:05-cv-1806 (D.D.C. Nov. 17, 2005); Order, Al-Badah v. Bush, No. 1:05-cv-1641 (D.D.C. Nov. 17, 2005).

1107. Order, Zuhair v. Bush, No. 1:08-cv-864 (D.D.C. July 31, 2008); Order, Al-Shibh v. Bush, No. 1:06-cv-1725 (D.D.C. July 31, 2008); Order, Al-Habashi v. Bush, No. 1:05-cv-2370 

(D.D.C. July 31, 2008); Order, Al-Sharbi v. Bush, No. 1:05-cv-2348 (D.D.C. July 31, 2008); Order, Batarfi v. Bush, No. 1:05-cv-409 (D.D.C. July 31, 2008); Order, Razakah v. Bush, No. 1:05- cv-2370 (D.D.C. Aug. 17, 2006); Order, Ahmed v. Bush, No. 1:05-cv-1234 (D.D.C. Aug. 17, 2006); Order, Wahab v. Bush, No. 1:05-cv-886 (D.D.C. Aug. 17, 2006).

1108. Order, In re Guantanamo Bay Detainee Litig., No. 1:08-mc-442 (D.D.C. July 10, 2008).

Tim Reagan interviewed Judge Hogan for this report in the judge s chambers on January 12, 2010.

1109. Order, Basardh v. Bush, No. 1:05-cv-889 (D.D.C. Sept. 25, 2006); Order, Al-Khatemi v. 

Bush, No. 1:05-cv-2248 (D.D.C. Dec. 20, 2005); Order, Al-Bahooth v. Bush, No. 1:05-cv-1666 

(D.D.C. Dec. 20, 2005); Order, Kahn v. Bush, No. 1:05-cv-1001 (D.D.C. Dec. 20, 2005); Order, Mamet v. Bush, No. 1:05-cv-1602 (D.D.C. Sept. 30, 2005); Order, Kurnaz v.Bush, No. 1:04-cv- 1135 (D.D.C. Apr. 12, 2005), available at 2005 WL 839542 (also applying to Ameziane v. Bush, No. 1:05-cv-392).

Tim Reagan interviewed Judge Huvelle for this report in the judge s chambers on June 13, 2011.
National Security Case Management Studies (11/14/2011) 131

prohibit transfer of the detainees without notice.1110 Judges Reggie B. Walton,1111

John D. Bates,1112 Leon,1113and Collyer

1114 declined to order 30-days notice of

detainee transfer.

Pursuant to the notice orders in some cases, the government filed sealed stipulated notices that petitioners attorneys consented to their clients impending

transfers without 30 days notice, and the notices were unsealed after the detain- ees were transferred.1115 In other cases, the public record includes notices of

sealed submissions in advance of detainee transfers,1116 but the submissions re-

 1110. Order, Awad v. Bush, No. 1:05-cv-2379 (D.D.C. Jan. 11, 2006) ( the stay will apply to

all proceedings applicable to the petitioners, including without limitation their release, repatriation, 

or rendition, and it will remain in effect until further order of the Court ); Order, Khan v. Bush, No. 1:05-cv-1491 (D.D.C. Dec. 6, 2005); Order, Khiali-Gul v. Bush, No. 1:05-cv-877 (D.D.C. Dec. 6, 2005); Order, Al-Mudafari v. Bush, No. 1:05-cv-2185 (D.D.C. Dec. 2, 2005); Order, Idris 

v. Bush, No. 1:05-cv-1555 (D.D.C. Dec. 2, 2005); Order, Khalifh v. Bush, No. 1:05-cv-1189 

(D.D.C. Oct. 24, 2005); Order, Aziz v. Bush, No. 1:05-cv-492 (D.D.C. Apr. 20, 2005); Order, Salahi v. Bush, No. 1:05-cv-569 (D.D.C. Apr. 15, 2005); Order, El-Mashad v. Bush, No. 1:05-cv- 270 (D.D.C. Apr. 7, 2005); Order, Qassim v. Bush, No. 1:05-cv-497 (D.D.C. Apr. 13, 2005); see

Qassim v. Bush, 382 F. Supp. 2d 126, 127 (D.D.C. 2005); see also Order, Alladeen v. Bush, No. 1:05-cv-833 (D.D.C. Oct. 27, 2005) (temporary restraining order against removal from Guantánamo Bay).

In one of the cases before Judge Robertson, petitioners filed a motion for an injunction against

rendition on February 4, 2005, a month ahead of the motion presented to Judge Kennedy. Motion, El-Mashad, No. 1:05-cv-270 (D.D.C. Feb. 4, 2005).

1111. Almurbati v. Bush, 366 F. Supp. 2d 72 (D.D.C. 2005).

Tim Reagan interviewed Judge Walton for this report in the judge s chambers on May 23, 2011.

1112. O.K. v. Bush, 377 F. Supp. 2d 102 (D.D.C. 2005); Al-Anazi v. Bush, 370 F. Supp. 2d

188 (D.D.C. 2005); Opinion, Al-Shabany v. Bush, No. 1:05-cv-2029 (D.D.C. Nov. 17, 2005), available at 2005 WL 3211407; Opinion, Zaid v. Bush, No. 1:05-cv-1646 (D.D.C. Oct. 25, 2005).

Tim Reagan interviewed Judge Bates for this report in the judge s chambers on October 15, 2009.

1113. Mammar v. Bush, 407 F. Supp. 2d 77 (D.D.C. 2005); Minute Order, Al-Ginco v. Bush, No. 1:05-cv-1310 (D.D.C. May 30, 2006).

1114. Order, Deghayes v. Bush, No. 1:04-cv-2215 (D.D.C. June 14, 2005) (ordering, however, 

30-days notice before transferring one detainee to Libya, where the detainee s father was allegedly assassinated by the Libyan government).

1115. Stipulation and Order, Al-Habashi v. Bush, No. 1:05-cv-765 (D.D.C. Jan. 28, 2009), filed as Ex. 1, Notice, id. (Mar. 5, 2009); Stipulation and Order, Al-Joudi v. Bush, No. 1:05-cv- 301 (D.D.C. Feb. 20, 2007); Stipulation and Order, Al-Badah v. Bush, No. 1:05-cv-1641 (D.D.C. Dec. 4, 2006); Stipulation and Order, Alladeen, No. 1:05-cv-833 (D.D.C. Nov. 15, 2006); Stipulation and Order, Mohammad v. Bush, No. 1:05-cv-885 (D.D.C. Nov. 14, 2006); Stipulation and

Order, Al-Badah, No. 1:05-cv-1641 (D.D.C. June 14, 2006).

1116. Filing Notice, Ahmed v. Bush, No. 1:05-cv-1234 (D.D.C. Oct. 9, 2008) (notice 32 days

in advance of transfer); Filing Notice, Al-Karim v. Bush, No. 1:05-cv-998 (D.D.C. Aug. 29, 2008) 

(141 days); Filing Notice, Wahab v. Bush, No. 1:05-cv-886 (D.D.C. Aug. 21, 2008) (18 days);

Filing Notice, Al-Qadir v. Bush, No. 1:08-cv-1185 (D.D.C. July 23, 2008) (33 days); Filing Notice, Feghoul v. Bush, No. 1:06-cv-618 (D.D.C. July 23, 2008) (33 days); Filing Notice, Al-Harbi 

v. Bush, No. 1:05-cv-2479 (D.D.C. July 23, 2008) (100 days); Filing Notice, Al-Marri v. Bush, No. 1:04-cv-2035 (D.D.C. June 6, 2008) (50 days); Filing Notice, Kahn v. Bush, No. 1:05-cv- 1001 (D.D.C. Apr. 3, 2008) (27 days); Filing Notice, Rahmattullah v. Bush, No. 1:05-cv-878 
132 National Security Case Management Studies (11/14/2011)

main sealed despite government notices that they can be unsealed.1117 In a few

additional cases, transfer notices refer to sealed submissions that are not otherwise 

reflected on the public record.1118

 (D.D.C. Apr. 8, 2008) (27 days); Filing Notice, Al-Bahooth v. Bush, No. 1:05-cv-1666 (D.D.C. Dec. 21, 2007) (seven days); Filing Notice, Al-Oshan v. Bush, No. 1:05-cv-520 (D.D.C. Dec. 21, 2007) (10 days); Filing Notice, Al-Joudi, No. 1:05-cv-301 (D.D.C. Dec. 21, 2007) (seven days);

Filing Notice, Sameur v. Bush, No. 1:05-cv-1806 (D.D.C. Dec. 12, 2007) (seven days); Filing

Notice, El-Banna v. Bush, No. 1:04-cv-1144 (D.D.C. Dec. 12, 2007) (seven days); Filing Notice, Zadran v. Bush, No. 1:05-cv-2367 (D.D.C. Dec. 5, 2007) (seven days); Filing Notice, Chaman v. Bush, No. 1:05-cv-887 (D.D.C. Dec. 5, 2007) (seven days); Filing Notice, Adem v. Bush, No. 1:05-cv-723 (D.D.C. Nov. 23, 2007) (21 days); Filing Notice, Rahman v. Bush, No. 1:05-cv-882 

(D.D.C. Oct. 26, 2007) (seven days); Filing Notice, Al-Shareef v. Bush, No. 1:05-cv-2458 (D.D.C. 

Oct. 19, 2007) (21 days); Filing Notice, Al-Oshan, No. 1:05-cv-520 (D.D.C. Aug. 28, 2007) (eight 

days); Filing Notice, Al-Harbi, No. 1:05-cv-2479 (D.D.C. July 11, 2007) (four days); Filing Notice, Al-Oshan, No. 1:05-cv-520 (D.D.C. July 11, 2007) (four days); Filing Notice, Hamoud v. Bush, No. 1:05-cv-1894 (D.D.C. June 5, 2007) (13 days); Filing Notice, Abdah v. Bush, No. 1:04- cv-1254 (D.D.C. June 5, 2007) (13 days); Filing Notice, El-Banna, No. 1:04-cv-1144 (D.D.C. Mar. 27, 2007) (three days); Filing Notice, Gul v. Bush, No. 1:05-cv-888 (D.D.C. Feb. 16, 2007)

(12 days); Filing Notice, Mokit v. Bush, No. 1:05-cv-621 (D.D.C. Jan. 29, 2007) (30 days); Filing

Notice, Al-Subaiy v. Bush, No. 1:05-cv-1453 (D.D.C. Jan. 19, 2007) (32 days); Filing Notice, Anam v. Bush, No. 1:04-cv-1194 (D.D.C. Dec. 8, 2006) (seven days); Filing Notice, Ghalib v. Bush, No. 1:05-cv-1238 (D.D.C. Dec. 5, 2006) (85 days); Filing Notice, Said v. Bush, No. 1:05- cv-2384 (D.D.C. Nov. 27, 2006) (16 days); Filing Notice, Alsaaei v. Bush, No. 1:05-cv-2369 

(D.D.C. Nov. 27, 2006) (14 days); Filing Notice, Al-Rubaish v. Bush, No. 1:05-cv-1714 (D.D.C. Nov. 27, 2006) (16 days); Filing Notice, Akhtiar v. Bush, No. 1:05-cv-1635 (D.D.C. Nov. 15, 2006) (30 days); Filing Notice, Zakirjan v. Bush, No. 1:05-cv-2053 (D.D.C. Nov. 7, 2006) (10

days); Filing Notice, Khan v. Bush, No. 1:05-cv-1491 (D.D.C. Oct. 2, 2006) (nine days); Filing

Notice, Faizullah v. Bush, No. 1:05-cv-1489 (D.D.C. Sept. 14, 2006) (27 days); Filing Notice, Mohammadi v. Bush, No. 1:05-cv-1246 (D.D.C. Aug. 31, 2006) (41 days); Filing Notice, Kurnaz

v. Bush, No. 1:04-cv-1135 (D.D.C. Aug. 17, 2006) (seven days); Filing Notice, Kiyemba v. Bush, No. 1:05-cv-1509 (D.D.C. June 15, 2006) (nine days); Filing Notice, Al-Aweda v. Bush, No. 1:05- cv-1668 (D.D.C. Apr. 26, 2006) (22 days); Filing Notice, Al-Badah, No. 1:05-cv-1641 (D.D.C. Apr. 26, 2006) (59 days); Filing Notice, Al-Rashaidan v. Bush, No. 1:05-cv-586 (D.D.C. Apr. 26, 2006) (22 days); Filing Notice, Al-Oshan, No. 1:05-cv-520 (D.D.C. Apr. 26, 2006) (59 days); Filing Notice, Al-Shihry v. Bush, No. 1:05-cv-490 (D.D.C. Apr. 26, 2006) (59 days); Filing Notice, Qayed v. Bush, No. 1:05-cv-454 (D.D.C. Apr. 26, 2006) (59 days); Filing Notice, Al-Joudi, No. 1:05-cv-301 (D.D.C. Apr. 26, 2006) (59 days); Filing Notice, Al-Khatemi v. Bush, No. 1:05-cv- 2248 (D.D.C. Apr. 24, 2006) (59 days); Filing Notice, Al-Oshan, No. 1:05-cv-520 (D.D.C. June

17, 2005) (32 days).

1117. Transfer Notice, Al-Karim, No. 1:05-cv-998 (D.D.C. Jan. 21, 2009); Transfer Notice, Ahmed, No. 1:05-cv-1234 (D.D.C. Nov. 10, 2008); Transfer Notice, Al-Harbi, No. 1:05-cv-2479 

(D.D.C. Oct. 31, 2008); Transfer Notice, Wahab, No. 1:05-cv-886 (D.D.C. Sept. 2, 2008); Transfer Notice, Al-Qadir, No. 1:08-cv-1185 (D.D.C. Sept. 1, 2008); Transfer Notice, Feghoul, No. 1:06-cv-618 (D.D.C. Sept. 1, 2008); Transfer Notice, Al-Marri, No. 1:04-cv-2035 (D.D.C. July

29, 2008); Transfer Notice, Kahn, No. 1:05-cv-1001 (D.D.C. May 5, 2008); Transfer Notice, Rahmattullah, No. 1:05-cv-878 (D.D.C. May 5, 2008); Transfer Notice, Sameur, No. 1:05-cv- 1806 (D.D.C. Dec. 21, 2007); Transfer Notice, Al-Bahooth, No. 1:05-cv-1666 (D.D.C. Dec. 21, 2007); Transfer Notices, Al-Joudi, No. 1:05-cv-301 (D.D.C. June 27, 2006, and Dec. 31, 2007);

Transfer Notices, Al-Oshan, No. 1:05-cv-520 (D.D.C. July 20, 2005, to Dec. 31, 2007); Transfer

Notices, El-Banna, No. 1:04-cv-1144 (D.D.C. Apr. 3 and Dec. 21, 2007); Transfer Notice, Zadran, No. 1:05-cv-2367 (D.D.C. Dec. 14, 2007); Transfer Notice, Chaman, No. 1:05-cv-887 
National Security Case Management Studies (11/14/2011) 133

In 2009, the court of appeals vacated the 30-day notice orders as beyond the

courts power.1119

On October 2, 2007, Judge Kessler enjoined the transfer of Mohammed Abdul 

Rahman to Tunisia, where he had been tried in absentia and sentenced to 20 years

in prison, on representations of fragile health and the possibility of torture in Tunisia.1120 On December 17, 2010, the court of appeals vacated the injunction on

the authority of an intervening case holding that the court may not enjoin a transfer if the government has determined that it is more likely than not that the detainee will not be tortured in the recipient country.1121

On August 19, 2011, Judge Walton denied a motion for an order requiring 30

days notice before a transfer affecting a habeas petition that would leave the detainee in United States custody.1122

Protective Order Coordination

On November 2, 2005, the district court s Calendar and Case Management Committee decided that all matters pertaining to interpretation of applicable protective

 (D.D.C. Dec. 14, 2007); Transfer Notice, Adem, No. 1:05-cv-723 (D.D.C. Dec. 14, 2007); Transfer Notice, Al-Shareef, No. 1:05-cv-2458 (D.D.C. Nov. 13, 2007); Transfer Notice, Rahman, No. 1:05-cv-882 (D.D.C. Nov. 13, 2007); Transfer Notice, Al-Harbi, No. 1:05-cv-2479 (D.D.C. July

17, 2007); Transfer Notice, Hamoudh, No. 1:05-cv-1894 (D.D.C. June 22, 2007); Transfer Notice, 

Abdah, No. 1:04-cv-1254 (D.D.C. June 22, 2007); Transfer Notice, Ghalib, No. 1:05-cv-1238 

(D.D.C. Mar. 2, 2007); Transfer Notice, Gul, No. 1:05-cv-888 (D.D.C. Mar. 2, 2007); Transfer

Notice, Mokit, No. 1:05-cv-621 (D.D.C. Mar. 2, 2007); Transfer Notice, Al-Subaiy, No. 1:05-cv- 1453 (D.D.C. Feb. 22, 2007); Transfer Notice, Said, No. 1:05-cv-2384 (D.D.C. Dec. 20, 2006);

Transfer Notice, Alsaaei, No. 1:05-cv-2369 (D.D.C. Dec. 20, 2006); Transfer Notice, Al-Rubaish, No. 1:05-cv-1714 (D.D.C. Dec. 20, 2006); Transfer Notice, Akhtiar, No. 1:05-cv-1635 (D.D.C. Dec. 20, 2006); Transfer Notice, Anam, No. 1:04-cv-1194 (D.D.C. Dec. 20, 2006); Transfer Notice, Zakirjan, No. 1:05-cv-2053 (D.D.C. Nov. 20, 2006); Transfer Notice, Khan, No. 1:05-cv- 1491 (D.D.C. Oct. 24, 2006); Transfer Notice, Faizullah, No. 1:05-cv-1489 (D.D.C. Oct. 24, 2006); Transfer Notice, Mohammadi, No. 1:05-cv-1246 (D.D.C. Oct. 24, 2006); Transfer Notice, Kurnaz, No. 1:04-cv-1135 (D.D.C. Aug. 25, 2006); Transfer Notice, Al-Khatemi, No. 1:05-cv- 2248 (D.D.C. June 27, 2006); Transfer Notice, Al-Badah, No. 1:05-cv-1641 (D.D.C. June 27, 2006); Transfer Notice, Kiyemba, No. 1:05-cv-1509 (D.D.C. June 27, 2006); Transfer Notice, Qayed, No. 1:05-cv-454 (D.D.C. June 27, 2006); Transfer Notice, Al-Shihry, No. 1:05-cv-490 

(D.D.C. June 27, 2006); Transfer Notice, Al-Aweda, No. 1:05-cv-1668 (D.D.C. May 23, 2006);

Transfer Notice, Al-Rashaidan, No. 1:05-cv-586 (D.D.C. May 23, 2006).

1118. Transfer Notice, Al-Joudi, No. 1:05-cv-301 (D.D.C. Nov. 13, 2007).

1119. Kiyemba v. Obama, 561 F.3d 509 (D.C. Cir. 2009), cert. denied, ___ U.S. ___, 130 S. Ct. 1880 (2010); Order, Khadr v. Obama, No. 08-5233 (D.C. Cir. Sept. 3, 2010) (applying the

holding in Kiyemba to other appeals), cert. denied, ___ U.S. ___, 131 S. Ct. 2900 (2011) (noting

that Justices Breyer and Sotomayor would have granted certiorari and that Justice Kagan did not

participate in the consideration of the certiorari petition).

1120. Order, Alhami v. Bush, No. 1:05-cv-359 (D.D.C. Oct. 2, 2007); see William Glaberson, Judge Halts Plan to Transfer Guantánamo Detainee, N.Y. Times, Oct. 10, 2007, at A16.

1121. Order, Alhami v. Obama, No. 07-5400 (D.C. Cir. Dec. 17, 2010) (citing Order, Bin Mohammed v. Obama, No. 10-5218 (D.C. Cir. July 8, 2010) (citing Kiyemba, 561 F.3d at 516)), cert. 

dismissed, ___ U.S. ___, 131 S. Ct. 2091 (2011).

1122. Order, Mohammon v. Obama, No. 1:05-cv-2386 (D.D.C. Aug. 19, 2011); see Motion, 

id. (May 13, 2011).
134 National Security Case Management Studies (11/14/2011)

orders or logistical issues, such as attorney communications and visits with detainees, would be referred to Magistrate Judge Alan Kay.1123

Although Judge Kay occasionally issued rulings resolving disputes, his primary role was to act as a mediator.1124 Judge Kay, an experienced mediator, considers mediation to be the legal equivalent of holistic medicine.1125 Assignment of

blame and the adversarial process are not essential components of mediation.1126

Judge Kay assisted with such matters as last-minute refusals to let attorneys land, the amount of physical restraints during attorney client meetings, and finding an

interpreter to replace one whose security clearance had been suddenly revoked.1127

The Justice Department provided the government with attorney representation 

in the habeas cases, but it was the Defense Department that controlled Guantánamo Bay.1128 Careful negotiation and mediation were crucial in working out matters with one of the parties so complex and powerful.1129

Unconstitutional Stripping of Habeas Jurisdiction

Reviewing in consolidated appeals both Judge Leon s decision that the detainees

did not have habeas rights and Judge Green s decision that they did, the court of

appeals, on February 20, 2007, determined that the October 17, 2006, Military

Commissions Act stripped the federal courts of jurisdiction over Guantánamo Bay 

habeas petitions.1130 In Boumediene v. Bush, however, the Supreme Court held, on 

June 12, 2008, that the Military Commissions Act was an unconstitutional suspention of habeas corpus.1131

Establishing Procedures for Resolving Several Hundred Petitions

226 Petitions

Between Judge Green s January 31, 2005, decision that the CSRT was constitutionally infirm and the Supreme Court s Boumediene decision, 226 habeas peti-

 1123. Order, Rasul v. Bush, No. 1:02-cv-299 (D.D.C. Nov. 2, 2005); see Murray Fogler, The 

Next Friend Catch-22, in The Guantánamo Lawyers, supra note 1023, at 115, 116; Wax, supra

note 91, at 178.

Tim Reagan interviewed Judge Kay for this report in the judge s chambers on June 21, 2011. 1124. Interview with Hon. Alan Kay, June 21, 2011; see Fogler, supra note 1123, at 116; Wax, 

supra note 91, at 178 79.

1125. Interview with Hon. Alan Kay, June 21, 2011 (noting that successful mediation usually

requires teaching, psychology, and humor).

1126. Id.

1127. Id.

1128. Id.

1129. Id.

1130. Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007), rev d, 553 U.S. 723 (2008); see

Military Commissions Act of 2006, Pub. L. No. 109-366 § 7(a), 120 Stat. 2600, 2635 36; see also

Hafetz, supra note 502, at 156 57; Meltzer, supra note 1034, at 7.

1131. Boumediene, 553 U.S. at 733, 792; see Robert Barnes, Justices Say Detainees Can Seek

Release, Wash. Post, June 13, 2008, at A1; Linda Greenhouse, Justices, 5-4, Back Detainee Appeals for Guantánamo, N.Y. Times, June 13, 2008, at A1; Hafetz, supra note 502, at 158 65; 

Meltzer, supra note 1034, at 9.
National Security Case Management Studies (11/14/2011) 135

tions were filed in the District of Columbia s district court on behalf of 560 detainees,1132

of which at least 78 were duplicates.1133 Sixty of the petitions were filed

 1132. The cases were assigned the following docket numbers: 1:05-cv-247, 1:05-cv-270, 1:05- cv-280, 1:05-cv-301, 1:05-cv-329, 1:05-cv-345, 1:05-cv-359, 1:05-cv-392, 1:05-cv-409, 1:05-cv- 429 through 1:05-cv-431, 1:05-cv-454, 1:05-cv-490, 1:05-cv-492, 1:05-cv-497, 1:05-cv-520, 1:05- cv-526, 1:05-cv-533, 1:05-cv-551, 1:05-cv-569, 1:05-cv-573, 1:05-cv-583, 1:05-cv-584, 1:05-cv- 586, 1:05-cv-621, 1:05-cv-634, 1:05-cv-640, 1:05-cv-660, 1:05-cv-665, 1:05-cv-714, 1:05-cv-723, 

1:05-cv-748, 1:05-cv-763 through 1:05-cv-766, 1:05-cv-795, 1:05-cv-833, 1:05-cv-877 through 

1:05-cv-892, 1:05-cv-993 through 1:05-cv-1002, 1:05-cv-1008 through 1:05-cv-1013, 1:05-cv- 1048, 1:05-cv-1124, 1:05-cv-1189, 1:05-cv-1220, 1:05-cv-1233 through 1:05-cv-1244, 1:05-cv- 1246, 1:05-cv-1310 through 1:05-cv-1312, 1:05-cv-1347, 1:05-cv-1353, 1:05-cv-1429, 1:05-cv- 1453, 1:05-cv-1457, 1:05-cv-1458, 1:05-cv-1487, 1:05-cv-1489 through 1:05-cv-1493, 1:05-cv- 1497, 1:05-cv-1504 through 1:05-cv-1506, 1:05-cv-1509, 1:05-cv-1555, 1:05-cv-1590, 1:05-cv- 1592, 1:05-cv-1601, 1:05-cv-1602, 1:05-cv-1607, 1:05-cv-1623, 1:05-cv-1635, 1:05-cv-1638, 

1:05-cv-1639, 1:05-cv-1641, 1:05-cv-1645, 1:05-cv-1646, 1:05-cv-1649, 1:05-cv-1666 through

1:05-cv-1669, 1:05-cv-1678, 1:05-cv-1679, 1:05-cv-1697, 1:05-cv-1704, 1:05-cv-1714, 1:05-cv- 1724, 1:05-cv-1725, 1:05-cv-1779, 1:05-cv-1806, 1:05-cv-1857, 1:05-cv-1864, 1:05-cv-1886, 

1:05-cv-1894, 1:05-cv-1971, 1:05-cv-1983, 1:05-cv-2010, 1:05-cv-2029, 1:05-cv-2053, 1:05-cv- 2083, 1:05-cv-2087, 1:05-cv-2088, 1:05-cv-2104, 1:05-cv-2112, 1:05-cv-2185, 1:05-cv-2186, 

1:05-cv-2197, 1:05-cv-2199, 1:05-cv-2200, 1:05-cv-2201, 1:05-cv-2216, 1:05-cv-2223, 1:05-cv- 2248, 1:05-cv-2249, 1:05-cv-2265, 1:05-cv-2336, 1:05-cv-2348, 1:05-cv-2349, 1:05-cv-2367, 

1:05-cv-2369 through 1:05-cv-2371, 1:05-cv-2376, 1:05-cv-2378 through 1:05-cv-2381, 1:05-cv- 2384 through 1:05-cv-2387, 1:05-cv-2398, 1:05-cv-2399, 1:05-cv-2427, 1:05-cv-2444, 1:05-cv- 2452, 1:05-cv-2458, 1:05-cv-2466, 1:05-cv-2467, 1:05-cv-2477, 1:05-cv-2479, 1:06-cv-618, 1:06- cv-619, 1:06-cv-1668, 1:06-cv-1674, 1:06-cv-1675 through 1:06-cv-1679, 1:06-cv-1681 through

1:06-cv-1691, 1:06-cv-1725, 1:06-cv-1752 through 1:06-cv-1754, 1:06-cv-1757 through 1:06-cv- 1761, 1:06-cv-1763, 1:06-cv-1765 through 1:06-cv-1769, 1:07-cv-1710, 1:07-cv-2337, 1:07-cv- 2338, 1:08-cv-864, and 1:08-cv-987.

An additional petition on behalf of Does 1 through 570 filed by the Center for Constitutional

Rights was dismissed for lack of standing. Opinion, Does v. Bush, No. 1:05-cv-313 (D.D.C. Oct. 31, 2006), available at 2006 WL 3096685. 1133. There were at least 55 detainees named in two cases each:

1. Omar Khadr in No. 1:04-cv-1136 was identified as Omar Ahmad in No. 1:05-cv-2386. 2. Riyad Atag Ali Abdoh al-Haj (Atag Ali Abdoh) in No. 1:04-cv-1194 was identified as

Riyadh Ateek Ali Abdu al-Haj in No. 1:05-cv-2399. 3. Mahmood Salim al-Mohammed in No. 1:05-cv-247 was identified as Mahmoud al- Soury in No. 1:05-cv-429. 4. Sherif el-Mashad and Adel Fattouh Aly Ahmed Algazzar in No. 1:05-cv-270 were 

identified as Ismail al-Mashad and Ahmed Abdul Rahman, respectively, in No. 1:05- cv-833. 5. Zahir Omar Khamis Bin Hamdoon in No. 1:05-cv-280 was identified as Zaher Omer

Bin Hamdoon in No. 1:05-cv-2223. 6. Majid Abdulla al-Joudi and Yousif Mohammad Mubarak al-Shehri in No. 1:05-cv-301

were identified as Maged and Yusuf Asshihri, respectively, in No. 1:05-cv-2386. 7. Ahmed Abdullah al-Wazan in No. 1:05-cv-329 was identified as Younis Shakur in No. 1:05-cv-764. 8. Thani Faris al-Anazi in No. 1:05-cv-345 was identified as Abdulal al-Thani in No. 1:05-cv-2386. 9. Mohammed Abdul Rahman in No. 1:05-cv-359 was identified as Mohammed Abdur

Rahman in No. 1:05-cv-2386.
136 National Security Case Management Studies (11/14/2011)

 10. Hassan al-Gassary, Muhammed Sidii, and Adel al-Hakeemy in No. 1:05-cv-429 were 

identified as Laheen Ikasrien in No. 1:05-cv-764, Mohammed al-Amin in No. 1:05-cv- 2336, and Adel Ben Ahmad al-Hakeemy in No. 1:05-cv-2386, respectively.

11. Abu Bakker Qassim in No. 1:05-cv-497 was identified as Abu Baker in No. 1:05-cv- 2386. 12. Muhammed Fahad al-Qahtany and Musa al-Madany in No. 1:05-cv-520 were identified 

as Fahad Nasser Mohammed al-Sultan Algahtani in No. 1:05-cv-2265 and Mishal al- Madany in No. 1:05-cv-2386, respectively. 13. Sulaiman Saad Mohaammed al-Oshan in No. 1:05-cv-533 was identified as Sulaiman

Saad Mohaammed al-Oshan in No. 1:05-cv-583. 14. Ahmed Errachidi in No. 1:05-cv-640 was identified as Ahmed Abu Imran in No. 1:05- cv-764. 15. Abdul Salam Zaeef in No. 1:05-cv-660 was identified as Abdul Salam Deiff in No. 

1:05-cv-2386. 16. Elham Battayav in No. 1:05-cv-714 was identified as Elham Bataif in No. 1:05-cv- 2386. 17. Salim Muhood Adem in No. 1:05-cv-723 was identified as Salim Mohammed Adam

Bin Amir in No. 1:05-cv-1724. 18. Najeeb al-Husseini in No. 1:05-cv-764 was identified as Najeeb in No. 1:05-cv-2386. 19. Chaman in No. 1:05-cv-887 was identified as Chaman Gul Khialigol in No. 1:05-cv- 2367. 20. Akhteyar Mohammad in No. 1:05-cv-996 was identified as Mohammad Akhtiar in No. 1:05-cv-1635. 21. Adel Hassan Hamad in No. 1:05-cv-1009 was identified as Adel Hassan in No. 1:05- cv-2386. 22. Haji Nasrat, Ali Shah Mousovi, Izaatullah Nusrat, and Sabar Lal in No. 1:05-cv-1124

were identified as Haji Nasrat in No. 1:05-cv-880, Syed Muhammad Ali Shah in No. 1:05-cv-1012, Ezatullah in No. 1:06-cv-1752, and Sabar Lal in No. 1:06-cv-1763, respectively.

23. Omar Mohammed Khalifh in No. 1:05-cv-1189 was identified as Omar Mohamad Khalifah in No. 1:05-cv-2386. 24. Ali Adel Motaleb Aweid al-Khaiy in No. 1:05-cv-1239 was identified as Abdul Zahir in 

No. 1:05-cv-1240. 25.Jawad Jabber Sadkhan in No. 1:05-cv-1487 was identified as Jawad Jabbar Sadkhan in

No. 1:05-cv-1679. 26. Faraj Abdl al-Hadi Omar Mahmoud in No. 1:05-cv-1490 was identified as Abdul Hadi

Omer Hamoud Faraj in No. 1:05-cv-1590. 27. Mohammed Amon in No. 1:05-cv-1493 was identified as Tooran Mohammad Amannullah in No. 1:05-cv-2367. 28. Shafiq in No. 1:05-cv-1506 was identified as Sofiane Mohammed Berhoumi in No. 1:05-cv-2386. 29. Ibrahim Osman Ibrahim Idris in No. 1:05-cv-1555 was identified as Abrahim Othman

Abrahim Edries in No. 1:05-cv-1725. 30. Hassan Bin Attash in 1:05-cv-1592 was identified as Omier Ba Atash in 1:05-cv-2386. 31. Hamid al-Razak in No. 1:06-cv-1601 was identified as Qari Hamdullah in No. 1:06-cv- 1691. 32. Ahmmed Ghulam Rabbani in No. 1:05-cv-1607 was identified as Ahmmed Ghulam

Rabbani in No. 1:05-cv-2386. 33. Hussain Salem Hohammed Almerfedi in No. 1:05-cv-1645 was identified as Hussein

Salem Mohammad Abdallah el-Marqodi in No. 1:05-cv-1649. 34. Abdannour Sameur in No. 1:05-cv-1806 was identified as Abdurrachman in No. 1:05- cv-2386.
National Security Case Management Studies (11/14/2011) 137

pro se. Most of the other petitions were filed by next friends, of which 26% were

brothers, 9% were fathers, 4% were wives, 4% were cousins, 6% were other specified family members (seven uncles, three nephews, two brothers-in-law, one

son, and one mother), 7% were family members of unspecified relationship, 34%

were other detainees, and 11% were other friends.

 35. Ravil Mingaza Gamil in No. 1:05-cv-2010 was identified as Ravil Mingazov in No. 1:05-cv-2479. 36. Dr. Abu Muhammed, also known as Fethi Boucetta, in No. 1:05-cv-2087 was identified 

as Abu Mohammed in No. 1:05-cv-2386. 37.Jabbarow Oybek Jamolivich in No. 1:05-cv-2112 was identified as Jabbarov Oybek

Jamolovich in No. 1:05-cv-2386. 38. Abdu al-Qader Hussain al-Mudafari in No. 1:05-cv-2185 was identified as Abdualqader 

Hossin Ali al-Mothafri in No. 1:05-cv-2200. 39. Ahmed Ben Bacha in No. 1:05-cv-2349 was identified as Ahmed Ben Bacha in No. 1:05-cv-2386. 40. Abdullah Ali Saleh Gerab Alsaaei in No. 1:05-cv-2369 was identified as Abdullah al- Sali al-Asoriya in No. 1:05-cv-2452. 41. Abdur Razakah in No. 1:05-cv-2370 was identified as Abdurazzak in No. 1:05-cv- 2386. 42. Abdul Hamid Abdul Salam al-Ghizzawi in 1:05-cv-2378 was identified as Abin Alhamed Abid Alsallam Alkesawi in 1:05-cv-2386. 43. Adel, Abdo Ali al-Haj, and Saif in No. 1:05-cv-2385 were identified as Adel, Shargowi, 

and Saif Ullah, respectively, in No. 1:05-cv-2386. 44. Sultan al-Shareef in No. 1:05-cv-2385 was identified as Fahd Umar Abdulmajid al- Shareef in No. 1:05-cv-2458. 45. Ali, Mohammed Rimi, Zein al-Abedeen, Abdul Rahman Abdo Abulghaith Sulaiman, and Ali in No. 1:05-cv-2386 were identified as Ali in 1:05-cv-2398, Mohammad Rimi

in No. 1:05-cv-2427, Zainulabidin Merozhev in No. 1:05-cv-2479, Abdullrahman Abdo 

Abo al-Ghith in No. 1:06-cv-1757, and Elisher in No. 1:06-cv-1759, respectively.

46. Alkhadr Abdullah al-Yafie and Tofiq Nasser Awad al-Bihani in No. 1:05-cv-2399 were 

also petitioners in No. 1:05-cv-2386. 47. Qari Saad Iqbal in No. 1:06-cv-1674 was also the petitioner in No. 1:06-cv-1688. At least eight detainees were named in three cases each:

1. Yousuf al-Karany in No. 1:05-cv-429 was identified as M.C. in No. 1:05-cv-430 and as

Mohmad Ahmad al-Kara'any in No. 1:05-cv-2336. 2. Ibrahim Towkah in No. 1:05-cv-429 was identified as Ibrahim Mahdi Ahmed Zaidan in

No. 1:05-cv-431 and as Ibraheem Zaidan in No. 1:05-cv-2386. 3. Abdul al-Hadi in No. 1:05-cv-429 was identified as Abdul Hadi Ibn el-Hathily al- Hamamy in No. 1:05-cv-766 and as Abdulhadi al-Hamami in No. 1:05-cv-2336. 4. Abdul Aziz al-Mossary in No. 1:05-cv-429 was identified as Abu Abdul Aziz in No. 1:05-cv-1864 and as Alla al-Mossary in No. 1:05-cv-2386. 5. Mohammedou Ould Salahi in No. 1:05-cv-569 was identified as Mohameduo Ould Slahi in No. 1:05-cv-881 and as Mohamedou Ould Slahi in No. 1:05-cv-995. 6. Ameur Mammar in No. 1:05-cv-573 and No. 1:05-cv-1233 was identified as Amer Mohammon in No. 1:05-cv-2386. 7. Abdulzaher in No. 1:05-cv-1236 was identified as Abdul Zahir in No. 1:05-cv-1623 and 

as Abdulkadr Abdulkhalik Dad in No. 1:05-cv-2083. 8. Ahsanullah Pirzai in No. 1:05-cv-1242 was identified as Ihsan Ullah Peerzai in No. 1:05-cv-1243 and as Ehsan Ullah in No. 1:05-cv-1311.
138 National Security Case Management Studies (11/14/2011)

Next Friend Validity

On April 1, 2005, the Center for Constitutional Rights filed a habeas petition for

Hazi Ahmed, listing fellow detainee Mohammed Mohammed Hassen as next

friend.1134 The Center had included Hassen as one of 14 petitioners in a July 27, 2004, petition.1135 On May 24, 2005, Judge Roberts ordered briefing on whether

the court should recognize Hassen as Ahmed s next friend specifically, whether 

Ahmed otherwise was without access to the court, noting that several detainees

had filed pro se petitions, and whether Hassen was sufficiently dedicated to

Ahmed s interests.1136 The government took no position on the issue, but noted, The Protective Order typically made applicable in the Guantanamo Bay habeas

cases permits counsel two visits with a detainee before an authorization of representation by the detainee must be provided to respondents. 1137 On the day after

the government s response, Judge Roberts signed a protective order, unopposed

approval of which had been pending since a week after the case was filed, and the 

protective order s incorporated procedures for counsel access to detainees provided, Counsel shall provide evidence of his or her authority to represent the detainee as soon as practicable and in any event no later than ten (10) days after the

conclusion of a second visit with the detainee. 1138 On August 8, the government

filed a return1139 pursuant to an order issued by Judge Roberts on July 8.1140

On August 31, the government filed a consolidated motion challenging the validity of fellow-detainee next friends in eight cases on behalf of nine detainees.1141

Judge Friedman denied the motion in the case before him.1142 Judges Huvelle,1143

Collyer,1144and Robertson

1145

referred the matter, by agreement, to Senior Judge

 1134. Petition, Ahmed v. Bush, No. 1:05-cv-665 (D.D.C. Apr. 1, 2005).

The Center for Constitutional Rights is the umbrella organization coordinating the Guantánamo pro bono project. Candace Gorman, My Experiences Representing a Guantánamo Detain- ee, Litig., Spring 2009, at 10, 10 (reflections by pro bono attorney who represented two Guantánamo Bay detainees).

1135. Petition, Abdah v. Bush, No. 1:04-cv-1254 (D.D.C. July 27, 2004) (identifying Hassen

as Mohamed Mohamed Hassan Odaini and his brother Bashir Mohamed Hassan Odaini as Hassen s next friend). 1136. Order, Ahmed, No. 1:05-cv-665 (D.D.C. May 24, 2005), available at 2005 WL

6066070; see Adem v. Bush, 425 F. Supp. 2d 7, 13 n.13 (D.D.C. 2006) (noting order).

1137. Government Response, Ahmed, No. 1:05-cv-665 (D.D.C. June 23, 2005); see Adem, 425 

F. Supp. 2d at 13.

1138. Protective Order, Ex. A at ¶ III.C.2, Ahmed, No. 1:05-cv-665 (D.D.C. June 24, 2005).

1139. Return, id. (Aug. 8, 2005).

1140. Order, id. (July 8, 2005).

1141. Motion, Nos. 1:05-cv-1458, 1:05-cv-1497, 1:05-cv-1504, 1:05-cv-1505, 1:05-cv-1506, 1:05-cv-1601, 1:05-cv-1635, 1:05-cv-1704 (D.D.C. Aug. 31, 2005).

1142. Sept. 26, 2005, Akhtiar Order, supra note 1103. 1143. Order, Doe v. Bush, No. 1:05-cv-1458 (D.D.C. Oct. 13, 2005).

1144. Order, Shafiq v. Bush, No. 1:05-cv-1506 (D.D.C. Oct. 25, 2005); Order, Al-Hawary v. Bush, No. 1:05-cv-1505 (D.D.C. Oct. 25, 2005); Order, Nabil v. Bush, No. 1:05-cv-1504 (D.D.C. Oct. 25, 2005).

1145. Order, Abu Kabir v. Bush, No. 1:05-cv-1704 (D.D.C. Nov. 1, 2005) (two detainees).
National Security Case Management Studies (11/14/2011) 139

Louis F. Oberdorfer. The motion in another case was mooted by an amended petition naming the detainee s mother as his next friend.1146

On September 23, the government filed a motion with Judge Bates challenging the validity of a fellow-detainee next friend in a case filed earlier that

month.1147 Approximately one week later, Judge Bates issued sua sponte an order

in another fellow-detainee next friend case to show cause why that case should

not be dismissed for lack of next-friend standing.1148 One week after that, the petitioner s attorneys submitted evidence of a meeting between counsel and the detainee petitioner, which was held after the petition was filed, so the action could

become a direct petition without the need for a next friend.1149 Judge Bates referred the September 23 motion to Judge Oberdorfer.1150

Judge Oberdorfer issued the requested order to show cause on November

4.1151 Judge Kessler issued a similar order to show cause on October 11,1152 and 

the court granted the government s motion to consolidate her order with Judge

Oberdorfer s.1153

Judge Oberdorfer s order to show cause included an order

that Petitioners and Respondents consult with Magistrate Judge Kay as soon as is practicable (but in any event before the [December 5, 2005,] hearing) to discuss how counsel for 

Petitioners may obtain access to the detainees who allegedly seek to be represented by

next friends to determine if the detainees will authorize counsel to represent them directly.1154

Judge Kay ordered the government to comply with applicable protective orders

and permit attorneys to meet with petitioners so that they could pursue petitions

 1146. Notice, Al-Wirghi v. Bush, No. 1:05-cv-1497 (D.D.C. Jan. 11, 2006); Amended Petition, 

id. (Dec. 1, 2005).

1147. Government Motion, Qasim v. Bush, No. 1:05-cv-1779 (D.D.C. Sept. 23, 2005) (petition by detainee Isa Ali al-Murbati as next friend of detainee Muhammed Qasim); see Petition, 

Almurbati v. Bush, No. 1:04-cv-1227 (D.D.C. July 22, 2004) (petition on behalf of six detainees, including Isa Ali Abdulla Almurbati, represented by his brother Mohamad Ali Abdulla Almurbati

as next friend).

1148. Order, Hamlily v. Bush, No. 1:05-cv-763 (D.D.C. Oct. 3, 2005); see Adem v. Bush, 425

F. Supp. 2d 7, 13 (D.D.C. 2006) (discussing order); Petition, Hamlily, No. 1:05-cv-763 (D.D.C. Apr. 15, 2005) (petition by detainee Shaker Aamer as next friend of detainee Adel Hamlily); see 

also Petition, Deghayes v. Bush, No. 1:04-cv-2215 (D.D.C. Dec. 22, 2004) (petition on behalf of

three detainees, including Shaker Abduraheem Aamer, by his father-in-law Saeed Ahmed Siddique as next friend).

1149. Response, Hamlily, No. 1:05-cv-763 (D.D.C. Oct. 11, 2005); see Adem, 425 F. Supp. 2d

at 13.

1150. Order, Qasim, No. 1:05-cv-1779 (D.D.C. Oct. 31, 2005).

1151. Order, Nos. 1:05-cv-1458, 1:05-cv-1504, 1:05-cv-1505, 1:05-cv-1506, 1:05-cv-1704, 1:05-cv-1779 (D.D.C. Nov. 4, 2005) [hereinafter Nov. 4, 2005, Oberdorfer Order].

1152. Order, Al-Razak v. Bush, No. 1:05-cv-1601 (D.D.C. Oct. 11, 2005).

1153. Order, id. (Nov. 22, 2005).

1154. Nov. 4, 2005, Oberdorfer Order, supra note 1151.
140 National Security Case Management Studies (11/14/2011)

directly without next friends, and this process began to moot the fellow-detainee- as-next-friend issue for these cases.1155

On March 10, 2009, Judge Sullivan dismissed a petition upon determining

that the detainee did not want to pursue his case because of his lack of confidence in the United States judicial process. 1156 Ghassan Abdullah al-Sharbi has

been at Guantánamo Bay since March 2002.1157 The government announced military-commission conspiracy charges against him on November 8, 2005.1158 On 

December 8, Abdullah al-Sharbi filed a habeas petition on behalf of his son.1159

The detainee refused to meet with the attorney his father found for him, but the

attorney endeavored to discover whether the refusal resulted from government

interference or coercion or from mental illness.1160 On August 8, 2008, the detain- ee wrote a letter to the court explaining in clear English that he did not want to

pursue a habeas action,1161 and the court received the letter on January 7, 2009.1162

The dismissal followed a closed 90-minute hearing that Judge Sullivan held on

March 6, at which al-Sharbi participated by video conference from Guantánamo

Bay.1163 Al-Sharbi has admitted to being a combatant against the United

States.1164

In 2010, Judges Bates1165and Leon

1166 dismissed petitions because they were

not authorized by the detainees.

Coordination Before Judge Hogan

By the time of the 2008 Boumediene decision, at least 200 petitioners had been

transferred to other countries, sometimes for release and sometimes for detention

and possible prosecution there.1167 Four petitioners were voluntarily dismissed

without prejudice.1168 Another two petitioners committed suicide.1169

 1155. See Report and Recommendation, Nos. 1:05-cv-1458, 1:05-cv-1504, 1:05-cv-1505, 1:05-cv-1506, 1:05-cv-1601, 1:05-cv-1704, 1:05-cv-1779 (D.D.C. Oct. 6, 2006) [hereinafter Oct. 6, 2006, Report and Recommendation].

1156. Al Sharbi v. Bush, 601 F. Supp. 2d 317, 319 (D.D.C. 2009).

1157. Id. at 318.

1158. See Neil A. Lewis, Pentagon Charges 5 More in Guantánamo Bay Camp, N.Y. Times, Nov. 8, 2005, at A22.

1159. Petition, Al-Sharbi v. Bush, No. 1:05-cv-2348 (D.D.C. Dec. 8, 2005); Al Sharbi, 601 F. Supp. 2d at 318.

1160. Al Sharbi, 601 F. Supp. 2d at 318.

1161. Letter, Al-Sharbi, No. 1:05-cv-2348 (D.D.C. Jan. 7, 2009).

1162. Docket Sheet, id. (Dec. 8, 2005); Al Sharbi, 601 F. Supp. 2d at 318.

1163. Al Sharbi, 601 F. Supp. 2d at 318 19.

1164. See Tim Golden, The Battle for Guantánamo, N.Y. Times, Sept. 17, 2006, at 660.

1165. Kuman v. Obama, 725 F. Supp. 2d 72 (D.D.C. 2010) (dismissing Ahmed Yaslam Said

Kuman s petition). 1166. Order, Sliti v. Obama, No. 1:05-cv-429 (D.D.C. Aug. 25, 2010), available at 2010 WL

3339182 (dismissing Adel al-Hakeemy s petition). 1167. Some have been released outright; more have been turned over to the custody of their

home governments. Cucullu, supra note 1040, at 53; see Inside Guantanamo (National Geographic DVD 2009); see also Fletcher & Stover, supra note 1022, at 93 115 (describing detain- ees experiences following their transfers). Compare Murat Kurnaz, Five Years of My Life 218

19 (2008) (report by a detainee that he was told that his release was contingent upon his signing an 
National Security Case Management Studies (11/14/2011) 141

 admission that he belonged to a terrorist organization but that he was released to freedom despite

his not signing the admission) with Fletcher & Stover, supra note 1022, at 89 90 (reporting that

detainees were falsely told that their release was contingent on signing a document, but the document was a promise not to join Al-Qaeda or the Taliban rather than an admission).

For 159 transfers, the government filed notices in the detainees habeas cases:

1. Eight: Notices, No. 1:02-cv-828 (D.D.C. Jan. 18, 2005, to Sept. 15, 2006) (Nasir Najr

Nasir Balud al-Mutayri, Abdullah al-Ajmi, Abdulaziz al-Shammari, Mohammed al- Dihani, Adil al-Zamil, Saad al-Azmi, Omar Rajab Amin, and Abdullah Kamal Abdullah Kamal al-Kandari to Kuwait).

2. One: Notice, No. 1:04-cv-1135 (D.D.C. Aug. 25, 2006) (Murat Kurnaz to Germany);

see Kurnaz, supra; Baher Azmy, Free at Last, in The Guantánamo Lawyers, supra note 

1023, at 346; Bernhard Docke, Lost and Found, in The Guantánamo Lawyers, supra

note 1023, at 297; Craig Whitlock, U.S. Frees Longtime Detainee, Wash. Post, Aug. 25, 

2006, at A9.

3. Six: Notices, No. 1:04-cv-1144 (D.D.C. Apr. 3 and Dec. 21, 2007) (Bisher al-Rawi and

Jamil el-Banna to the United Kingdom); Notice, Nos. 1:04-cv-1137, 1:04-cv-1144, and

1:04-cv-1897 (D.D.C. Jan. 25, 2005) (Feroz Ali Abbasi, Moazzam Begg, Richard Belmar, and Martin Mubanga to the United Kingdom); see Moazzam Begg, Enemy Combatant 345 74 (2006); Britain Detains 3 Men Freed by U.S., N.Y. Times, Dec. 20, 2007 

[hereinafter Britain Detains] (reporting on a transfer to Britain of el-Banna and Omar

Deghayes, a petitioner in No. 1:04-cv-2215; and one additional detainee, Adbenour

Samuer); Glenda Cooper, Last British Prisoners Leave Guantanamo, Wash. Post, Jan. 26, 2005, at A14 (reporting on the transfer of Abbasi, Begg, Belmar, and Mubanga);

Omonira-Oyekanmi & Finn, supra note 1037 (reporting on a British damages settlement paid to Abassi, el-Banna, Begg, Belmar, Mubanga, and al-Rawi); Craig Whitlock, Iraqi Resident of Britain to Leave Guantanamo, Wash. Post, Mar. 30, 2007, at A11 (reporting on the transfer of al-Rawi).

4. One: Notice, No. 1:04-cv-1194 (D.D.C. Dec. 20, 2006) (Ali Husayn al-Tays to Yemen).

5. Three: Notices, No. 1:04-cv-1227 (D.D.C. Oct. 26, 2006, to Aug. 10, 2007) (Salah Abdul Rasool al-Bloushi and Isa Ali Abdulla Almurbati to Bahrain and Jum ah Mohammed Abdullatif Aldossari to Saudi Arabia); see Joshua Colangelo-Bryan, Habeas 

on the Gate, Aftermath, in The Guantánamo Lawyers, supra note 1023, at 345 (concerning Jumah al-Dossari); Mahvish Rukhsana Khan, My Guantánamo Diary 298 97 

(2008) (same); Josh White, 16 Detainees Transferred from Guantanamo, Wash. Post, July 17, 2007, at A3 (same).

6. One: Notice, No. 1:04-cv-1254 (D.D.C. June 22, 2007) (Sadeq Mohammed Said to

Yemen).

7. Two: Notices, No. 1:04-cv-2215 (D.D.C. Feb. 9, 2006, and Dec. 21, 2007) (Jamal

Kiyemba to Uganda and Omar Deghayes to the United Kingdom); see Britain Detains, supra; Omonira-Oyekanmi & Finn, supra note 1037 (reporting on a British damages

settlement paid to Deghayes).

8. One: Notice, No. 1:05-cv-23 (D.D.C. Sept. 6, 2007) (Rami Bin Saad al-Oteibi to Saudi

Arabia).

9. Four: Notices, No. 1:05-cv-301 (D.D.C. June 27, 2006, to Dec. 31, 2007) (Abdulla Mohammad al-Ghanmi; Majid Abdulla al-Joudi, Maged in No. 1:05-cv-2386; Yousif Mohammad Mubarak al-Shehri, Yusuf Asshihri in No. 1:05-cv-2386; and Abdul-Hakim 

Abdul-Rahman al-Moosa to Saudi Arabia).

10. Five: Notices, No. 1:05-cv-345 (D.D.C. May 23, 2006, to Dec. 31, 2007) (Adel Egla

Hussan al-Nussairi; Ibrahim Suleiman al-Rubaish; Abdulla Thani Faris al-Anazi, Abdulal al-Thani in No. 1:05-cv-2336; Abdulaziz Sa ad Oshan; and Naief Fahad Mutlaq

al-Otaibi to Saudi Arabia).
142 National Security Case Management Studies (11/14/2011)

 11. Five: Notices, No. 1:05-cv-429 (D.D.C. Oct. 3, 2005, to Nov. 3, 2008) (Sami al-Laithi, 

also known as Abdul Aziz al-Mossary, Abu Abdul Aziz in No. 1:05-cv-1864 and Alla

al-Mossary in No. 1:05-cv-2336, to Egypt; Abdullah, later identified as Abdullah Bin

Omar al-Hajji, to Tunisia; Muhammed Sidii, Mohammed al-Amin in No. 1:05-cv-2336, to Mauritania; and Sami Muhyideen and Amir Yakub to Sudan); see Order at 2, Sliti v. Obama, No. 1:05-cv-429 (D.D.C. Nov. 18, 2009), available at 2009 WL 4251108 ( Al

Hajji is in prison in Tunisia, serving a sentence for an earlier conviction in that country. ); Agnieszka Fryszman, Wrong Side of History, in The Guantánamo Lawyers, supra note 1023, at 277, 279 (account by al-Amin s habeas attorney); William Glaberson, Cameraman Is Released from Guantánamo, N.Y. Times, May 2, 2008, at A14 (reporting on the transfer of Al-Jazeera cameraman Sami al-Hajj, identified in his petition as

Sami Muhyideen, to Sudan); John Robert Holland & Anna Cayton Holland-Edwards, 

Representing the Rightless, in The Guantánamo Lawyers, supra note 1023, at 289, 293

(according to al-Amin s habeas attorneys, Mohammed Al Amin is now living free. );

Josh White, 6 Detainees Repatriated by Military, Wash. Post, June 20, 2007, at A6

(concerning Abdullah Bin Omar).

12. Three: Notice, No. 1:05-cv-431 (D.D.C. Nov. 13, 2007) (Usama Hasan Abu Kabir;

Ahmad Hassan Jamil Suleiman; and Ibrahim Mahdi Ahmed Zaidan, Ibrahim Towkah in 

No. 1:05-cv-429 and Ibraheem Zaidan in No. 1:05-cv-2386, to Jordan).

13. One: Notice, No. 1:05-cv-454 (D.D.C. June 27, 2006) (Rashid Abdul Mosleh Qayed to

Saudi Arabia).

14. One: Notice, No. 1:05-cv-490 (D.D.C. June 27, 2006) (Abdul-Salam Gaithan Mureef

al-Shihry to Saudi Arabia).

15. Five: Notices, No. 1:05-cv-520 (D.D.C. July 20, 2005, to Dec. 31, 2007) (Saleh Abdulla al-Oshan; Musa al-Madany, Mishal al-Madany in No. 1:05-cv-2386; Muhammed Fahad al-Qahtany, Fahad Nasser Mohammed al-Sultan Algahtani in No. 1:05-cv-2265; 

Zaben Dhaher al-Shammari; and Abdullah Aali al-Otaibi to Saudi Arabia).

16. One: Notice, No. 1:05-cv-533 (D.D.C. Dec. 20, 2006) (Sulaiman Saad Mohaammed al- Oshan, also the petitioner in No. 1:05-cv-583, to Saudi Arabia).

17. One: Notice, No. 1:05-cv-584 (D.D.C. Nov. 13, 2007) (Murtadha Ali Magram to Saudi

Arabia).

18. One: Notice, No. 1:05-cv-586 (D.D.C. May 23, 2006) (Abdullah Ibrahim Abdullah al- Rashaidan to Saudi Arabia).

19. One: Notice, No. 1:05-cv-621 (D.D.C. Mar. 2, 2007) (Wahidof Abdul Mokit to Tajikistan).

20. One: Notice, No. 1:05-cv-640 (D.D.C. May 2, 2007) (Ahmed Errachidi, Ahmed Abu

Imran in No. 1:05-cv-764, to Morocco); see Christopher Chang, A Cook, Not a Gener- al, in The Guantánamo Lawyers, supra note 1023, at 349.

21. One: Notice, Nos. 1:05-cv-714 and 1:05-cv-2386 (D.D.C. Dec. 20, 2006) (Elham Battayav to Kazakhstan).

22. One: Notice, No. 1:05-cv-723 (D.D.C. Dec. 14, 2007) (Salim Muhood Adem, Salim

Mohammed Adam Bin Amir in No. 1:05-cv-1724, to Sudan).

23. Two: Notice, No. 1:05-cv-764 (D.D.C. May 5, 2008) (Said to Morocco); Notice, id. and 

No. 1:05-cv-2386 (D.D.C. Feb. 9, 2006) (Najeeb al-Husseini to Morocco).

24. One: Notice, No. 1:05-cv-795 (D.D.C. Oct. 5, 2007) (Sofian Ebrahim Hamad Hamoodah to Libya); see Order, id. (Nov. 23, 2009), available at 2009 WL 4251102 ( Hamoodah [is] apparently being detained by the Libyan government. ). 25. One: Notice, No. 1:05-cv-833 (D.D.C. Nov. 20, 2006) (Ala Abdel Maqsud Muhammad

Salim to Albania).

26. One: Notice, No. 1:05-cv-878 (D.D.C. May 5, 2008) (Rahmattullah to Afghanistan).

27. One: Notice, No. 1:05-cv-879 (D.D.C. Oct. 24, 2006) (Taj Mohammad to Afghanistan); 

see Mahvish Rukhsana Khan, My Guantánamo Diary 296 97 (2008).
National Security Case Management Studies (11/14/2011) 143

 28. One: Notice, No. 1:05-cv-880 (D.D.C. Aug. 29, 2006) (Haji Nasrat, also a petitioner in

No. 1:05-cv-1124, to Afghanistan).

29. One: Notice, No. 1:05-cv-882 (D.D.C. Nov. 13, 2007) (Fazil Rahman to Afghanistan).

30. One: Notice, No. 1:05-cv-884 (D.D.C. Oct. 5, 2007) (Muhibullah to Afghanistan).

31. One: Notice, No. 1:05-cv-885 (D.D.C. Oct. 5, 2007) (Alif Mohammad to Afghanistan).

32. One: Notice, No. 1:05-cv-887 (D.D.C. Dec. 14, 2007) (Chaman, Chaman Gul Khialigol 

in No. 1:05-cv-2367, to Afghanistan).

33. One: Notice, No. 1:05-cv-888 (D.D.C. Mar. 2, 2007) (Nazul Gul to Afghanistan).

34. One: Notice, No. 1:05-cv-890 (D.D.C. Feb. 9, 2006) (Sharbat Khan to Afghanistan).

35. One: Notice, No. 1:05-cv-891 (D.D.C. Oct. 5, 2007) (Nasrullah to Afghanistan).

36. One: Notice, No. 1:05-cv-997 (D.D.C. Feb. 9, 2006) (Khudaidad to Afghanistan).

37. One: Notice, No. 1:05-cv-1000 (D.D.C. Oct. 24, 2006) (Abib Sarajuddin to Afghanistan).

38. One: Notice, No. 1:05-cv-1001 (D.D.C. May 5, 2008) (Abdulla Mohammed Kahn to

Afghanistan).

39. One: Notice, No. 1:05-cv-1002 (D.D.C. Aug. 31, 2006) (Akhtar Mohammad to Afghanistan).

40. One: Notice, No. 1:05-cv-1008 (D.D.C. Oct. 24, 2006) (Habibullah Mangut to Afghanistan).

41. One: Notice, No. 1:05-cv-1009 (D.D.C. Dec. 14, 2007) (Adel Hassan Hamad, Adel

Hassan in No. 1:05-cv-2386, to Sudan); see Wax, supra note 91, at 327 28.

42. One: Notice, No. 1:05-cv-1010 (D.D.C. Oct. 24, 2006) (Mohabat Khan to Afghanistan); 

see Order, id. (Nov. 23, 2009), available at 2009 WL 4251091 ( Khan s current where- abouts is unknown, but his counsel suspects he may be in custody in Afghanistan. ). 43. One: Notice, No. 1:05-cv-1013 (D.D.C. Feb. 9, 2006) (Abdul Salaam to Afghanistan).

44. Two: Notices, No. 1:05-cv-1124 (D.D.C. Oct. 24, 2006, and May 5, 2008) (Ali Shah

Mousovi, Syed Syed Muhammad Ali Shah in No. 1:05-cv-1012, and Haji Rohullah

Wakil to Afghanistan); see Mahvish Rukhsana Khan, My Guantánamo Diary 281 89 

(2008) (concerning Mousovi).

45. One: Notice, No. 1:05-cv-1235 (D.D.C. Feb. 9, 2006) (Abdul Baqi to Afghanistan).

46. One: Notice, No. 1:05-cv-1237 (D.D.C. Aug. 10, 2007) (Aminullah to Afghanistan).

47. One: Notice, No. 1:05-cv-1238 (D.D.C. Mar. 2, 2007) (Haji Ghalib to Afghanistan).

48. One: Notice, No. 1:05-cv-1242 (D.D.C. Aug. 29, 2006) (Ahsanullah Pirzai, Ihsan Ullah

Peerzai in No. 1:05-cv-1243 and Ehsan Ullah in No. 1:05-cv-1311, to Afghanistan).

49. One: Notice, No. 1:05-cv-1246 (D.D.C. Oct. 24, 2006) (Abdul Majid Mohammadi to

Iran).

50. One: Notice, No. 1:05-cv-1453 (D.D.C. Feb. 22, 2007) (Nasser Mazyad Abdullah al- Subaiy to Saudi Arabia).

51. One: Notice, No. 1:05-cv-1489 (D.D.C. Oct. 24, 2006) (Faizullah to Afghanistan).

52. One: Notice, No. 1:05-cv-1491 (D.D.C. Oct. 24, 2006) (Sawat Khan to Afghanistan).

53. One: Notice, No. 1:05-cv-1492 (D.D.C. Oct. 5, 2007) (Abdul Ahmad to Afghanistan).

54. One: Notice, No. 1:05-cv-1493 (D.D.C. Oct. 24, 2006) (Mohammed Amon to Afghanistan).

55. One: Notice, No. 1:05-cv-1509 (D.D.C. June 27, 2006) (Saddiq Ahmed Turkistani to

Saudi Arabia).

56. One: Notice, No. 1:05-cv-1635 (D.D.C. Dec. 20, 2006) (Mohammad Akhtiar, Akhteyar

Mohammad in No. 1:05-cv-996, to Afghanistan).

57. Three: Notices, No. 1:05-cv-1641 (D.D.C. June 27 to Dec. 20, 2006) (Abdulaziz Abdulrahman al-Badah, Ibrahim Mohammed al-Naser, and Abdulaziz Mohammed al-Naser 

to Saudi Ariabia).

58. One: Notice, No. 1:05-cv-1666 (D.D.C. Dec. 31, 2007) (Ziyad Bin Salih Bin Muhammad al-Bahooth to Saudi Arabia).
144 National Security Case Management Studies (11/14/2011)

 59. One: Notice, No. 1:05-cv-1667 (D.D.C. May 23, 2006) (Abdul-Hadi Muhammed al- Siba i to Saudi Arabia).

60. One: Notice, No. 1:05-cv-1668 (D.D.C. May 23, 2006) (Rashid Awadh Rashid al- Uwaidah to Saudi Arabia).

61. One: Notice, No. 1:05-cv-1669 (D.D.C. May 23, 2006) (Fahd Bin Salih Bin Sulaiman

al-Jutaili to Saudi Arabia).

62. One: Notice, No. 1:05-cv-1697 (D.D.C. Oct. 24, 2006) (Kadeer Khandan to Afghanistan).

63. One: Notice, No. 1:05-cv-1714 (D.D.C. Dec. 20, 2006) (Yousif Abdullah al-Rubaish to

Saudi Arabia).

64. One: Notice, No. 1:05-cv-1779 (D.D.C. Nov. 13, 2007) (Muhammed Qasim to Afghanistan); see Sahr Muhammed Ally, Speaking Through Holes in Glass, in The Guantánamo Lawyers, supra note 1023, at 339, 340.

65. One: Notice, No. 1:05-cv-1806 (D.D.C. Dec. 21, 2007) (Abdannour Sameur, Abdurrachman in No. 1:05-cv-2386, to the United Kingdom).

66. Three: Notice, No. 1:05-cv-1886 (D.D.C. May 5, 2006) (Ayoub Haji Mamet, Aktar

Doe, and Ahmad Doe to Albania).

67. One: Notice, No. 1:05-cv-1894 (D.D.C. June 22, 2007) (Fawaz Naman Hamoud to

Yemen).

68. One: Notice, No. 1:05-cv-2029 (D.D.C. July 17, 2007) (Bender Ayed Hamoud Hezam

al-Oteibi al-Shabany to Saudi Arabia).

69. One: Notice, No. 1:05-cv-2053 (D.D.C. Nov. 20, 2006) (Zakirjan to Albania).

70. One: Notice, No. 1:05-cv-2087 (D.D.C. Nov. 20, 2006) (Dr. Abu Muhammed, Dr. Abu

Mohammed in No. 1:05-cv-1886, and also known as Fethi Boucetta, to Albania); see

Anne Castle, Trip Mackintosh & Scott Barker, Stateless, in The Guantánamo Lawyers, supra note 1023, at 335.

71. One: Notice, No. 1:05-cv-2104 (D.D.C. Dec. 20, 2006) (Issam Hamid Ali Bin Ali al- Jayfi to Yemen).

72. One: Notice, No. 1:05-cv-2197 (D.D.C. Dec. 20, 2006) (Mohammed Ahmed Ali al- Asadi to Yemen).

73. Two: Notices, No. 1:05-cv-2201 (D.D.C. Sept. 7 to Nov. 13, 2007) (Muhammed Mubarak al-Kurbi and Naif Abdulla al-Nakheelan to Saudi Arabia).

74. Three: Notices, No. 1:05-cv-2216 (D.D.C. May 23 to July 17, 2007) (Alghamdi Abdulrahman Othman A, Mohammed Bin Jaied Bin Aladi al-Mohammed al-Subaie, and Bijad Defalla Oteibi to Saudi Arabia).

75. One: Notice, No. 1:05-cv-2248 (D.D.C. June 27, 2006) (Saleh Zaid al-Khatemi to Saudi 

Arabia).

76. Four: Notice, No. 1:05-cv-2367 (D.D.C. Dec. 14, 2007) (Ghulam Roohani, Abdullah

Wazir Zadran, Dr. Hiyatullah, and Abdullah Mujahid Haq to Afghanistan); see Mahvish Rukhsana Khan, My Guantánamo Diary 245 49 (2008) (reporting that Mujahid

was informed that his transfer was imminent 10 months before it occurred); Sahr Muhammed Ally, Speaking Through Holes in Glass, in The Guantánamo Lawyers, supra

note 1023, at 339, 340 (concerning Ghulam Roohani and Abdullah Wazir).

77. One: Notice, No. 1:05-cv-2369, (D.D.C. Dec. 20, 2006) (Abdullah Ali Saleh Gerab Alsaaei, Abdullah al-Sali al-Asoriya in No. 1:05-cv-2452, to Saudi Arabia).

78. One: Notice, No. 1:05-cv-2376 (D.D.C. Oct. 24, 2006) (Abdul Haleem to Pakistan).

79. Three: Notices, No. 1:05-cv-2384 (D.D.C. Dec. 20, 2006, to Sept. 7, 2007) (Anwar

Handan al-Shimmiri, Bandar al-Jaabir, and Salim Said to Saudi Arabia).

80. Sixteen: Notices, No. 1:05-cv-2386 (D.D.C. May 23, 2006, to May 5, 2008) (Saleh

Mohammed Ali Azoba, Abdullah al-Quatany, Slaim Harbi, Seed Farha, Fahd al- Haraazi, Fahd al-Fawzan, Khald al-Barkati, Mohammed Harbi, Jabir al-Quatany, and

Sad al-Materi to Saudi Arabia; Abdullah to Kazakhstan; Mohsen and Ali al-Kazmi to
National Security Case Management Studies (11/14/2011) 145

 Yemen; Omar to Afghanistan; and Waleed to Sudan); Notice, id. and 1:05-cv-2427

(D.D.C. Dec. 20, 2006) (Mohammed Rimi to Libya); see Order, Rimi v. Obama., No. 1:05-cv-2427 (D.D.C. Nov. 23, 2009), available at 2009 WL 4251097 (Muhammad 

Abdallah Mansur al-Futuri Rimi is apparently being detained by the Libyan government. ). 81. Two: Notice, No. 1:05-cv-2458 (D.D.C. Nov. 13, 2007) (Fahd Umar Abdulmajid al- Shareef, Sultan al-Shareef in No. 1:05-cv-2385, and Hani Saeed Mohammed Banan al- Kalf al-Gamdi to Saudi Arabia).

82. One: Notice, No. 1:05-cv-2466 (D.D.C. Oct. 24, 2006) (Anwar Khan to Afghanistan).

83. One: Notice, No. 1:05-cv-2467 (D.D.C. Dec. 20, 2006) (Mubark Hussein to Bangladesh).

84. One: Notice, No. 1:05-cv-2479 (D.D.C. July 17, 2007) (Ghanim-Abdulrahman al-Harbi 

to Saudi Arabia); see Lefrak, supra note 1093. 85. One: Notice, No. 1:06-cv-1675 (D.D.C. Dec. 29, 2006) (Wasim to Saudi Arabia).

86. One: Notice, No. 1:06-cv-1679 (D.D.C. Dec. 14, 2007) (Abdul Matin to Afghanistan).

87. One: Notice, No. 1:06-cv-1681 (D.D.C. May 5, 2008) (Sangar Yar Mullah Rahmattullah to Afghanistan).

88. One: Notice, No. 1:06-cv-1682 (D.D.C. Dec. 26, 2006) (Quari Ismatullah to Afghanistan).

89. One: Notice, No. 1:06-cv-1683 (D.D.C. Aug. 10, 2007) (Mohammed Mosa Yaakoobi to 

Afghanistan).

90. One: Notice, No. 1:06-cv-1685 (D.D.C. Dec. 14, 2007) (Abdul Gafoor Akhouzada to

Afghanistan).

91. One: Notice, No. 1:06-cv-1686 (D.D.C. May 2, 2007) (Azeemullah to Afghanistan).

92. One: Notice, No. 1:06-cv-1687 (D.D.C. Dec. 14, 2007) (Ameenullah Toukh to Afghanistan).

93. One: Notice, No. 1:06-cv-1689 (D.D.C. Nov. 13, 2007) (Naseer to Afghanistan).

94. One: Notice, No. 1:06-cv-1752 (D.D.C. Nov. 13, 2007) (Ezatullah, Izaatullah Nusrat in

No. 1:05-cv-1124, to Afghanistan); see Sahr Muhammed Ally, Speaking Through

Holes in Glass, in The Guantánamo Lawyers, supra note 1023, at 339, 340.

95. One: Notice, No. 1:06-cv-1753 (D.D.C. Nov. 13, 2007) (Abdulah Hakmat to Afghanistan).

96. One: Notice, No. 1:06-cv-1763 (D.D.C. Oct. 5, 2007) (Sabar Lal to Afghanistan).

97. One: Notice, No. 1:06-cv-1769 (D.D.C. Dec. 31, 2007) (Khaled Mallouh Shaye Algahtani to Saudi Arabia).

There were 11 other transfers noted in voluntary dismissals:

1. Two: Notice, No. 1:02-cv-299 (D.D.C. Aug. 30, 2007) (Shafiq Rasul and Asif Iqbal to

the United Kingdom).

2. Three: Status Report, No. 1:04-cv-1142 (D.D.C. July 18, 2008) (Ridouane Khalid, also

a petitioner in No. 1:04-cv-547); Consent Motion, id. (Sept. 21, 2004) (Mourad Benchellali and Nizar Sassi, also a petitioner in No. 1:04-cv-547); see Steven Erlanger, France Clears 5 Ex-Inmates Whom U.S. Held in Cuba, N.Y. Times, Feb. 25, 2009, at

A5 (discussing transfers to France of Khalid; Benchellali; Sassi; Khaled Ben Mustapha, a petitioner in No. 1:05-cv-22; and one additional detainee, Brahim Yadel); see also

Wesley R. Powell, Preserving Our Image, in The Guantánamo Lawyers, supra note 

1023, at 296, 296 ( all the French detainees were released by early 2005 ). 3. Three: Status Report, No. 1:05-cv-429 (D.D.C. July 18, 2008) (in addition to other detainees otherwise accounted for, Adel Turkestani to Albania, Ibrahim Fauzee to Maldives, and Hassan al-Gassary to Spain).

4. One: Status Report, No. 1:05-cv-431 (D.D.C. July 18, 2008) (in addition to other detainees otherwise accounted for, Khalid Mahmood Alasmar to Jordan).
146 National Security Case Management Studies (11/14/2011)

 5. One: Notice, No. 1:06-cv-1754 (D.D.C. Jan. 4, 2007) (al-Hasan Legseirein to Saudi

Arabia).

6. One: Motion, No. 1:06-cv-1760 (D.D.C. Aug. 9, 2007) (Mohammed Gul to Afghanistan).

A July 14, 2008, status report, Status Report, In re Petitioners Seeking Habeas Corpus Relief, No. 1:08-mc-444 (D.D.C. July 14, 2008) (tallying 127 transfers, but counting three detainees twice 

each and another detainee three times), noted 16 transfers not otherwise accounted for:

1. One: No. 1:02-cv-299 (David Hicks to Australia).

2. One: No. 1:02-cv-1130 (Mamdouh Habib to Australia); see Jeffrey M. Strauss, Family 

Photo, in The Guantánamo Lawyers, supra note 1023, at 358, 360,.

3. Three: No. 1:04-cv-1227 (Adel Kamel Abdulla Hajee, Abdullah Majed Sayyah Hasan

Alnoaimi, and Salman Bin Ibrahim Bin Mohammed Bin Ali al-Khalifa to Bahrain).

4. One: No. 1:05-cv-22 (Khaled Ben Mustapha to France).

5. Two: No. 1:05-cv-497 (Abu Bakker Qassim, Abu Baker in No. 1:05-cv-2386, and

A del Abdu al-Hakim to Albania).

6. One: No. 1:05-cv-551 (Majid Radhi al-Toume al-Shamri to Saudi Arabia).

7. One: No. 1:05-cv-660 (Abdul Salam Zaeef, Abdul Salam Deiff in No. 1:05-cv-2386, to

Afghanistan); see Mahvish Rukhsana Khan, My Guantánamo Diary 134 41 (2008) (describing Zaeef as a former Taliban ambassador).

8. One: No. 1:05-cv-665 (Hazi Ahmed to France).

9. One: No. 1:05-cv-1011 (Abdul Zuhoor to Afghanistan).

10. One: No. 1:05-cv-1241 (Abdul Hakim Abdul Karim Amin Bukhari to Saudi Arabia).

11. One: No. 1:05-cv-1677 (Mohammed Naseem to Afghanistan).

12. One: No. 1:05-cv-1678 (Gulbas Khan to Afghanistan).

13. One: No. 1:05-cv-1768 (Saed Farhan al-Maliki to Saudi Arabia).

An April 19, 2007, motion filed simultaneously in several cases, e.g., Motion To Dismiss, Abu 

Imran v. Bush, No. 1:05-cv-764 (D.D.C. Apr. 19, 2007), noted an additional nine transfers not

otherwise accounted for:

1. Four: No. 1:05-cv-764 (Mohammed Mazoz, Moussa, Ridouane Shakur, and Tareq).

2. Three: No. 1:05-cv-2385 (Abd al-Rahman Abdullah al-Halmandy, Inshanullah, and

Shamsullah).

3. Two: No. 1:05-cv-2386 (Saalih and Hamad).

The transfers of an additional three petitioners were noted in other sources:

1. One: See Steven Erlanger, France Clears 5 Ex-Inmates Whom U.S. Held in Cuba, N.Y. Times, Feb. 25, 2009, at A5 (Khaled Ben Mustapha, petitioner in No. 1:05-cv-22, to

France).

2. Two: Qassim v. Bush, 466 F.3d 1073 (D.C. Cir. 2006) (noting release in Albania of two 

ethnic Uighurs found not to be enemy combatants, petitioners in No. 1:05-cv-497: Abu 

Bakker Qassim, Abu Baker in No. 1:05-cv-2386, and A del Abdu al-Hakim,).

Two additional transfers are reported in the New York Times online database of Guantánamo

Bay detainee information, http://projects.nytimes.com/guantanamo:

1. One: Hammad Ali Amno Gadallah, petitioner in No. 1:05-cv-2386, to Sudan on July

19, 2005.

2. One: Salih Uyar, petitioner in No. 1:05-cv-2386, to Turkey on April 18, 2005.

1168. Notice, No. 1:06-cv-1676 (D.D.C. Nov. 6, 2006) (Naseer); Notice, No. 1:05-cv-2444

(D.D.C. Sept. 20, 2006) (Talal Ahmed Mohammed Ali Almjrd); Stipulation, No. 1:05-cv-1124

(D.D.C. Oct. 26, 2005) (Abd al-Rahman and Abdul Rahman Aziz Khan).

1169. Notice, No. 1:05-cv-1857 (D.D.C. June 12, 2006) (Mani Shaman Turki al-Habardi al- Utaybi); Notice, No. 1:05-cv-2452 (D.D.C. June 12, 2006) (Saleh Ali Abdullah al-Salami); see 

George Daly, Don t Take It Personally, in The Guantánamo Lawyers, supra note 1023, at 282 (reflections on al-Utaybe s suicide by his habeas attorney); Jeffrey Davis, Pending Release, id. at 283 
National Security Case Management Studies (11/14/2011) 147

(Since then, at least 76 additional petitioners have been transferred from

Guantánamo Bay,1170 three have been dismissed without prejudice,1171and three

have died.1172)

 (same); see Mahvish Rukhsana Khan, My Guantánamo Diary 153 65 (2008) (reflections on al- Salami s suicide by his legal interpreter). 1170. There were 59 transfers documented by notices of transfer in the detainees habeas cases:

1. Two: Notices, No. 1:02-cv-828 (D.D.C. Oct. 9 and Dec. 14, 2009) (Khalid Bin Abdullah al-Mutairi and Fouad al-Rabiah to Kuwait); see Carol Rosenberg, Guantánamo Detainees Sent to Kuwait, Belgium, Miami Herald, Oct. 9, 2009 (al-Mutairi).

2. One: Notice, No. 1:04-cv-1166 (D.D.C. Dec. 1, 2009) (Saber Lahmar to France).

3. One: Notice, No. 1:04-cv-1194 (D.D.C. Dec. 22, 2009) (noting Abd al-Hakim Ahmad

Alhag s transfer to Yemen, but this appears to be an error and an intended notice concerning Riyad Atiq Ali Abdu al-Haj al-Radai).

4. Three: Notice, No. 1:04-cv-1254 (D.D.C. Dec. 22, 2009, and July 13, 2010) (Faruq Ali

Ahmed, Jamal Muhammad Alawi Mar I, and Mohamed Mohamed Hassan Odaini to

Yemen).

5. One: Notice, No. 1:04-cv-2035 (D.D.C. July 29, 2008) (Jarallah al-Marri to Qatar).

6. One: Notice, No. 1:04-cv-2046 (D.D.C. Jan. 22, 2010) (Ahcene Zemirito to Algeria).

7. One: Notice, No. 1:05-cv-270 (D.D.C. Feb. 24, 2010) (Sherif el-Mashad to Albania).

8. One: Notice, No. 1:05-cv-409 (D.D.C. Dec. 22, 2009) (Ayman Saeed Batarfi to Yemen).

9. Three: Notice, No. 1:05-cv-429 (D.D.C. Oct. 9, 2008, to June 11, 2009) (Mustafa Ibrahim to Sudan; Ahmad Abu Abduttawaab to Somaliland; and Mohammed el-Gharani, 

M.C. in No. 1:05-cv-430 and Mohmad Ahmad al-Kara'any in No. 1:05-cv-2386, to

Chad).

10. Two: Notices, No. 1:05-cv-526 (D.D.C. Aug. 30, 2009, to July 19, 2010) (Mohammed

Khan Tumani to Portugal and Abd al-Nasir Khan Tumani to Cape Verde).

11. One: Notice, No. 1:05-cv-573 (D.D.C. Oct. 9, 2008) (Ameur Mammar, also the petitioner in No. 1:05-cv-1233 and Amer Mohammon in No. 1:05-cv-2386, to Algeria).

12. One: Notice, No. 1:05-cv-763 (D.D.C. Jan. 22, 2010) (Adel Hamlily to Algeria).

13. One: Notice, No. 1:05-cv-765 (D.D.C. Feb. 23, 2009) (Benjamin Mohammed al- Habashi to United Kingdom); see Yvonne R. Bradley, A Rigged Process, in The Guantánamo Lawyers, supra note 1023, at 173, 176 ( Ironically, he was flown to freedom

from Guantánamo to the United Kingdom on the same type of Gulfstream aircraft that

the CIA commandeered from Jeppesen Dataplan to fly him across the Middle East for

torture and rendition. ). 14. One: Status Report, No. 1:05-cv-886 (D.D.C. Sept. 2, 2008) (Abdul Wahab to Afghanistan).

15. One: Notice, No. 1:05-cv-998 (D.D.C. Jan. 21, 2009) (Arkan Mohammad Ghafil al- Karim to Iraq).

16. One: Notice, No. 1:05-cv-1220 (D.D.C. Feb. 24, 2010) (Abu Abdul Rauf Zalita to Albania).

17. One: Notice, No. 1:05-cv-1234 (D.D.C. Nov. 10, 2008) (Labed Ahmed to Algeria).

18. One: Notice, No. 1:05-cv-1239 (D.D.C. Jan. 21, 2009) (Ali Adel Motaleb Aweid al- Khaiy, Ali Abdulmotalib Aweid Hassan Altaiy in No. 1:05-cv-1240, to Iraq).

19. One: Notice, No. 1:05-cv-1347 (D.D.C. Jan. 7, 2011) (Farhi Saeed Bin Mohammed to

Algeria).

20. One: Notice, No. 1:05-cv-1487 (D.D.C. June 11, 2009) (Jawad Jabbar Sadkhan, also

the petitioner in No. 1:05-cv-1679, to Iraq).
148 National Security Case Management Studies (11/14/2011)

 21. One: Notice, No. 1:05-cv-1505 (D.D.C. Nov. 10, 2008) (Abbar Sufian al-Hawary to

Algeria).

22. Four: Notice, No. 1:05-cv-1509 (D.D.C. June 11, 2009) (Abdul Nasser, Jalal Jaladin, Abdul Semet, and Huzaifa Parhat to Bermuda).

23. Six: Notice, No. 1:05-cv-1602, 1:05-cv-2370, 1:05-cv-2398, and 1:08-cv-1310 (D.D.C. 

Nov. 2, 2009) (Ahmad Tourson; Abdul Ghappar Abdul Rahman; Edham Mamet; Anwar Hassan, also a petitioner in No. 1:05-cv-2386; Dawut Abdurehim; and Adel Noori

to Palau).

24. One: Notice, No. 1:05-cv-1678 (D.D.C. Sept. 28, 2009) (Alla Ali Bin Ali Ahmed to

Yemen).

25. One: Notice, No. 1:05-cv-2367 (D.D.C. Dec. 22, 2009) (Mohammad Rahim to Afghanistan).

26. Two: Notices, No. 1:05-cv-2385 (D.D.C. Sept. 2, 2008, to Dec. 2, 2009) (Muhammed

Saad Iqbal Madni to Pakistan and Riad Nargeri to Italy).

27. Four: Notices, No. 1:05-cv-2386 (D.D.C. June 15, 2009, to July 19, 2010) (Abdul Aziz

al-Noofayaee to Saudi Arabia, Adel Bin Mabrouk to Italy, Saif Ullah to Albania, and

Abdul Aziz Naji to Algeria).

28. One: Notice, No. 1:05-cv-2479 (D.D.C. Oct. 31, 2008) (Zainulabidin Merozhev to Tajikistan).

29. One: Notice, No. 1:06-cv-618 (D.D.C. Sept. 1, 2008) (Abdulli Feghoul to Algeria); see

Christi Charpentier, Bittersweet, in The Guantánamo Lawyers, supra note 1023, at 348.

30. One: Notice, No. 1:06-cv-619 (D.D.C. Jan. 21, 2009) (Abbas Abid Rumi to Iraq).

31. One: Notice, No. 1:06-cv-1684 (D.D.C. Dec. 22, 2009) (Mohammad Ahmed Taher to

Yemen).

32. One: Notice, No. 1:08-cv-987 (D.D.C. Aug. 30, 2009) (Moammar Badawi Dokhan to

Portugal). 33. One: Notice, No. 1:08-cv-1104 (D.D.C. Jan. 21, 2009) (Bashir Ghalaab to Algeria).

34. One: Notice, No. 1:08-cv-1153 (D.D.C. Dec. 22, 2009) (Mohammed Sulaymon to Somaliland).

35. One: Notice, No. 1:08-cv-1185 (D.D.C. Sept. 1, 2008) (Mohammed Abd-Al al-Qadir to 

Algeria).

36. One: Notice, No. 1:08-cv-1222 (D.D.C. Dec. 22, 2009) (Sharifullah to Afghanistan).

37. One: Notice, No. 1:08-cv-1223 (D.D.C. Sept. 2, 2008) (Mahbub Rahman to Afghanistan).

38. Two: Notice, Nos. 1:08-cv-1229 and 1:08-cv-1231 (D.D.C. Aug. 1, 2008) (Yakubi to

Afghanistan and Abdulah Alhamiri to United Arab Emirates).

39. One: Notice, No. 1:08-cv-1230 (D.D.C. June 15, 2009) (Khalid Said Mohammed al- Saif to Saudi Arabia).

40. One: Notice, No. 1:08-cv-1789 (D.D.C. Dec. 22, 2009) (Ismail Mohamed to Somaliland).

One transfer was noted in an order by the court of appeals: Order, No. 09-5254 (D.C. Cir. Aug. 

17, 2010) (Ayman Mohammed Ahmed al-Shurfa, petitioner in the district court, No. 1:05-cv-431).

Six additional transfers were noted in reports by news media:

1. One: Peter Finn & Julie Tate, Freed Algerian Detainee Flown to France, Wash. Post, May 16, 2009, at A1 (reporting on transfer of Lakhdar Boumediene, petitioner in No. 1:04-cv-1166, to France); see also Mark. C. Fleming, A Stunning Reversal, in The 

Guantánamo Lawyers, supra note 1023, at 219, 221 ( the first time a European country

accepted a Guantánamo prisoner who was neither its citizen nor its former resident );

Hafetz, supra note 502, at 248.

2. Three: William Glaberson, U.S. Is Set to Release 3 Detainees From Base, N.Y. Times, Dec. 16, 2008, at A28 (reporting on the release of Mohammed Nechle, Hadj Boudella, and Mustafa Ait Idir, petitioners in No. 1:04-cv-1166, to Bosnia and Herzegovina).
National Security Case Management Studies (11/14/2011) 149

Approximately three weeks after the Supreme Court s Boumediene decision, 

by which time another four petitions on behalf of four detainees had been

filed,1173 the district court decided, in executive session, that Judge Hogan, who

had recently assumed senior status, would handle coordination and management

of all Guantánamo Bay habeas petitions,1174with the exception of Hamdan s petition and nine cases assigned to Judge Leon, who opted out of the coordination

 3. One: Mónica Ceberio Belaza, Al Qaeda Will Kill Me if I Go Home, El País, June 29, 2010, at 3 (reporting on the transfer of the petitioner in No. 1:05-cv-889 to Spain).

4. One: Guantánamo Detainee Released, N.Y. Times, Aug. 25, 2009, at A8 (reporting on

the release of Mohammed Jawad, petitioner in No. 1:05-cv-2385, to Afghanistan).

There are 10 additional transfers reported in the New York Times online database of Guantánamo Bay detainee information, http://projects.nytimes.com/guantanamo:

1. One: Adel Fattough Ali Algazzar, petitioner in Nos. 1:05-cv-270 and 1:05-cv-833, to

Slovakia on January 24, 2010.

2. One: Rafiq Bin Bashir Bin Jallul Alhami, petitioner in No. 1:05-cv-359, to Slovakia on

January 24, 2010.

3. One: Abdul Rahim Abdul Razak al-Janko, petitioner in Nos. 1:05-cv-1310 and 1:10-cv- 1702 (damages case), to Belgium on October 9, 2009.

4. Two: Bahtiyar Mahnut, identified as Sadar, and Arkin Mahmud, identified as Arkeen, petitioners in No. 1:05-cv-1704, to Switzerland on March 23, 2010.

5. One: Oybek Jamoldinivich Jabbarov, petitioner in Nos. 1:05-cv-2112 and 1:05-cv- 2386, to Ireland on September 27, 2009.

6. One: Abin Alhamed Abid Alsallam Alkesawi, petitioner in Nos. 1:05-cv-2378 and 

1:05-cv-2386, to Georgia on March 23, 2010.

7. One: Abd al-Zaher, petitioner in No. 1:05-cv-2386, to Slovakia on January 24, 2010.

8. One: Mohammed al-Palestini, petitioner in No. 1:05-cv-2386, to Spain on February 24, 2010.

9. One: Qari Saad Iqbal, petitioner in No. 1:06-cv-1674, to Pakistan on August 31, 2008.

On April 25, 2011, the government reported that 604 detainees had been transferred from 

Guantánamo Bay since the detention facility had been opened. Geoff Morrell & Dan Fried, A 

Statement by the United States Government, N.Y. Times, Apr. 25, 2011, at A11.

1171. Order, Mattan v. Obama, No. 1:09-cv-745 (D.D.C. Oct. 28, 2011) (dismissing the petition of Sharqawi Abdu Ali al-Hajj, Abdo Ali al-Haj in No. 1:05-cv-2385 and Shargowi in No. 1:05-cv-2386); Notice, Abdessalam v. Obama, No. 1:06-cv-1761 (D.D.C. Oct. 4, 2011) (withdrawing the petition of Achraf Salim Abdessalam); Notice, Albkri v. Bush, No. 1:05-cv-1639 

(D.D.C. July 18, 2008) (withdrawing the petition of Ameen Mohammad Albkri).

1172. Notice, Nassim v. Obama, No. 1:09-cv-1332 (D.D.C. May 23, 2011) (Hajji Nassim by

apparent suicide) [hereinafter Nassim Death Notice]; Notice, Gul v. Obama, No. 1:08-cv-1224 

(D.D.C. Feb. 3, 2011) (Awal Gul of natural causes); Notice, Al-Halmandy v. Obama, No. 1:05-cv- 2385 (D.D.C. June 3, 2009) (Mohammad Ahmed Abdullah Saleh al-Hanashi by apparent suicide)

[hereinafter Al-Hanashi Death Notice].

1173. The cases were assigned the following docket numbers: 1:08-cv-1085, 1:08-cv-1101, 

1:08-cv-1104, and 1:08-cv-1153; see Josh White & Del Quentin Wilber, Guantanamo Detainee to

File Habeas Petition, Wash. Post, June 26, 2008, at A14.

1174. The court gave Judge Hogan an extra law clerk for one year to help him with these cases. Interview with Hon. Royce C. Lamberth, May 13, 2011; Interview with Hon. Thomas F. Hogan, Jan. 12, 2010.
150 National Security Case Management Studies (11/14/2011)

plan.1175 The court assigned one miscellaneous case number to coordination of

121 cases pertaining to detainees, In re Guantanamo Bay Detainee Litigation,1176

and another case number to coordination of 103 cases pertaining to previous detainees, In re Petitioners Seeking Habeas Corpus Relief in Relation to Prior Detentions at Guantanamo Bay.1177 Later, Judge Sullivan also opted out of the coordination plan.1178

On April 1, 2010, Judge Hogan determined that the court no longer had jurisdiction over previous detainees cases.1179 By this time, another 38 petitions on

behalf of 40 detainees had been filed,1180of which at least four were duplicates,1181

and another three turned out to have already been transferred to Afghanistan.1182

The court of appeals, considering the petitions of two detainees who had been

transferred without rescission of their designation as enemy combatants, agreed

with Judge Hogan, on July 22, 2011, that their petitions were without Article III

remedy.1183

 1175. In re Petitioners Seeking Habeas Corpus Relief, 567 F. Supp. 2d 83 (D.D.C. 2008); Order, In re Guantanamo Bay Detainee Litig., No. 1:08-mc-442 (D.D.C. July 2, 2008); see Al-Adahi 

v. Obama, 613 F.3d 1102, 1104 (D.C. Cir. 2010); see also Palazzolo, supra note 1083. Judge Lamberth, who had been chief judge one month when the Supreme Court issued its

Boumediene decision, presided over regular meetings of judges hearing the habeas cases, including Judge Leon, who otherwise opted out of the coordination plan. Interview with Hon. Royce C. Lamberth, May 13, 2011.

1176. Docket Sheet, In re Guantanamo Bay Detainee Litig., No. 1:08-mc-442 (D.D.C. July 2, 2008).

1177. Docket Sheet, In re Petitioners Seeking Habeas Corpus Relief, No. 1:08-mc-444 (D.D.C. 

July 3, 2008) [hereinafter Former Guantánamo Detainees Docket Sheet].

1178. In re Guantanamo Bay Detainee Litig., 577 F. Supp. 2d 309, 310 n.1 (D.D.C. 2008); see

Palazzolo, supra note 1083. 1179. In re Petitioners Seeking Habeas Corpus Relief, 700 F. Supp. 2d 119 (D.D.C. 2010).

1180. The cases were assigned the following docket numbers: 1:08-cv-1173, 1:08-cv-1185, 

1:08-cv-1207, 1:08-cv-1221 through 1:08-cv-1224, 1:08-cv-1227 through 1:08-cv-1238, 1:08-cv- 1310, 1:08-cv-1360, 1:08-cv-1440, 1:08-cv-1628, 1:08-cv-1789, 1:08-cv-1805, 1:08-cv-1828, 

1:08-cv-1923, 1:08-cv-2019, 1:08-cv-2083, 1:09-cv-31, 1:09-cv-873, 1:09-cv-904, 1:09-cv-1332, 

1:09-cv-1385, 1:09-cv-1460 through 1:09-cv-1462, and 1:10-cv-407.

1181. There were at least three detainees named in two cases each:

1. Houmad Warzly in No. 1:05-cv-2385 was identified as Hamoud Abdullah Hamoud

Hassan al-Wady in No. 1:08-cv-1237. 2. Abdurahman in No. 1:05-cv-2386 was identified as Abdul Ghaffar in No. 1:08-cv- 1310. 3. Abdul Rahim Hussein Muhamed Ali Nashir in No. 1:08-cv-1085 was identified as Abd

al-Rahim Hussain Mohammed al-Nashiri in No. 1:08-cv-1207. At least one detainee was named in three cases: Adel in Nos. 1:05-cv-2385 and 1:05-cv-2386

was identified as Adel Noori in No. 1:08-cv-1310. 1182. Notice, Hafiz v. Obama, No. 1:09-cv-1461 (D.D.C. Dec. 22, 2009) (noting transfer of

Abdul Hafiz to Afghanistan); Notice, Hashim v. Obama, No. 1:09-cv-1460 (D.D.C. Dec. 22, 2009) (noting transfer of Mohammed Hashim to Afghanistan); Notice, Hafizullah v. Bush, No. 1:08-cv-1227 (D.D.C. Nov. 10, 2008) (noting that the detainee had been transferred a year and a

half before the petition was filed).

1183. Gul v. Obama, 652 F.3d 12 (D.C. Cir. 2011).
National Security Case Management Studies (11/14/2011) 151

Merits Rulings

Judge Leon

Proceeding with his retained cases, Judge Leon held a status conference on July

24, 2008, for a petition by six Algerians apprehended in Bosnia, where they held

either dual citizenship or legal residence.1184 Judge Leon determined that to justify 

detention the government had to show by a preponderance of the evidence that the 

detainee was an enemy combatant:

an individual who was part of or supporting Taliban or al Qaeda forces, or associated

forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported

hostilities in aid of enemy armed forces.1185 On November 20, 2008, Judge Leon ruled that classified evidence presented

to the court established that Belkacem Bensayah was an al-Qaeda facilitator.1186

Judge Leon ruled against the government with respect to the other five detainees

and ordered them released.1187 As Judge Leon urged in court, the government did

not appeal the release orders,1188 but Bensayah appealed the decision against

him.1189 On appeal, the government changed its contention from Bensayah s providing support to al-Qaeda to Bensayah s being part of al-Qaeda, and the court of

appeals determined that the change necessitated a remand to the district court.1190

The parties, however, have consented to an extension of time to request a rehearing of the appeal.1191 Although Bensayah remains at Guantánamo Bay, the last of

the successful Bosnian petitioners was released on November 30, 2009.1192

 1184. Boumediene v. Bush, 579 F. Supp. 2d 191, 193 95 (D.D.C. 2008); see 6 Tied to Terror Are Given to U.S. by Bosnia, Despite Court Ruling, N.Y. Times, Jan. 19, 2002, at A8.

1185. Boumediene v. Bush, 583 F. Supp. 2d 133, 135 (D.D.C. 2008); see Bensayah v. Obama, 610 F.3d 718, 721 (D.C. Cir. 2010).

1186. Bensayah, 610 F.3d at 721 22; Boumediene v. Bush, 579 F. Supp. 2d 191, 198 (D.D.C. 2008), vacated, 610 F.3d 718; see William Glaberson & Bernie Becker, Judge Declares Five Detainees Held Illegally, N.Y. Times, Nov. 21, 2008, at A1 ( It was the first hearing on the government s evidence for holding detainees at Guantanamo. ); Del Quentin Wilber, 5 at Guantanamo

Ordered Released, Wash. Post, Nov. 21, 2008, at A2.

1187. Bensayah, 610 F.3d at 721; Boumediene, 579 F. Supp. at 196 99; see Glaberson &

Becker, supra note 1186; Hafetz, supra note 502, at 244; Chisun Lee, Their Own Private Guantánamo, N.Y. Times, July 23, 2009, at A31; Wilber, supra note 1186; Paul M. Winke, A Day in Court, in The Guantánamo Lawyers, supra note 1023, at 350, 357.

1188. Boumediene Docket Sheet, supra note 1044; see Glaberson & Becker, supra note 1186; 

Hafetz, supra note 502, at 244; Winke, supra note 1187, at 357.

1189. Docket Sheet, Bensayah v. Obama, No. 08-5537 (D.C. Cir. Dec. 31, 2008) [hereinafter

First D.C. Cir. Bensayah Docket Sheet]; see Winke, supra note 1187, at 357.

1190. Bensayah, 610 F.3d at 720, 725 27; see Charlie Savage, Appeals Court Sides with

Guantánamo Detainee, N.Y. Times, July 4, 2010, at A15.

1191. Order, Bensayah, No. 08-5537 (D.C. Cir. Nov. 10, 2010); see First D.C. Cir. Bensayah

Docket Sheet, supra note 1189 (noting a deadline of Nov. 22, 2011, for a petition for rehearing).

1192. Notice, Boumediene v. Obama, No. 1:04-cv-1166 (D.D.C. Dec. 1, 2009) (noting the release of Saber Lahmar to France); see Steven Erlanger, Ex-Detainee Describes His 7 Years at U.S. 

Site, N.Y. Times, May 27, 2009, at A10 (reporting on Lakhdar Boumediene s release to France on

May 15, 2009); Steven Erlanger, France: Algerian Freed From Guantánamo Prison, N.Y. Times,
152 National Security Case Management Studies (11/14/2011)

On December 30, 2008, Judge Leon denied two habeas petitions.1193

Hisham Sliti, a native of Tunisia, was detained by Pakistani authorities in October 2000 while attempting to fly from Afghanistan to Europe on a false passport.1194 He escaped but was again apprehended by Pakistani authorities while attempting to flee from Afghanistan in late 2001.1195 Pakistan transferred him to

U.S. custody, and the United States transferred him to Guantánamo Bay.1196 On 

March 2, 2005, attorneys filed a habeas petition on behalf of Sliti and 15 other

detainees.1197 Treatment of Sliti at Guantánamo Bay, and mistreatment of his Quran, were reportedly related to a widespread hunger strike later that year.1198 By 

the time of Sliti s December 2008 habeas hearing, 11 of Sliti s co-petitioners had

been transferred to Albania, Egypt, Jordan, Maldives, Mauritania, Somaliland, Spain, Sudan, and Tunisia.1199 Judge Leon found that the evidence that Sliti s travels were financed by extremists with ties to al-Qaeda implied that Sliti was an al- Qaeda recuit.1200 An appeal is pending.1201

Judge Leon also found adequate proof that Moath Hamza Ahmed al-Alwi, a

Yemeni apprehended in Pakistan in late 2001, stayed at a guesthouse and received 

military training at a camp, both of which were associated with the Taliban or al- Qaeda.1202 The court of appeals affirmed on July 22, 2011.1203

 Dec. 2, 2009, at A10 (reporting on Lahmar s release); Peter Finn, Three Algerian Detainees Set

for Transfer to Bosnia, Wash. Post, Dec. 16, 2008, at A2 (reporting on the release of Mohammed

Nechle, Hadj Boudella, and Mustafa Ait Idir to Bosnia and Herzegovina); Peter Finn & Julie Tate, 

4 From Guantanamo Are Sent to Europe, Wash. Post, Dec. 1, 2009, at A6 (reporting on Lahmar s

release); Peter Finn & Julie Tate, Freed Algerian Detainee Flown to France, Wash. Post, May 16, 2009, at A1 (reporting on Lakhdar Boumediene s transfer to France); William Glaberson, U.S. Is

Set to Release 3 Detainees From Base, N.Y. Times, Dec. 16, 2008, at A28 (reporting on the release of Mohammed Nechle, Hadj Boudella, and Mustafa Ait Idir to Bosnia and Herzegovina).

1193. Al-Alwi v. Bush, 593 F. Supp. 2d 24 (D.D.C. 2008); Sliti v. Bush, 592 F. Supp. 2d 46

(D.D.C. 2008); see William Glaberson, Judge Agrees with Bush in Ruling on 2 Detainees Status, N.Y. Times, Dec. 31, 2008, at A15.

1194. Sliti, 592 F. Supp. 2d at 48.

1195. Id.

1196. Id.

1197. Docket Sheet, Sliti v. Bush, No. 1:05-cv-429 (D.D.C. Mar. 2, 2005); Sliti, 592 F. Supp. 2d at 48.

1198. See Neil A. Lewis, Widespread Hunger Strike at Guantánamo, N.Y. Times, Sept. 18, 2005, at 124.

1199. Supra notes 1167, 1170. Yousuf al-Karany was transferred to Chad the following June. Supra note 1170. 1200. Sliti, 592 F. Supp. 2d at 50.

1201. Docket Sheet, Sliti v. Obama, No. 09-5104 (D.C. Cir. Mar. 31, 2009); see Status Report, 

id. (July 1, 2011) (requesting extension of a stay).

1202. Al-Alwi v. Bush, 593 F. Supp. 2d 24 (D.D.C. 2008).

1203. Al-Alwi v. Obama, 653 F.3d 11 (D.C. Cir. 2011); see Docket Sheet, Al-Alwi v. Obama, No. 11A368 (U.S. Aug. 22, 2011) (noting an extension until Dec. 5, 2011, to file a petition for a

writ of certiorari).
National Security Case Management Studies (11/14/2011) 153

On January 14, 2009, Judge Leon granted Mohammed el-Gharani s habeas

petition.1204 El-Gharani was a native of Saudi Arabia and a citizen of Chad; he

was apprehended in 2001 at the age of 14.1205

Unlike most of the other cases reviewed to date by this Court, the Government s evidence against el Gharani consists principally of the statements made by two other detain- ees while incarcerated at Guantanamo Bay. . . . [T]he credibility and reliability of the detainees being relied upon by the Government has either been directly called into question

by Government personnel or has been characterized by Government personnel as undetermined.1206 The government released el-Gharani to Chad on June 11.1207

On January 28, Judge Leon denied the petition of Ghaleb Nassar al-Bihani on

evidence that he served with the 55th Arab Brigade in support of the Taliban

against the Northern Alliance.1208 The court of appeals affirmed.1209

Judge Leon denied Hedi Hammamy s petition on April 2.1210 Hammamy is a

Tunisian arrested in Pakistan in April 2002, and Judge Leon found adequate proof 

that he fought in the battle of Tora Bora.1211 Hammamy had been charged with

terrorism activity in Italy, and his identification papers were found at Tora Bora.

1212

Judge Leon granted a petition on June 22.1213 Abdul Rahim Abdul Razak al- Janko, a Syrian citizen, admitted to staying at a Taliban guesthouse and attending

the al-Farouq training camp, but he claimed that he did this involuntarily.1214 The 

government condeded that he was subsequently imprisoned by al-Qaeda and tortured into a false confession that he was a U.S. spy,1215 and Judge Leon concluded 

that after such treatement he could not have been part of al-Qaeda or the Taliban

 1204. El Gharani v. Bush, 593 F. Supp. 2d 144 (D.D.C. 2009); see William Glaberson, Rulings 

of Improper Detentions in Cuba as the Bush Era Closes, N.Y. Times, Jan. 19, 2009, at A1; Del

Quentin Wilber, Citing Weak Evidence, Judge Orders Guantanamo Detainee Freed, Wash. Post, Jan. 15, 2009, at A11.

1205. El Gharani, 593 F. Supp. 2d at 145, 147; see Peter Finn & Sandhya Somashekhar, Oba- ma Bows on Settling Detainees, Wash. Post, June 12, 2009, at A1; Glaberson, supra note 1204; 

Stafford Smith, supra note 1023, at 146 50; see also id. at 147 ( People born in Saudi Arabia of

foreign parents are not considered as Saudis. ). 1206. El Gharani, 593 F. Supp. 2d at 147.

1207. Transfer Notice, Sliti v. Obama, No. 1:05-cv-429 (D.D.C. June 11, 2009) [hereinafter

El-Gharani Transfer Notice]; see Finn & Somashekhar, supra note 1205. 1208. Al-Bihani v. Obama, 594 F. Supp. 2d 35, 39 (D.D.C. 2009); see Lee, supra, note 1187. 1209. Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1814 (2011); see Justices Reject Appeals of Detainees at Guantanamo, Wash. Post, Apr. 5, 2011, at A6 [hereinafter Justices Reject Appeals].

1210. Hammamy v. Obama, 604 F. Supp. 2d 240 (D.D.C. 2009).

1211. Id.

1212. Id. at 243 44.

1213. Al Ginco v. Obama, 634 F. Supp. 2d 109 (D.D.C. 2009); Al-Ginco v. Obama, 626 F. Supp. 2d 123 (D.D.C. 2009); see Del Quentin Wilber, Judge Orders Guantanamo Detainee s Release, Wash. Post, June 23, 2009, at A12.

1214. Al-Ginco, 626 F. Supp. 2d at 128.

1215. Id. at 127; see Hafetz, supra note 502, at 246.
154 National Security Case Management Studies (11/14/2011)

when he was apprehended by the United States.1216 Al-Janko was released from

Guantánamo Bay, and, on October 5, 2010, he filed a civil action against the government alleging torture.1217

Uighurs

Eighteen of the Guantánamo Bay detainees were ethnic Uighurs, and there are

reports that the government of China used the international effort to combat terror

as an opportunity to squelch Uighur separatism in China.1218

On March 10, 2005, the Center for Constitutional Rights filed a habeas petition on behalf of two Uighurs: Abu Bakker Qassim and A del Abdu al-Hakim.1219

The court assigned the petition to Judge Robertson.1220 On July 13 and 15, counsel met the petitioners for the first time and learned that at least two months previously the CSRT had determined that Qassim and al-Hakim were not enemy

combatants.1221 The government provided neither the attorneys nor Judge Robertson with notice of the CSRT ruling.1222 On July 22, the attorneys filed a motion

for their clients immediate release.1223 Recognizing that returning the Uighurs to

China could subject them to persecution and releasing them within the United

States could have national security implications, Judge Robertson concluded, on

December 22, that although the continued detention of the petitioners was unlawful the court could not provide a remedy.1224 On May 5, 2006, three days before

oral argument on the petitioners appeal, the government released Qassim and al- Hakim to a United Nations refugee camp in Albania.1225

 1216. Al-Ginco, 626 F. Supp. 2d at 129 30; see Hafetz, supra note 502, at 246.

1217. Docket Sheet, Al-Janko v. Gates, No. 1:10-cv-1702 (D.D.C. Oct. 5, 2010); see Spencer 

S. Hsu, Ex-Detainee Sues the U.S., Saying Captors Tortured Him, Wash. Post, Oct. 7, 2010, at A4

( Janko says that he was urinated on by his American captors, slapped, threatened with loss of

fingernails, and exposed to sleep deprivation, extreme cold and stress positions. ). 1218. Qassim v. Bush, 382 F. Supp. 2d 126, 128 n.4 (D.D.C. 2005); see Cucullu, supra note 

1040, at 139 40; Simard, supra note 1034, at 369, 379.

1219. Petition, Qassim v. Bush, No. 1:05-cv-497 (D.D.C. Mar. 10, 2005); Qassim v. Bush, 407 

F. Supp. 2d 198, 199 (D.D.C. 2005); see Simard, supra note 1034, at 382.

1220. Docket Sheet, Qassim, No. 1:05-cv-497 (D.D.C. Mar. 10, 2005).

1221. Qassim, 407 F. Supp. 2d at 199; Qassim, 382 F. Supp. 2d at 127; Release Motion, Qassim, No. 1:05-cv-497 (D.D.C. July 22, 2005) [hereinafter Qassim Release Motion].

1222. Qassim, 407 F. Supp. 2d at 199; Qassim, 382 F. Supp. 2d at 127.

1223. Qassim Release Motion, supra note 1221. 1224. Qassim, 407 F. Supp. 2d 198; see Neil A. Lewis, Freed from Guantánamo but Stranded

Far from Home, N.Y. Times, Aug. 15, 2006, at A15; Simard, supra note 1034, at 382 84.

1225. Qassim v. Bush, 466 F.3d 1073, 1074 (D.C. Cir. 2006); see Tim Golden, Chinese Leave

Guantánamo for Albanian Limbo, N.Y. Times, June 10, 2007, at 11; Lewis, supra note 1224; Abu 

Bakker Qassim, The View from Guantánamo, N.Y. Times, Sept. 17, 2006, at 415; Simard, supra

note 1034, at 384 85; Stafford Smith, supra note 1023, at 264 65; P. Sabin Willett, Exile, in The 

Guantánamo Lawyers, supra note 1023, at 329.

These Uighurs now live in a refugee camp, monitored by armed guards, and surrounded by

razor wire. Integration has been hard for them because there is no Uighur community in Albania, and they do not speak the language. Albania is not a highly sought country for asylum

because of its economic situation and poverty.

Simard, supra note 1034, at 386.
National Security Case Management Studies (11/14/2011) 155

From July 29 through December 14, 2005, five habeas petitions were filed on

behalf of an additional 16 Uighur detainees.1226 The Center for Constitutional

Rights filed a petition on behalf of 159 detainees in December 2005,1227and two

of these detainees were Uighurs; they were given a new case number so that their

case could be consolidated before Judge Urbina with the other Uighur cases.1228

In June 2006, Saddiq Ahmed Turkistani was released to Saudi Arabia.1229

One of the detained Uighurs was Huzaifa Parhat, who, on December 4, 2006, filed one of the first appeals from the CSRT.1230 On June 20, 2008, the court of

appeals, in the only CSRT appeal to reach the merits, determined that the evidence presented to the CSRT was insufficient to support Parhat s designation as

an enemy combatant.1231 The government saw no material differences in its evidence aginst the other Uighurs, and therefore decided that none of the petitioners

should be detained as enemy combatants. 1232

Habeas proceedings concerning the Uighurs received considerable public attention and were attended by Uighurs from the extensive local Uighur community

and by Uighurs from elsewhere in the United States and from other countries.1233

On October 9, Judge Urbina ruled that the government had to release the 17 remaining Uighurs within the United States, because it had taken too long to find

somewhere else to send them.1234

 It was reported that Albania refused to accept additional Uighurs because of pressure from

China. Cucullu, supra note 1040, at 227.

1226. Petition, Thabid v. Bush, No. 1:05-cv-2398 (D.D.C. Dec. 14, 2005) (two detainees); Petition, Razakah v. Bush, No. 1:05-cv-2370 (D.D.C. Dec. 12, 2005) (two detainees); Petition, Abu 

Kabir v. Bush, No. 1:05-cv-1704 (D.D.C. Aug. 25, 2005) (two detainees); Petition, Mamet v. Bush, No. 1:05-cv-1602 (D.D.C. Aug. 11, 2005) (one detainee); Petition, Kiyemba v. Bush, No. 1:05-cv-1509 (D.D.C. July 29, 2005) (nine detainees).

1227. Petition, Mohammon v. Bush, No. 1:05-cv-2386 (D.D.C. Dec. 21, 2005).

The petition appeared to be on behalf of 167 detainees, but some detainees were listed more

than once. On July 29, 2008, Judge Hogan dismissed without prejudice all but 29 of the petitioners 

from this case. Order, id. (July 29, 2008).

1228. Docket Sheet, Ghaffar v. Bush, No. 1:08-cv-1310 (D.D.C. July 30, 2008); see Order, 

Mohammon, No. 1:05-cv-2386 (D.D.C. July 30, 2008) (ordering a new case number).

1229. Notice of Transfer, Kiyemba, No. 1:05-cv-1509 (D.D.C. June 27, 2006).

1230. Docket Sheet, Parhat v. Rumsfeld, No. 06-1397 (D.C. Cir. Dec. 4, 2006) [hereinafter

D.C. Cir. Parhat Docket Sheet].

The Detainee Treatment Act of 2005 gave the U.S. Court of Appeals for the District of Columbia Circuit exclusive jurisdiction over CSRT appeals. 10 U.S.C. § 801 note.

1231. Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008); see William Glaberson, U.S. Court, in a

First, Voids Finding by Tribunal, N.Y. Times, June 24, 2008, at A15; Hafetz, supra note 502, at

249; Josh White & Del Quentin Wilber, Appeals Court Invalidates Detainee s Enemy Status, Wash. Post, June 24, 2008, at A14.

1232. Kiyemba v. Obama, 555 F.3d 1022, 1024 (D.C. Cir. 2009).

1233. Interview with Hon. Ricardo M. Urbina, Aug. 15, 2011.

1234. In re Guantanamo Bay Detainee Litig., 581 F. Supp. 2d 33 (D.D.C. 2008); see Kent 

Spriggs, The Tallahassee Uighur Settlement Project, in The Guantánamo Lawyers, supra note 

1023, at 314, 315 ( The Lutheran refugee agency for the greater Washington, D.C., area was to

take fourteen of the Uighurs, and Tallahassee was to take three. The plans of both groups were

proffered to Judge Urbina and became part of the record. ); see also Cucullu, supra note 1040, at
156 National Security Case Management Studies (11/14/2011)

On February 18, 2009, the court of appeals vacated Judge Urbina s order.1235

Judges A. Raymond Randolph and Karen Lecraft Henderson held that the judicial

branch did not have the authority to order admission of aliens.1236 Judge Judith W. 

Rogers would have remanded for consideration of whether immigration detention

would be proper.1237 On June 11, the government released Parhat and three other

Uighurs to Bermuda.1238

The Supreme Court granted a writ of certiorari on October 20.1239 The government transferred six Uighurs to Palau in November.1240 Palau offered to accept

six of the remaining seven Uighurs, but they declined the offer.1241 One of the

Uighurs who declined, Bahtiyar Mahnut, did so because the offer was not extended to his brother, Arkin Mahmud, because he suffered from mental illness.1242

Switzerland agreed to take the brothers.1243 On May 1, 2010, the Supreme Court

decided not to review the case after all, because all of the Uighurs had been offered places of resettlement outside China and the United States, and most of

them had accepted the offers.1244 The judges on the court of appeals reinstated

 227; William Glaberson, In Blow to President, Judge Orders 17 Detainees at Guantánamo Freed, N.Y. Times, Oct. 8, 2008, at A15; Hafetz, supra note 502, at 249; Del Quentin Wilber, Chinese 

Muslims Ordered Released from Guantanamo, Wash. Post, Oct. 8, 2008, at A1.

1235. Kiyemba, 555 F.3d 1022; see William Glaberson, Appeals Court Stops Release of 17

Detainees in U.S., N.Y. Times, Feb. 19, 2009, at A18; Hafetz, supra note 502, at 249 50; Del

Quentin Wilber & Carrie Johnson, Court Blocks Release of 17 Uighurs Into U.S., Wash. Post, Feb. 

19, 2009, at A4.

1236. Kiyemba, 555 F.3d at 1023 32.

1237. Id. at 1032 39 (Rogers, concurring in the judgment).

1238. Notice of Transfer, Kiyemba v. Obama, No. 1:05-cv-1509 (D.D.C. June 11, 2009) (Abdul Nasser, Jalal Jaladin, Abdul Semet, and Huzaifa Parhat); see Erik Eckholm, Freed from Guantánamo, Uighur Muslims Bask in Bermuda, N.Y. Times, June 15, 2009, at A4; Peter Finn & Sandhya Somashekhar, Obama Bows on Settling Detainees, Wash. Post, June 12, 2009, at A1; William

Glaberson, 6 Guantánamo Detainees Are Released to Other Countries as Questions Linger, N.Y. Times, June 12, 2009, at A6; Hafetz, supra note 502, at 250.

1239. Kiyemba v. Obama, ___ U.S. ___, 130 S. Ct. 458 (2009); see Robert Barnes, Supreme 

Court to Hear Uighurs Case, Wash. Post, Oct. 21, 2009, at A1; Hafetz, supra note 502, at 250;

Adam Liptak, Justices to Hear Appeal from Uighurs Held at Guantánamo, N.Y. Times, Oct. 21, 2009, at A14.

1240. Notice of Transfer, Ghaffar v. Obama, No. 1:08-cv-1310 (D.D.C. Nov. 2, 2009) (Abdul 

Ghappar Abdul Rahman and Adel Noori); Notice of Transfer, Thabid v. Obama, No. 1:05-cv-2398 

(D.D.C. Nov. 2, 2009) (Anwar Hassan and Dawut Abdurehim); Notice of Transfer, Razakah v. Obama, No. 1:05-cv-2370 (D.D.C. Nov. 2, 2009) (Ahmad Tourson); Notice of Transfer, Mamet v. 

Obama, No. 1:05-cv-1602 (D.D.C. Nov. 2, 2009) (Edham Mamet); see Hafetz, supra note 502, at

250; David Johnston, 6 Uighurs Leave Guantánamo for Palau, N.Y. Times, Nov. 1, 2009, at 14.

1241. See Del Quentin Wilber & Peter Finn, Uighur Brothers to Resettle in Switzerland, Wash. 

Post, Feb. 4, 2010, at A10.

1242. See Carol Rosenbergt, Swiss Resettle 2 Uighurs from Guantanamo, Georgia Takes Libyans, Miami Herald, Mar. 24, 2010; Wilber & Finn, supra note 1241. 1243. See Rosenberg, supra note 1241; Wilber & Finn, supra note 1241. 1244. Kiyemba v. Obama, ___ U.S. ___, 130 S. Ct. 1235 (2010); see Robert Barnes, Court 

Declines to Rule on Resettlement of Guantanamo Detainees, Wash. Post, Mar. 2, 2010, at A5;

Hafetz, supra note 502, at 250; Adam Liptak, Supreme Court Refuses Ruling on Chinese Uighurs

Held at Guantánamo, N.Y. Times, Mar. 2, 2010, at A16.
National Security Case Management Studies (11/14/2011) 157

their original opinions on August 9.1245 On April 18, 2011, the Supreme Court denied certiorari. Justice Kagan recused herself, and four justices observed that offers of resettlement from two countries and the Government s uncontested commitment to continue to work to resettle petitioners made the case one that did not 

present the important question whether a district court may order the release of

an unlawfully held prisoner into the United States where no other remedy is

available. 1246

Returns

For the cases assigned to him for coordination, Judge Hogan ordered the government to begin filing or amending factual returns at the rate of 50 per month, beginning August 29, 2008.1247 Just before midnight on August 29, after having

filed ten returns, the government moved for a 30-day extension of all return deadlines, arguing that accommodating the classified information associated with the

returns had been unexpectedly time-consuming.1248 Judge Hogan reluctantly 

granted the motion.1249 In November, Judge Hogan ordered that the public files

include unclassified versions of the returns.1250

Conditions of Confinement

On September 22, in response to motions for access to medical records and other

relief, Judge Hogan ruled that although the Supreme Court had declared unconstitutional the Military Commissions Act of 2006 s stripping of jurisdiction over

core habeas corpus claims, the precedent did not apply to the act s stripping of

jurisdiction over claims concerning conditions of confinement, so Judge Hogan

denied the motions.1251 Judge Roberts, the merits judge for one of the cases, de-

 1245. Kiyemba v. Obama, 605 F.3d 1046, 1047 (D.C. Cir. 2010) ( we reinstate our original

opinion, as modified here to take account of new developments ); id. at 1048 (Rogers, concurring 

in the judgment) ( my separate concurrence . . . must . . . also be reinstated, acknowledging certain 

new developments ). 1246. Kiyemba v. Obama, 563 U.S. ___, 131 S. Ct. 1631 (2011) (statement of Breyer, joined

by Kennedy, Ginsburg, and Sotomayor); see Adam Liptak, Justices Decline to Hear Appeal from

Chinese Detainees, N.Y. Times, Apr. 19, 2011, at A18.

1247. In re Guantanamo Bay Detainee Litig., 564 F. Supp. 2d 14, 16 (D.D.C. 2008).

1248. In re Guantanamo Bay Detainee Litig., 577 F. Supp. 2d 309, 310 (D.D.C. 2008).

The Justice Department did not begin organizing evidence against the detainees until the Supreme Court s Boumediene decision. Interview with Hon. Royce C. Lamberth, May 13, 2011.

1249. In re Guantanamo Bay Detainee Litig., 577 F. Supp. 2d at 310.

1250. Case Management Order, In re Guantanamo Bay Detainee Litig., No. 1:08-mc-442 

(D.D.C. Nov. 6, 2008), available at 2008 WL 4858241. 1251. In re Guantanamo Bay Detainee Litig., 577 F. Supp. 2d 314 (D.D.C. 2008); In re Guantanamo Bay Detainee Litig., 577 F. Supp. 2d 312 (D.D.C. 2008).

As Congress considered stripping Guantánamo Bay detainees of habeas corpus rights, habeas

attorneys contemplated urging a compromise in which only jurisdiction over conditions of confinement would be stripped. See Gary A. Isaac, The Great Writ Gets Political: Defending Habeas

Corpus in Court, in Congress, and on the Campaign Trail, in The Guantánamo Lawyers, supra

note 1023, at 200, 205, 212 13.
158 National Security Case Management Studies (11/14/2011)

cided on reconsideration that the motion concerned the detainee s ability to pursue his core habeas claims and granted relief on November 28.1252

Judges Urbina,1253 Bates,1254 and Kessler1255 agreed with Judge Hogan that the 

court had no jurisdiction over conditions of confinement.

Zayn al-Abidin Muhammad Husayn,1256a Palestinian also known by his nom

de guerre, Abu Zubaydah, was identified in early 2000 as a suspected key lieuten- ant of Osama Bin Laden s.1257 In March 2002, he was captured in Faisalabad, Pakistan.1258 He was waterboarded at least several dozen times the following August.1259 Information derived from his interrogation helped to identify Jose Padilla 

as a terrorism suspect.1260 Destruction of videotapes of Abu Zubaydah and other

detainees harsh interrogations led to a high-profile criminal investigation that ultimately resulted in no criminal charges.1261 On September 6, 2006, the President

announced that Abu Zubaydah and 13 other terrorism suspects, including Khalid

Sheikh Mohammed, who is understood to be the mastermind of the September 11, 

 1252. Husayn v. Gates, 588 F. Supp. 2d 7 (D.D.C. 2008).

1253. Tumani v. Obama, 598 F. Supp. 2d 67, 69 (D.D.C. 2008) (denying a motion for less restrictive detention); In re Guantanamo Bay Detainee Litig., 570 F. Supp. 2d 13, 19 (D.D.C. 2008)

(same).

1254. Khadr v. Bush, 587 F. Supp. 2d 225, 234 37 (D.D.C. 2008) (overruling a challenge to

confinement as an adult).

1255. Al-Adahi v. Obama, 596 F. Supp. 2d 111, 117 20 (D.D.C. 2009) (denying an injunction

against the government s methods of force-feeding two hunger-striking detainees).

1256. Docket Sheet, Husayn v. Gates, No. 1:08-cv-1360 (D.D.C. Aug. 6, 2008) [hereinafter

Husayn Docket Sheet].

1257. See Judith Miller, Dissecting a Terror Plot From Boston to Amman, N.Y. Times, Jan. 15, 2001, at A1; James Risen, Foiled Terror Plot on Tourists Linked to Bin Laden Aide, N.Y. Times, Feb. 29, 2000, at A1; Soufan, supra note 64, at 380 81; see also Hafetz, supra note 502, at 

232 ( Interrogators later realized that Zubaydah was merely a low-level personnel clerk who

helped facilitate travel to training camps in Afghanistan. ); Soufan, supra note 64, at 381 ( It was

not until the Obama administration was in office that U.S. official stopped calling him a senior al- Qaeda member. ). 1258. See Michael R. Gordon, A Top Qaeda Commander Believed Seized in Pakistan, N.Y. Times, Mar. 31, 2002, at 112; Soufan, supra note 64, at 373 74.

1259. See Scott Shane, Waterboarding Used 266 Times on 2 Suspects, N.Y. Times, Apr. 20, 2009, at A1.

1260. See Hafetz, supra note 502, at 46, 232; Eric Lichtblau & Adam Liptak, Questioning to

Be Legal, Humane and Aggressive, the White House Says, N.Y. Times, Mar. 4, 2003, at A13; Soufan, supra note 64, at 354, 427; see also infra, Dirty Bomber. 1261. See Dan Eggen & Joby Warrick, CIA Destroyed Videos Showing Interrogations, Wash. Post, Dec. 7, 2007, at A1 [hereinafter CIA Destroyed Videos]; Dan Eggen & Joby Warrick, Crimi- nal Probe on CIA Tapes Opened, Wash. Post, Jan. 3, 2008, at A1 [hereinafter Criminal Probe 

Opened]; Mark Mazzetti, C.I.A. Destroyed 2 Tapes Showing Interrogations, N.Y. Times, Dec. 7, 2007, at A1; Mark Mazzetti & David Johnston, U.S. Announces Criminal Inquiry Into C.I.A. Tapes, N.Y. Times, Jan. 3, 2008, at A1; Mark Mazzetti & Charlie Savage, No Criminal Charges

Sought Over C.I.A. Tapes, N.Y. Times, Nov. 10, 2010, at A12; Soufan, supra note 64, at 434

( Declassified internal CIA e-mails show senior CIA officials stating the urgency and importance

of destroying the tapes. ).
National Security Case Management Studies (11/14/2011) 159

2001, attacks, had been transferred from secret CIA prisons to Guantánamo

Bay.1262

At Guantánamo Bay, Abu Zubaydah suffered from frequent and severe seizures.1263 He claimed that side effects from treatment provided at Guantánamo

Bay rendered him incoherent, interfered with his ability to write and speak, and

made him acutely psychotic. 1264 Judge Roberts granted Abu Zubaydah s attorneys access to his medical records and gave them permission to share them with

an independent physician.1265 Judge Urbina also granted a habeas petitioner s attorneys access to the client s medical records.1266 Judge Sullivan appointed the

court s own medical/mental health expert to examine the Petitioner and provide

the Court with a report and any recommendations in response to representations

that forcefeeding the detainee with a corn-based solution to which he might have 

been allergic was causing vomiting so extensive that it was interfering with attorney client visits.1267 A court-appointed doctor visited the detainee the following

month.1268

In response to a June 18, 2009, motion by attorneys for Muhammad Ahmad

Abdallah al-Ansi for medical records to determine whether Mr. al Ansi has a serious or life-threatening medical condition and whether he is receiving adequate

medical treatment that will keep him alive and competent to participate in these

proceedings, 1269 Judge Kessler ruled that counsel is entitled to the medical

 1262. See Cucullu, supra note 1040, at 5; Hafetz, supra note 502, at 48; Sheryl Gay Stolberg, David Johnston & Mark Mazzetti, President Moves 14 Held in Secret to Guantánamo, N.Y. Times, Sept. 7, 2006, at A1.

1263. Husayn v. Gates, 588 F. Supp. 2d 7, 9 (D.D.C. 2008); In re Guantanamo Bay Detainee

Litig., 577 F. Supp. 2d 314, 315 (D.D.C. 2008); see also Soufan, supra note 64, at 381 84 (describing Abu Zubaydah s precarious health soon after his capture). 1264. Husayn, 588 F. Supp. 2d at 9.

1265. Id. at 12.

Judge Roberts overruled the government s redactions from the medical records of certain, limited information based on a determination that Petitioner s counsel does not have the requisite

need-to-know the information, reasoning that [t]he petitioner s counsel has a security clearance

and is presumed to have a need to know the information that he is requesting. Order, Husayn v. Gates, No. 1:08-cv-1360 (D.D.C. Mar. 4, 2009), available at 2009 WL 544492. The government

complied with the order, reserving the right to rebut need to know in appropriate cases. Government Response, id. (Mar. 6, 2009).

1266. Tumani v. Obama, 598 F. Supp. 2d 67, 70 71 (D.D.C. 2008).

1267. Zuhair v. Bush, 592 F. Supp. 2d 16 (D.D.C. 2008); see id. at 17 ( in order to ensure that

Petitioner has meaningful access to counsel, that his counsel are able to adequately communicate

with him in order to represent his claims to this Court, and to preserve this Court s jurisdiction

over Petitioner s habeas petition ); see Order, Zuhair v. Bush, No. 1:08-cv-864 (D.D.C. Jan. 16, 2009), available at 2009 WL 111690 ( The report shall not be filed on the public docket, however, the Court will provide copies to counsel for the parties. ). 1268. Docket Sheet, Zuhair, No. 1:08-cv-864 (D.D.C. May 19, 2008) (noting a January 2009

visit); see Report, id. (Aug. 24, 2009).

1269. Emergency Motion 3, Al-Ansi v. Obama, No. 1:08-cv-1923 (D.D.C. June 18, 2009).
160 National Security Case Management Studies (11/14/2011)

records in order to provide Petitioner effective access to his counsel 1270and that

the order does not pertain to the conditions of Petitioner s confinement. 1271

Abstention

One of the cases assigned to Judge Hogan for coordination was a petition by

Omar Khadr, a Canadian citizen whose family moved to Afghanistan in 1997, was 15 when he was captured in Kabul in July 2002, and who was 16 when he

arrived at Guantánamo Bay.1272 He was 17 when his grandmother filed a habeas 

petition on his behalf.1273 The government brought war charges against Khadr in a 

military commission, alleging, among other things, murder of a U.S. soldier by

throwing a hand grenade at U.S. forces and attempted murder by converting land

mines to improvised explosive devices.1274 The merits judge for the habeas case

was Judge Bates, who determined that the habeas action should be stayed pending 

the outcome of the military commission, because the commission result was subject to Article III review.1275 Kadr pleaded guilty on October 25, 2010, pursuant to 

an agreement that he serve no more than eight years.1276

On January 6, 2009, Judge Kollar-Kotelly, concerning the habeas petitions of

Kuwaitis Fouad Mahmoud al-Rabiah and Fayiz Mohammed Ahmen al-Kandari, 

agreed that habeas cases should be stayed during military commission proceedings, but a stay was not warranted until a military commission was actually convened against the petitioner.1277 Each petitioner had been charged with violating

the laws of war, but the Convening Authority, who is appointed by the Secretary

of Defense to review such charges, had not yet decided whether to dismiss the

charges or refer them to a military commission.1278

Judge Kollar-Kotelly held a merits hearing for al-Rabiah in August 2009.1279

Al-Rabiah, who had studied in Perth, Scotland, and Daytona Beach, Florida, was

an aviation engineer for Kuwait Airways.1280 He periodically took approved leave

 1270. Order, id. (July 9, 2009), available at 2009 WL 2020774. 1271. Id. n.1.

1272. Khadr v. Bush, 724 F. Supp. 2d 61, 62 (D.D.C. 2010); Khadr v. Bush, 587 F. Supp. 2d

225, 228 (D.D.C. 2008); O.K. v. Bush, 344 F. Supp. 2d 44, 49 (D.D.C. 2004).

1273. Khadr, 587 F. Supp. 2d at 228; O.K., 344 F. Supp. 2d at 52; Khadr Docket Sheet, supra

note 1044. 1274. Khadr v. United States, 529 F.3d 1112, 1114 (D.C. Cir. 2008).

The Defense Department posts on the Internet docket information about military commission

cases. http://www.mc.mil. 1275. Khadr, 724 F. Supp. 2d 61; O.K., 344 F. Supp. 2d 44.

1276. See Carol Rosenberg, Teen Terrorist Gets 40 Years, But Will Serve Only 8, Miami Herald, Oct. 31, 2010, at 5A; Charlie Savage, Child Soldier for Al Qaeda Is Sentenced for War Crimes, N.Y. Times, Nov. 2, 2010, at A13; Charlie Savage, Deal Averts Trial in Disputed Guantánamo Case, N.Y. Times, Oct. 26, 2010, at A12.

1277. Al Odah v. Bush, 593 F. Supp. 2d 53, 61 (D.D.C. 2009); see Charge Sheet, United States 

v. Al-Rabia (U.S. Mil. Comm. Oct. 21, 2008), available at http://www.mc.mil; Charge Sheet, United States v. Al-Kandari, id.

1278. Al Odah., 593 F. Supp. 2d at 54 55, 60 61.

1279. Al Rabiah v. United States, 658 F. Supp. 2d 11, 15 (D.D.C. 2009).

1280. Id. at 20.
National Security Case Management Studies (11/14/2011) 161

from his job to do charitable work in stressed locations such as Bosnia, Kosovo, and Bangladesh.1281 Al-Rabiah took two weeks leave for a trip to Afghanistan in

October 2001, but he was unable to return because the border was closed as a result of the military actions by the United States there that month.1282 Al-Rabiah 

was captured near the end of the year.1283 Judge Kollar-Kotelly found the government s evidence that al-Rabiah was in Afghanistan for other than charitable

purposes to be very inconsistent and ultimately not credible, so, on September 17, 2009, she ordered his release.1284 Al-Rabiah was released to Kuwait on December

9.1285

On the other hand,

Al-Kandari was in the mountains near Tora Bora, during the height of the [December

2001] Battle of Tora Bora, armed with a Kalishnikov rifle, and in the company of several

members and high-level leaders of al Qaeda, the Taliban, or associated enemy forces, who were actively engaged in fighting the United States and its Coalition allies.1286

Judge Kollar-Kotelly denied al-Kandari s petition on September 15, 2010, following an October 2009 merits hearing.1287 An appeal is pending.1288

Authority passed from President Bush to President Obama on January 20, 2009.1289 Four days in advance of that, the government moved to stay habeas procedings by Ahmad Mohammad al-Darbi because he had been referred to a military commission the previous February.1290 Because military commissions were

suspended two days after President Obama s inauguration,1291 Judge Royce C. Lamberth denied the government s motion.1292 Judges Kollar-Kotelly1293

and Huvelle1294 ruled similarly in cases before them.

 1281. Id. at 20 21.

1282. Id. at 21.

1283. Id. at 21 22.

1284. Id. at 42; see Hafetz, supra note 502, at 247; Kuwaiti Ordered Released from Guantánamo Bay, N.Y. Times, Sept. 26, 2009, at A15 ( Mr. Rabiah, 50, is the 30th Guantánamo detainee

to be ordered released by a federal judge who has reviewed evidence justifying detention. ); Carol

Rosenberg, Guantánamo Detainees Sent to Kuwait, Belgium, Miami Herald, Oct. 9, 2009.

1285. Transfer Notice, Al-Odah v. Obama, No. 1:02-cv-828 (D.D.C. Dec. 14, 2009); see Carol 

Rosenberg, Cleared Guantánamo Detainee Sent to Kuwait, Miami Herald, Dec. 9, 2009.

1286. Al Kandari v. United States, 744 F. Supp. 2d 11, 14 (D.D.C. 2010).

1287. Id. 1288. Docket Sheet, Al-Kandari v. Obama, No. 10-5373 (D.C. Cir. Nov. 19, 2010) (noting, on

Nov. 8, 2011, that the appeal will be decided without oral argument).

1289. See Peter Baker, Obama Takes Oath, and Nation in Crisis Embraces the Moment, N.Y. Times, Jan. 21, 2009, at A1.

1290. Government Motion, Al-Darbi v. Bush, No. 1:05-cv-2371 (D.D.C. Jan. 16, 2009).

1291. Exec. Order No. 13,492 § 7, 74 Fed. Reg. 4897 (Jan. 27, 2009).

1292. Order, Al-Darbi, No. 1:05-cv-2371 (D.D.C. Apr. 7, 2009), available at 2009 WL

949088. Tim Reagan interviewed Judge Lamberth for this report in the judge s chambers on May 13, 2011.

1293. Order, Alsawam v. Obama, No. 1:05-cv-1244 (D.D.C. Apr. 15, 2009).

1294. Order, Al-Halmandy v. Obama, No. 1:05-cv-2385 (D.D.C. Apr. 22, 2009), available at

2009 WL 1078660.
162 National Security Case Management Studies (11/14/2011)

Combatant Status Review Tribunal Appeals

In July 2004, the Defense Department created Combatant Status Review Tribunals (CSRTs) to determine whether each Guantánamo Bay detainee is an enemy

combatant.1295 The Department also created Administrative Review Boards

(ARBs) to periodically review the status of detained enemy combatants to determine whether the detainee still poses a threat justifying detention.1296

The Detainee Treatment Act of 2005 was attached to the 2006 apporopriation

act for the Defense Department, enacted on December 30, 2005.1297 The act specified that the Defense Department would submit to Congress reports on CSRT and

ARB proceedings.1298 It also conferred on the District of Columbia Circuit s court

of appeals exclusive jurisdiction to determine the validity of any final decision of 

a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant. 1299

The court of appeals docket shows 177 CSRT appeals.1300 The first was filed

on behalf of Saifullah Paracha on January 24, 2006.1301 The second was also filed

on behalf of Paracha, on March 30,1302and the court of appeals determined that

the second appeal was from the ARB, over which the court was not given review

jurisdiction.1303

 1295. Boumediene v. Bush, 553 U.S. 723, 733 (2008); Al Odah v. United States, 559 F.3d

539, 541 (D.C. Cir. 2009); Bismullah v. Gates, 501 F.3d 178, 181 (D.C. Cir. 2007); In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 450 (D.D.C. 2005); see Lewis, supra note 1073; 

Meltzer, supra note 1034, at 6.

Former detainee Moazzam Begg reported that he received a notice of CSRT proceedings about 

a week after the CSRTs were established. Moazzam Begg, Enemy Combatant 261 62 (2006).

1296. See Lewis, supra note 1073. 1297. Pub. L. No. 109-148, 119 Stat. 2739 44 (2005).

1298. Id. § 1005.

1299. Id. § 1005(e); 28 U.S.C. § 2241(e)(2)(A); see Meltzer, supra note 1034, at 6 7.

1300. The cases were assigned the following docket numbers: 06-1038, 06-1117, 06-1197, 06- 1397, 07-1031, 07-1066, 07-1083, 07-1089, 07-1090, 07-1095, 07-1096, 07-1098 through 07- 1101, 07-1104 through 07-1114, 07-1116 through 07-1119, 07-1122, 07-1125 through 07-1127, 

07-1131, 07-1132, 07-1134 through 07-1137, 07-1149, 07-1150, 07-1154 through 07-1161, 07- 1165 through 07-1167, 07-1169 through 07-1171, 07-1176, 07-1181 through 07-1186, 07-1188, 

07-1189, 07-1191, 07-1192, 07-1195 through 07-1197, 07-1199, 07-1202 through 07-1204, 07- 1213 through 07-1215, 07-1221, 07-1224, 07-1225, 07-1234, 07-1236, 07-1237, 07-1243 through

07-1246, 07-1249 through 07-1254, 07-1263, 07-1266, 07-1267, 07-1269, 07-1274, 07-1295, 07- 1302, 07-1303, 07-1307, 07-1308, 07-1316, 07-1317, 07-1320, 07-1322, 07-1324, 07-1325, 07- 1330, 07-1331, 07-1340 through 07-1342, 07-1349, 07-1350, 07-1357, 07-1358, 07-1365, 07- 1368, 07-1373, 07-1374, 07-1384, 07-1393 through 07-1396, 07-1399, 07-1402, 07-1405, 07- 1413, 07-1420, 07-1442, 07-1476, 07-1485, 07-1508 through 07-1512, 07-1519, 07-1520 through

07-1523, 07-1526, 07-1527, 08-1007, 08-1011, 08-1027 through 08-1029, 08-1033, 08-1042, 08- 1043, 08-1049, 08-1053 through 08-1055, 08-1058, 08-1060, 08-1064, 08-1084, 08-1104, 08- 1112, 08-1113, 08-1130, 08-1183, 08-1198, 08-1207, 08-1209, 08-1236, 09-1238, 09-1244, 09- 1274, 09-1294, and 10-1067. 

1301. Docket Sheet, Paracha v. Rumsfeld, No. 06-1038 (D.C. Cir. Jan. 24, 2006).

1302. Docket Sheet, Paracha v. Rumsfeld, No. 06-1117 (D.C. Cir. Mar. 30, 2006).

1303. Order, id. (Apr. 9, 2007).
National Security Case Management Studies (11/14/2011) 163

The third CSRT appeal was filed on June 9 on behalf of Haji Bismullah,1304

and the fourth was filed on December 4 on behalf of seven Uighurs.1305 In these

two cases, the court made a significant preliminary ruling that the court s review

is not limited to the CSRT record, but the court must have access to all the information available to the Tribunal. 1306 The court granted relief to the Uighur

Parhat,1307 but nearly one year later the court determined that had Congress

known that the Supreme Court would nullify Congress s stripping of the detainees habeas corpus rights, Congress would not have given the court of appeals

review jurisdiction over CSRT decisions.1308

Contempt

On March 13, 2009, Judge Sullivan issued an order to show cause why the government and the attorneys for the government in this case should not be held in

contempt for failure to . . . produce exculpatory information. 1309 The government

was obliged, including by orders dated September 22, 2008,1310and January 16, 2009,1311 to provide habeas counsel with exculpatory information about their

client, Aymen Saeed Batarfi.1312 The government was also obliged to produce Batarfi s medical records.1313 Among these records, the government inadvertently

included medical information about another detainee, who was a witness against

Batarfi.1314 The identity of the witness is protected in the record, but it appears to

be the case that the medical information about him is that he suffers from antisocial personality disorder, of which deceit is a common symptom.1315 Judge Sullivan viewed this information as highly exculpatory and called the government to 

task for not producing it advertently.1316 In the end, Judge Sullivan did not issue

 1304. Docket Sheet, Bismullah v. Rumsfeld, No. 06-1197 (D.C. Cir. June 9, 2006).

1305. D.C. Cir. Parhat Docket Sheet, supra note 1230. Later, the court ordered separate actions on behalf of each detainee. Bismullah v. Gates, 501

F.3d 178, 192 (D.C. Cir. 2007) (resulting in the assignment of docket numbers 07-1508 through

07-1512, and 07-1523).

1306. Bismullah, 501 F.3d at 180; see William Glaberson, Court Tells U.S. to Reveal Data on Guantánamo, N.Y. Times, July 21, 2007, at A1; Meltzer, supra note 1034, at 53; Josh White, Government Must Share All Evidence on Detainees, Wash. Post, July 21, 2007, at A2.

1307. Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008).

1308. Bismullah v. Gates, 551 F.3d 1068 (D.C. Cir. 2009).

1309. Batarfi v. Bush, 602 F. Supp. 2d 118, 119 (D.D.C. 2009).

1310. See Government Contempt Response, Batarfi v. Bush, No. 1:05-cv-409 (D.D.C. Apr. 3, 2009).

1311. Order, Batarfi, No. 1:05-cv-409 (D.D.C. Feb. 10, 2009) [hereinafter Batarfi Discovery 

Order] (order issued orally on Jan. 16, reduced to writing and signed on Jan. 29, and filed on Feb. 10).

1312. Batarfi, 602 F. Supp. 2d at 119.

1313. Batarfi Discovery Order, supra note 1311. 1314. Government Response at 8, Batarfi, No. 1:05-cv-409 (D.D.C. Feb. 20, 2009), as redacted, id. (Mar. 17, 2009) [hereinafter Batarfi Government Response]; see Marisa Taylor, Judge 

Blasts Government s Conduct, Miami Herald, Apr. 7, 2009, at 3A.

1315. Batarfi Government Response, supra note 1314, at 8 9; see Taylor, supra note 1314. 1316. Transcript at 2 9, Batarfi, No. 1:05-cv-409 (D.D.C. Apr. 1, 2009, filed Apr. 1, 2009).
164 National Security Case Management Studies (11/14/2011)

an order of contempt,1317and Batarfi was released to Yemen by December 22, 2009.1318

Detainability

On March 13, 2009, the government filed the new administration s understanding 

of whom it could detain at Guantánamo Bay:

The President has the authority to detain persons that the President determines

planned, authorized, committed, or aided the terrorist attacks that occurred on September

11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the

United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.1319

The modification of support with the adverb substantially was a change from

the previous administration s position.1320

On April 22, Judge Walton announced the standard of detainability he would

apply to his cases.1321 He agreed to adopt the government s basic framework,1322

provided that the terms substantially supported and part of are interpreted to

encompass only individuals who were members of the enemy organization s

armed forces, as that term is intended under the laws of war, at the time of their

capture. 1323

Judge Kessler decided to adopt Judge Walton s framework.1324

On May 19, Judge Bates announced his standard of detainability:

Specifically, the Court rejects the concept of substantial support as an independent basis for detention. Likewise, the Court finds that directly supporting hostilities is not a

proper basis for detention. In short, the Court can find no authority in domestic law or the 

law of war, nor can the government point to any, to justify the concept of support as a

valid ground for detention. . . . With the exception of these two support -based elements, however, the Court will

adopt the government s proposed framework.1325

Judges Lamberth,1326 Kollar-Kotelly,1327 Robertson,1328 Hogan,1329and Urbina1330 decided to adopt Judge Bates s framework. The court of appeals, however,

 1317. Docket Sheet, id. (Mar. 1, 2005).

1318. Transfer Notice, id. (Dec. 22, 2009); see William Glaberson, U.S. Decides to Release

Detainee at Guantánamo, N.Y. Times, Mar. 31, 2009, at A17 (reporting a decision earlier in the

year to transfer Batarfi).

1319. Government Brief at 2, In re Guantanamo Bay Detainee Litig., No. 1:08-mc-442 

(D.D.C. Mar. 13, 2009).

1320. Gherebi v. Obama, 609 F. Supp. 2d 43, 53 (D.D.C. 2009).

1321. Id. at 54 71.

1322. Id. at 54, 70.

1323. Id. at 71; see Hafetz, supra note 502, at 243.

1324. Bin Mohammed v. Obama, 689 F. Supp. 2d 38, 42 (D.D.C. 2009); Opinion at 6, Al- Adahi v. Bush, No. 1:05-cv-280 (D.D.C. Aug. 21, 2009) [hereinafter Al-Adahi Habeas Grant], available at 2009 WL 2584685. 1325. Hamlily v. Obama, 616 F. Supp. 2d 63, 69 (D.D.C. 2009); see Hafetz, supra note 502, at 

243.

1326. Mattan v. Obama, 618 F. Supp. 2d 24, 26 (D.D.C. 2009).
National Security Case Management Studies (11/14/2011) 165

held that detention could be justified by support, because the government s detention power was not constrained by the international laws of war.1331

Unreliable Cooperation

On March 31, 2009, Judge Huvelle ordered a detainee released

1332

on a finding

that he could no longer constitute a threat to the United States. 1333 The detainee, 

whose association with al-Qaeda appears to have been more mercenary than ideological, apparently suffered serious reprisals for his heavy cooperation with the

government.1334

The possible unreliability of his cooperation, however, was a factor in Judge

Leon s granting Mohammed el-Gharani s petition,1335 Judge Kessler s granting a

petition by Alla Ali Bin Ali Ahmed,1336and Judge Urbina s granting a petition by

Saeed Mohammed Saleh Hatim.1337

 1327. Al Rabiah v. United States, 658 F. Supp. 2d 11, 19 (D.D.C. 2009); Al Odah v. United

States, 648 F. Supp. 2d 1, 6 7 (D.D.C. 2009); Al Mutairi v. United States, 644 F. Supp. 2d 78, 85

(D.D.C. 2009).

1328. Awad v. Obama, 646 F. Supp. 2d 20, 23 (D.D.C. 2009).

1329. Anam v. Obama, 653 F. Supp. 2d 62, 64 (D.D.C. 2009).

1330. Hatim v. Obama, 677 F. Supp. 2d 1, 7 (D.D.C. 2009).

1331. Al-Bihani v. Obama, 590 F.3d 866, 871 (D.C. Cir. 2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1814 (2011); see Hafetz, supra note 502, at 243.

1332. Final Judgment, Basardh v. Bush, No. 1:05-cv-889 (D.D.C. Mar. 31, 2009), available at

2009 WL 856345; see Detainee to Be Released, L.A. Times, Apr. 1, 2009, at 15.

1333. Basardh v. Bush, 612 F. Supp. 2d 30, 35 (D.D.C. 2009).

1334. Id. at 32; see Del Quentin Wilber, Detainee-Infomer Presents Quandary for Govern- ment, Wash. Post, Feb. 3, 2009, at A1 [hereinafter Quandary]; see also Del Quentin Wilber, 08

Habeas Ruling May Snag Obama Plans, Wash. Post, Feb. 13, 2010, at A2 [hereinafter Snag] 

( The Yemeni has serious psychological problems that include suicide attempts, hallucinations, a

severe personality disorder and depression . . . . ). The detainee signed a pro se petition on March 3, 2005. Petition, Basardh, No. 1:05-cv-889 

(D.D.C. May 3, 2005) ( Please look at my case, and also send a lawyer to look at my request for

asylum because my life has been threatened by Saudis and Yemenis. ). 1335. El Gharani v. Bush, 593 F. Supp. 2d 144, 147 49 (D.D.C. 2009); see Wilber, Quandary, supra note 1334. The government released el-Gharani to Chad. El-Gharani Transfer Notice, supra note 1207. 1336. Ahmed v. Obama, 613 F. Supp. 2d 51, 56 57 (D.D.C. 2009); see Hafetz, supra note 

502, at 244 45; Dafna Linzer, In Gitmo Case, a Reality Check, Nat l L.J., Oct. 11, 2010, at 1;

Scott Shane & Benjamin Weiser, Judging Detainees Risk, Often with Flawed Evidence, N.Y. Times, Apr. 25, 2011, at A1; Del Quentin Wilber, Release of Yemeni Held at Guantanamo Or- dered, Wash. Post, May 13, 2009, at A5.

The government returned Ahmed to Yemen. Transfer Notice, Ahmed v. Obama, No. 1:05-cv- 1678 (D.D.C. Sept. 28, 2009); see Scott Shane, Detainee s Case Illustrates Bind of Prison s Fate, N.Y. Times, Oct. 4, 2009, at A1; Shane & Weiser, supra. 1337. Hatim v. Obama, 677 F. Supp. 2d 1, 16 18 (D.D.C. 2009); id. at 17 (the witness s

symptoms were consistent with a depressive disorder, psychosis, post traumatic stress, and a

severe personality disorder ); see Chisun Lee, Judges Reject Evidence in Gitmo Cases, Nat l L.J., Aug. 16, 2010, at 1; Carol Rosenberg, Federal Judge Orders 32nd Detainee Freed from Guantánamo, Miami Herald, Dec. 16, 2009; Wilber, Snag, supra note 1334.
166 National Security Case Management Studies (11/14/2011)

The cooperating detainee was transferred to Spain in May 2010.1338

Product of Torture

Judge Huvelle agreed, on July 17, 2009, to suppress every statement made by

[Mohammed Jawad] since his arrest as a product of torture. 1339 The government

had declined to contest the motion to suppress1340 and determined after the motion 

was granted that it will no longer treat petitioner as detainable under the Authorization for Use of Military Force. 1341 The government noted, however, that the

Attorney General has directed that the criminal investigation of petitioner in connection with the allegation that petitioner threw a grenade at U.S. military personnel continue. 1342

Jawad may have been as young as 12 years old when he was captured in Kabul in December 2002.1343 On October 9, 2007, military commission charges were 

filed against Jawad for the alleged throwing of a grenade.1344 It was reported that

a military prosecutor returned to civilian status after concluding that Jawad might

not be guilty.1345 On July 30, 2009, Judge Huvelle granted Jawad s writ petition.1346 Jawad was flown home on August 24 to Kabul, where he met with President Hamid Karzai.1347

 Hatim s writ was vacated and the case remanded for reevaluation in light of subsequent case

law. Hatim v. Obama, 632 F.3d 720 (D.C. Cir. 2011); see Court Orders Detainee Held, N.Y. Times, Feb. 16, 2011, at A18.

1338. See Mónica Ceberio Belaza, Al Qaeda Will Kill Me if I Go Home, El País, June 29, 2010, at 3; Shane & Weiser, supra note 1336. 1339. Order, Al-Halmandy v. Obama, No. 1:05-cv-2385 (D.D.C. July 17, 2009) [hereinafter

Jawad Suppression Order], available at 2009 WL 2149949; see William Glaberson, U.S. Judge

Challenges Evidence on a Detainee, N.Y. Times, July 23, 2009, at A22 (reporting that a military

judge wrote last year that Afghan officials had threatened to kill Mr. Jawad and his family if he

did not confess to the grenade attack ). 1340. Government Response, Al-Halmandy, No. 1:05-cv-2385 (D.D.C. July 15, 2009); see

Glaberson, supra note 1339. 1341. Notice at 1, Al-Halmandy, No. 1:05-cv-2385 (D.D.C. July 24, 2009) [hereinafter Jawad

Nondetainability Notice].

1342. Id. at 2; see William Glaberson, Government Might Allow Trial in U.S. for Detainee, N.Y. Times, July 25, 2009, at A14 ( In a statement accompanying Friday s court filing, the Justice

Department said that an administration task force reviewing the cases of Guantanamo detainees 

had previously made the decision to refer Mr. Jawad s case for possible prosecution. ). 1343. See Guantánamo Detainee Released, N.Y. Times, Aug. 25, 2009, at A8 [hereinafter Detainee Released] ( Relatives say he was about 12 when he was arrested. The Pentagon said a bone

scan showed that he was about 17 at the time. ). 1344. Charge Sheet, United States v. Jawad (U.S. Mil. Comm. Oct. 9, 2007), available at

http://www.mc.mil; see William Glaberson, Guántanamo Detainee Is Charged in 02 Attack, N.Y. 

Times, Oct. 12, 2007, at A19; Glaberson, supra note 1339; see Hafetz, supra note 502, at 246.

1345. Peter Finn, Guantanamo Prosecutor Quits, Says Evidence Was Withheld, Wash. Post, Sept. 25, 2008, at A6; William Glaberson, Guantánamo Prosecutor Is Quitting in Dispute Over a

Case, N.Y. Times, Sept. 25, 2008, at A18.

1346. Order, Al-Halmandy, No. 1:05-cv-2385 (D.D.C. July 30, 2009) [hereinafter Jawad Writ], 

available at 2009 WL 2365846; see William Glaberson, Judge Orders a Detainee to Be Freed in August, N.Y. Times, July 31, 2009, at A14; Hafetz, supra note 502, at 247.
National Security Case Management Studies (11/14/2011) 167

Weak Evidence

Judge Kollar-Kotelly granted Khalid Abdullah Mishal al-Mutairi s writ on July

29, 2009.1348 Al-Mutairi, born in Kuwait City in 1975, traveled to Afghanistan a

few days after the September 11, 2001, attacks with $15,000 in United States currency.1349 He was one of the detainees named in the 2002 petition filed by fathers

and brothers of Kuwaiti detainees.1350 The government claimed that al-Mutairi 

was part of Al-Wafa, an Islamic foundation accused of supporting terrorism,1351

but al-Mutairi claimed that he was in Afghanistan to fund the creation of a

mosque and to support Al-Wafa s charitable projects.1352 Judge Kollar-Kotelly 

found al-Mutairi s story about charitable intents and his explanation of how he

lost his passport of dubious credibility,1353 but she also found the government s

evidence justifying his detention weak.1354 The government released al-Mutairi to

Kuwait.1355

Three Writs Denied; One Writ Reversed

From August through September 2009, Judges Robertson,1356 Kollar-Kotelly,1357

and Collyer1358 each denied a habeas petition. The court of appeals affirmed.1359

On July 13, 2010, the court of appeals reversed a writ of habeas corpus

granted to Mohammed al-Adahi by Judge Kessler on August 17, 2009.1360 Al-

 Military Commission proceedings against Jawad were dismissed on July 31, 2009. Direction, Jawad (U.S. Mil. Comm. July 31, 2009), available at http://www.mc.mil. 1347. See Detainee Released, supra note 1343. 1348. Al Mutairi v. United States, 644 F. Supp. 2d 78 (D.D.C. 2009).

1349. Id. at 86.

1350. Al-Odah Docket Sheet, supra note 1026. 1351. See Thom Shanker & James Dao, U.S. Planes Bomb Taliban Compound in Kandahar, N.Y. Times, Nov. 28, 2001, at A1.

1352. Al Mutairi, 644 F. Supp. 2d at 86 87.

1353. Id. at 87 89.

1354. Id. at 89 96.

1355. Transfer Notice, Al-Odah v. Obama, No. 1:02-cv-828 (D.D.C. Oct. 9, 2009); Rosenberg, 

supra note 1284. 1356. Awad v. Obama, 646 F. Supp. 2d 20 (D.D.C. 2009) (finding that Adham Mohammed al- Awad was an al-Qaeda fighter, but acknowledging that [t]he case against Awad is gossamer thin

and [i]t seems ludicrous to believe that he[ marginally literate who has spent more than seven

of his 26 years in American custody ]poses a security threat now ). 1357. Al Odah v. United States, 648 F. Supp. 2d 1 (D.D.C. 2009) (finding that Fawzi Khalid

Abdullah Fahad al-Odah became a part of the forces of the Taliban and al-Qaeda).

1358. Order, Shafiq v. Obama, No. 1:05-cv-1506 (D.D.C. Sept. 3, 2009) [hereinafter Barhoumi 

Order] (denying the writ to Sufyian Barhoumi [f]or the reasons stated on the record in a closed

hearing ); Transcript, id. (Sept. 3, 2009, filed Jan. 4, 2010) [hereinafter Barhoumi Transcript].

1359. Barhoumi v. Obama, 609 F.3d 416 (D.C. Cir. 2010); Odah v. United States, 611 F.3d 8

(D.C. Cir. 2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1812 (2011); Awad v. Obama, 608 F.3d 1

(D.C. Cir. 2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1814 (2011); see Justices Reject Appeals, supra note 1209. 1360. Al-Adahi v. Obama, 613 F.3d 1102 (D.C. Cir. 2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1001 (2011); see Charlie Savage, Reversal Upholds Detention of Yemeni at Guantánamo, N.Y. 

Times, July 14, 2010, at A19 ( Courts have now upheld the detention of 15 Guantánamo prisoners, while ordering 36 freed. ).
168 National Security Case Management Studies (11/14/2011)

Adahi, a citizen of Yemen, arranged a marriage between his sister and Riyadh

Abd al-Aziz Almujahid, a Yemini living in Kandahar, Afghanistan.1361 In July

2001, al-Adahi took a six-month leave of absence from his security job in Yemen

and delivered his sister to Almujahid, and Osama Bin Laden hosted a celebration

of the marriage.1362 In addition to meeting with Bin Laden while away from

home, al-Adahi attended the al-Farouq training camp, but he was expelled from

the camp for smoking tobacco, he claimed.1363 Judge Kessler saw the evidence

as showing al-Adahi s brother-in-law as a close associate of Bin Laden s but not

al-Adahi;1364 the court of appeals saw the evidence as more inculpatory of al- Adahi.1365

Reluctant Algerians

On November 19, 2009, Judge Kessler granted a writ to Farhi Saeed Bin Mohammed, an Algerian who lived in Europe under false names with false documents and traveled to Afghanistan along a terrorist pipeline. 1366 The Government has failed to provide reliable evidence that Petitioner received any training

in weaponry or fighting, or that he engaged in actual fighting of any kind on behalf of al-Qaida and/or the Taliban. 1367

On May 27, 2010, Bin Mohammed sought an injunction against his return to

Algeria, because he feared he would be harmed there.1368

Petitioner asks to enjoin that transfer because of his great fear that he will be caught in a

no win situation: either the Government of Algeria will arrest him as a terrorist because

of his detention at Guantanamo Bay, and then torture, try, and possibly execute him, or

he will be targeted for recruitment and retribution by Islamic extremist groups who have

been terrorizing the Algerian population for close to 20 years and who will kill him if he

refuses to join their ranks. Petitioner stated that he no longer has family ties, friends, or

prospects in Algeria. He has declared that he would rather stay at Guantanamo Bay for

the rest of his life than be returned to Algeria.1369

On June 29, Judge Kessler enjoined Bin Mohammed s transfer to Algeria.1370 On 

July 8, the court of appeals summarily reversed and dissolved the injunction.1371

 1361. Al-Adahi, 613 F.3d at 1106; Al-Adahi Habeas Grant, supra note 1324, at 14.

1362. Al-Adahi, 613 F.3d at 1102, 1106; Al-Adahi Habeas Grant, supra note 1324, at 14 15, 

17 & n.9.

1363. Al-Adahi, 613 F.3d at 1102, 1106 09; Al-Adahi Habeas Grant, supra note 1324, at 17, 20 31.

1364. Al-Adahi Habeas Grant, supra note 1324, at 40 41.

1365. Al-Adahi, 613 F.3d 1102.

1366. Bin Mohammed v. Obama, 689 F. Supp. 2d 38, 39, 45 46 (D.D.C. 2009), reprinted at

704 F. Supp. 2d 1; see Carol Rosenberg, Fearful Detainee Sent Home to Algeria, Miami Herald, Jan. 7, 2011, at 4A.

1367. Bin Mohammed, 689 F. Supp. 2d at 67.

1368. Opinion at 4, Bin Mohammed v. Obama, No. 1:05-cv-1347 (D.D.C. June 29, 2010)

[hereinafter Bin Mohammed Injunction], filed as Ex. 1, Public (Redacted) Motion, Bin Mohammed v. Obama, No. 10-5218 (D.C. Cir. Sept. 21, 2010); Order, Bin Mohammed, No. 1:05-cv- 1347 (D.D.C. June 3, 2010); Notice of Filing, id. (May 26, 2010); see Rosenberg, supra note 

1366. 1369. Bin Mohammed Injunction, supra note 1368, at 4.

1370. Id. at 12.
National Security Case Management Studies (11/14/2011) 169

On July 16, the Supreme Court denied Bin Mohammed s application for a stay of

the appellate decision, with Justices Ginsburg, Breyer, and Sotomayor dissenting.1372 On January 4, 2011, the government transported Bin Mohammed to Algeria.1373

Five other Algerians preferred staying at Guantánamo Bay to a return to Algeria.1374 Judge Walton denied Abdul Aziz Naji s application for an injunction

against transfer on June 7, 2010.1375 On July 16, the court of appeals determined

that its decision in Bin Mohammed s case governed Naji s case.1376 On the same

day, the Supreme Court denied Naji s application for a stay pending a certiorari

petition.1377 On July 19, the government filed a notice that Naji had been sent to

Algeria.1378

The other four Algerians remain at Guantánamo Bay. On February 22, 2007, the government notified Ahmed Belbacha that he was cleared for release.1379 In 

July, Judge Collyer denied Ahmed Belbacha an injunction against transfer to Algeria.1380 The court of appeals remanded the case back to Judge Collyer to preserve jurisdiction over the matter pending the Supreme Court s resolution of

Boumediene.1381 A day after the Supreme Court s Boumediene decision, Judge

Collyer enjoined Belbacha s transfer pending briefing and resolution of the is-

 1371. Order, Bin Mohammed, No. 10-5218 (D.C. Cir. July 8, 2010) [hereinafter Bin Mohammed Injunction Reversal]; see Peter Finn, Six Algerians Say They Prefer Guantanamo Over Repatriation, Wash. Post, July 10, 2010, at A3.

Judge David S. Tatel dissented in part from the decision by Judges Thomas B. Griffith and

Brett M. Kavanaugh. Judge Tatel would have remanded for a determination of whether the government had taken into account danger to Bin Mohammed from entities other than the Algerian

government. Bin Mohammed Injunction Reversal, supra (Tatel, dissenting).

1372. Order, Bin Mohammed v. Obama, No. 10A52 (U.S. July 16, 2010); see Peter Finn, Guantanamo Bay Detainee Is First to Be Sent Home Unwillingly, Wash. Post, July 20, 2010, at

A4; Justices Decide U.S. May Send Two Detainees Back to Algeria, N.Y. Times, July 18, 2010, at

15 [hereinafter Back to Algeria].

1373. Transfer Notice, Mohammed, No. 1:05-cv-1347 (D.D.C. Jan. 7, 2011); see Rosenberg, 

supra note 1366. 1374. See Notice of Filing, In re Guantanamo Bay Detainee Litig., No. 1:08-mc-442 (D.D.C. 

July 31, 2009) (filing by Djamel Ameziane, No. 1:05-cv-392; Farhi Saeed Bin Mohammed, No. 1:05-cv-1347; Motai Saib, No. 1:05-cv-1353; Nabil Hadjarab, No. 1:05-cv-1504; Ahmed Belbacha, No. 1:05-cv-2349; and Abdul Aziz, No. 1:05-cv-2386); Finn, supra note 1372; Back to Algeria, supra note 1372. 1375. Sealed Order, Mohammon v. Obama, No. 1:05-cv-2386 (D.D.C. June 7, 2010), filed as

Ex. 8, Public (Redacted) Response, Naji v. Obama, No. 10-5191 (D.C. Cir. July 29, 2010) [herein- after Naji Government Response].

1376. Order, Naji, No. 10-5191 (D.C. Cir. July 16, 2010).

1377. Order, Naji v. Obama, No. 10A70 (U.S. July 16, 2010).

1378. Notice of Transfer, Mohammon, No. 1:05-cv-2386 (D.D.C. July 19, 2010); see Finn, supra note 1372; Back to Algeria, supra note 1372. 1379. See Craig Whitlock, 82 Inmates Cleared but Still Held at Guantanamo, Wash. Post, Apr. 

29, 2007, at A1.

1380. Order, Ben Bacha v. Bush, No. 1:05-cv-2349 (D.D.C. July 27, 2007), available at 2007 

WL 2422031. 1381. Belbacha v. Bush, 520 F.3d 452 (D.C. Cir. 2008); see Joby Warrick, U.S. Transfers Bin Laden Aide, Wash. Post, Mar. 15, 2008, at A3.
170 National Security Case Management Studies (11/14/2011)

sues left unresolved in Boumediene. 1382 On November 4, 2009, in a possibly

merely symbolic gesture, the town of Amherst, Massachusetts voted to accept

Belbacha.1383 In light of the court of appeals decision in Kiyemba v. Obama

1384

that the courts did not have the power to enjoin detainee transfers, Judge Hogan

dissolved Judge Collyer s injunction on February 4, 2010, by sealed order,1385 and 

denied reconsideration on April 19.1386

By sealed order, on June 17, 2010, Judge Collyer denied Motai Saib s sealed

May 24 injunction motion.1387 On July 13, Nabil Hadjarab sought an injunction 

against his transfer to Algeria.1388 For Djamel Ameziane, the Supreme Court denied a sealed petition for certiorari.1389

On August 20, Hadjarab and Belbacha moved that their cases proceed to merits hearings.1390 On January 14, 2011, Judge Collyer granted Belbacha s motion

but denied Hadjarab s.1391 Hadjarab s motion for reconsideration was granted on

March 30.1392

Ten Writs Denied and Another Writ Terminated; Two Writs Reversed and Two 

Writs Vacated; One Writ Granted and One Writ Still on Appeal

From December 2009 through October 2010, Judges Hogan,1393 Kessler,1394 Lamberth,1395 Kennedy,1396 Robertson,1397 Bates,1398 Walton,1399

and Leon

1400 denied 

habeas petitions.

 1382. Order, Ben Bacha, No. 1:05-cv-2349 (D.D.C. June 13, 2008); see In re Guantanamo Bay 

Detainee Litig., 706 F. Supp. 2d 120, 121 22 (D.D.C. 2010).

1383. See Carol Rosenberg, U.S. Court Orders Russian Detainee Freed from Guantánamo, Miami Herald, May 14, 2010, at 6A.

1384. 561 F.3d 509 (D.C. Cir. 2009), cert. denied, ___ U.S. ___, 130 S. Ct. 1880 (2010); see

Hafetz, supra note 502, at 170.

1385. Docket Sheet, Ben Bacha, No. 1:05-cv-2349 (D.D.C. Dec. 8, 2005); In re Guantanamo 

Bay Detainee Litig., 706 F. Supp. 2d at 122.

1386. In re Guantanamo Bay Detainee Litig., 706 F. Supp. 2d 120.

1387. Notice, Saib v. Obama, No. 1:05-cv-1353 (D.D.C. May 26, 2010) (noting motion);

Docket Sheet, id. (July 5, 2005) (noting order).

1388. Notice of Filing, Nabil v. Obama, No. 1:05-cv-1504 (D.D.C. July 15, 2010).

1389. Ameziane v. Obama, ___ U.S. ___, 131 S. Ct. 1673 (2011).

1390. Notice, Ben Bacha, No. 1:05-cv-2349 (D.D.C. Aug. 20, 2010); Notice, Nabil, No. 1:05- cv-1504 (D.D.C. Aug. 20, 2010).

1391. Order, Ben Bacha, No. 1:05-cv-2349 (D.D.C. Jan. 14, 2011); Order, Nabil, No. 1:05-cv- 1504 (D.D.C. Jan. 14, 2011).

1392. Docket Sheet, Nabil, No. 1:05-cv-1504 (D.D.C. July 28, 2005).

1393. Anam v. Obama, 696 F. Supp. 2d 1 (D.D.C. 2010) (finding that Musa ab Omar al- Madhwani trained, traveled, and associated with al-Qaeda members); Order, Anam v. Obama, No. 1:04-cv-1194 (D.D.C. Jan. 6, 2010); Anam Docket Sheet, supra note 1044 (noting oral ruling on

Dec. 14, 2009); see Rosenberg, supra note 1337; Del Quentin Wilber, U.S. Can Continue to Detain Yemeni, Wash. Post, Dec. 15, 2009, at A12.

The court of appeals affirmed. Al-Madhwani v. Obama, 642 F.3d 1071 (D.C. Cir. 2011), cert. 

pending, Docket Sheet, No. 11-7020 (U.S. Oct. 25, 2011).

1394. Al-Adahi v. Obama, 698 F. Supp. 2d 48 (D.D.C. 2010) (finding that Fahmi Salem al- Assani received military training from al-Qaeda); Al-Adahi v. Obama, 692 F. Supp. 2d 85 (D.D.C. 

2010) (finding that Suleiman Awadh Bin Agil al-Nahdi received military training from al-Qaeda 

and performed guard duties for al-Qaeda at Tora Bora); Order, Al-Adahi v. Bush, No. 1:05-cv-280 
National Security Case Management Studies (11/14/2011) 171

 (D.D.C. Feb. 24, 2010); Docket Sheet, id. (Feb. 7, 2005) [hereinafter Al-Adahi Docket Sheet]; see

Carol Rosenberg & Mark Seibel, Judge OKs Detention of 2 Men Bush Panel Cleared, Miami Herald, Feb. 24, 2010.

Appeals were dismissed voluntarily. Order, Al-Nahdi v. Obama, No. 10-5127 (D.C. Cir. June

21, 2011); Order, Al-Assani v. Obama, No. 10-5126 (D.C. Cir. June 21, 2011).

Another petitioner elected not to proceed with his scheduled January 2010 merits hearing, so

Judge Kessler dismissed his petition without prejudice on December 22, 2009. Order, Al-Adahi, No. 1:05-cv-280 (D.D.C. Dec. 22, 2009), available at 2009 WL 5196155; see Al-Adahi, 698 F. Supp. 2d at 50 n.1, 51; Al-Adahi, 692 F. Supp. 2d at 86 n.1, 88.

1395. Al Warafi v. Obama, 704 F. Supp. 2d 32 (D.D.C. 2010) (finding that Mukhtar Yahia Naji al-Warafi assisted with medical care to Taliban fighters as part of the Taliban).

The court of appeals affirmed Judge Lamberth s finding that al-Warafi acted as part of the Taliban, but remanded the case for a more specific determination whether he satisfied the Geneva

Conventions criteria for protected medical personnel. Judgment, Al-Warafi v. Obama, No. 10- 5170 (D.C. Cir. Feb. 22, 2011). On August 31, 2011, Judge Lamberth concluded that al-Warafi 

could not prove permanent medical personnel status because he lacked required identification. Opinion at 15 18, Al-Wrafie v. Obama, No. 1:09-cv-2368 (D.D.C. Aug. 31, 2011) [hereinafter Al- Wrafie Opinion]. Another appeal is pending. Docket Sheet, Al-Warafi v. Obama, No. 11-5276 

(D.C. Cir. Oct. 17, 2011).

1396. Abdah v. Obama, 709 F. Supp. 2d 25 (D.D.C. 2010) (finding that Yasein Khasem Mohammad Esmail fought on behalf of al-Qaeda); see Opinion, Abdah v. Obama, No. 1:04-cv-1254 

(D.D.C. June 23, 2010), available at 2010 WL 2521431 (denying motion for reconsideration); see 

also Lee, supra note 1337. The court of appeals affirmed. Esmail v. Obama, 639 F.3d 1075 (D.C. Cir. 2011); see Shane & 

Weiser, supra note 1336. 1397. Order, Khalifh v. Obama, No. 1:05-cv-1189 (D.D.C. June 14, 2010) [hereinafter Khalifh

Opinion], available at 2010 WL 2382925 (finding that Omar Mohammed Khalifh was part of al- Qaeda).

An appeal was voluntarily dismissed. Order, Khalifh v. Obama, No. 10-5241 (D.C. Cir. Jan. 28, 2011).

1398. Khan v. Obama, 741 F. Supp. 2d 1 (D.D.C. 2010) (finding that Shawali Khan was a

member of Hezb-i-Islami Gulbuddin, a terrorist organization affiliated with the Taliban and al- Qaeda); Order, Khan v. Obama, No. 1:08-cv-1101 (D.D.C. Sept. 3, 2010); see Khan v. Obama, 646 F. Supp. 2d 6 (D.D.C. 2009) (denying Khan s motion for judgment on the preliminary

record).

The court of appeals affirmed on September 6, 2011. Khan v. Obama, 655 F.3d 20 (D.C. Cir. 2011). On September 23, 2011, the detainee filed a sealed motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60. Petitioner Notice, Khan, No. 1:08-cv-1101 (D.D.C. Sept. 26, 2011). In advance of its response to this motion, the government announced that it would 

no longer rely on statements made by Petitioner Shawali Khan during custodial interrogations, or

during his Administrative Review Board ( ARB ) proceedings, to justify his detention. . . . The

sole statements by Petitioner upon which Respondents continue to rely are those made during his

merits hearing testimony on May 17, 2010. Government Notice, id. (Oct. 12, 2011).

1399. Sulayman v. Obama, 729 F. Supp. 2d 26 (D.D.C. 2010) (finding that Abd al-Rahman 

Abdu Abu al-Ghayth Sulayman was part of the Taliban); Opinion, Mohammon v. Obama, No. 1:05-cv-2386 (D.D.C. Oct. 7, 2010) (finding that Toffiq Nasser Awad al-Bihani was part of al- Qaeda); see Carol Rosenberg, Yemeni Captive Loses Ruling, Miami Herald, Oct. 16, 2010 (concerning al-Bihani); Carol Rosenberg, Yemeni Psych Patient Ordered Freed, Miami Herald, July

21, 2010 [hereinafter Psych Patient] (concerning Sulayman).

Sulayman s appeal is pending. Docket Sheet, Sulaiman v. Obama, No. 10-5292 (D.C. Cir. Sept. 8, 2010) (noting that oral argument was held on Sept. 16, 2011). Agreeing that the denial of

his petition was compelled by circuit law, al-Bihani moved for summary affirmance so that a peti-
172 National Security Case Management Studies (11/14/2011)

Judge Huvelle s August 3, 2010, denial of Sabry Mohammad Ebrahim al- Qurashi s motion to suppress his testimony

1401 had the practical effect of terminating his habeas petition.1402 Judge Huvelle found evidence of voluntariness to

be credible and claims of coercion to be exaggerated.1403

On March 29, 2011, the court of appeals reversed a writ granted to Uthman

Abdul Rahim Mohammed Uthman.1404 Using a command structure test to determine whether Uthman was part of al-Qaeda, Judge Kennedy found that evidence

Uthman was a bodyguard for Osama Bin Laden largely derived from tortureinduced statements by other detainees.1405 The court of appeals determined that

the command structure test had been rejected by subsequent appellate decisions1406

and Uthman s capture near Tora Bora in December 2001 with a small

group of men, two of whom were al Qaeda members and bodyguards for Osama

Bin Laden and one of whom was a Taliban fighter, 1407among other facts, made

it more likely than not that Uthman was part of al-Qaeda.1408

The court of appeals, on June 10, 2011, also reversed

1409

a writ granted by

Judge Friedman the previous July.1410 In 2009, the government obtained a stay in

the case because it had approved Hussain Salem Mohammad Almerfedi s transfer

 tion for certiorari could be filed with the Supreme Court. Order, Al-Bihani v. Obama, No. 10-5352 

(D.C. Cir. Feb. 10, 2011), cert. pending, Docket Sheet, No. 10-1383 (U.S. May 11, 2011) (noting

that a response is due Nov. 23, 2011).

1400. Obaydullah v. Obama, 744 F. Supp. 2d 344 (D.D.C. 2010) (finding that Obaydullah was

part of an al-Qaeda bomb cell).

An appeal is pending. Docket Sheet, Obaydullah v. Obama, No. 11-5123 (D.C. Cir. May 24, 2011) (noting that briefing should be completed by Mar. 26, 2012).

The detainee has been designated as subject to trial by a military commission. Obaydullah, 744 

F. Supp. 2d at 347; see Charlie Savage, U.S. Prepares to Lift Ban on Guantánamo Cases, N.Y. Times, Jan. 20, 2011, at A1.

1401. Al-Qurashi v. Obama, 733 F. Supp. 2d 69 (D.D.C. 2010).

1402. Interview with Hon. Ellen Segal Huvelle, June 13, 2011.

1403. Al-Qurashi, 733 F. Supp. 2d at 81.

1404. Uthman v. Obama, 637 F.3d 400, 402, 408 (D.C. Cir. 2011), cert. pending, Docket 

Sheet, No. 11-413 (U.S. Aug. 29, 2011) (noting that a response is due Dec. 2, 2011).

1405. Abdah v. Obama, 708 F. Supp. 2d 9 (D.D.C. 2010); see Opinion, Abdah v. Obama, No. 1:04-cv-1254 (D.D.C. May 19, 2010) (denying motion for reconsideration); see also Judge Orders 

Release of Guantánamo Detainee, Seattle Times, Feb. 26, 2010, at A5.

1406. Uthman, 637 F.3d at 402.

1407. Id. at 404.

1408. Id. at 402, 403 07.

1409. Almerfedi v. Obama, 654 F.3d 1 (D.C. Cir. 2011); see Docket Sheet, Almerfedi v. Obama, No. 11A220 (U.S. Aug. 22, 2011) (noting an extension until Nov. 7, 2011, to file a petition

for a writ of certiorari).

1410. Almerfedi v. Obama, 725 F. Supp. 2d 18 (D.D.C. 2010) (finding that the government s

claim that Hussain Salem Mohammad Almerfedi was an al-Qaeda facilitator was not supported by 

sufficient evidence); see Charlie Savage, Rulings Raise Doubts on Policy on Transfer of Yemenis, N.Y. Times, July 9, 2010, at A9.
National Security Case Management Studies (11/14/2011) 173

from Guantánamo Bay, but the government was unable to accomplish the transfer, so the case proceeded to the merits.1411

On November 5, 2010, the court of appeals vacated a writ1412granted to Mohammedou Ould Salahi by Judge Robertson on March 22.1413 Salahi, a Mauritanian, swore bayat, an oath of loyalty, to al-Qaeda in 1991, a time in which the

United States and al-Qaeda both opposed Afghanistan s communist government.1414 The courts determined that the question was whether Salahi was still

part of al-Qaeda when he was captured in 2001.1415 The court of appeals remanded the case for reevaluation in light of guidance provided by intervening appellate decisions.1416 Because of Judge Robertson s June 1 retirement,1417 Salahi s

petition was reassigned to Judge Lamberth.1418 (The district court decided that

new judges those joining the bench in 2010 or later would not receive Guantánamo Bay habeas petitions.1419)

On October 14, 2011, the court of appeals vacated a writ1420 granted on July

21, 2010, by Judge Kennedy to Adnan Farhan Abdul Latif.1421 Latif was born in

Udayn, Yemen, and he traveled to Pakistan and Afghanistan in 2001.1422 He 

claimed that he was traveling for medical care, and Judge Kennedy determined

that the government did not prove its contention that he was an al-Qaeda recruit

was more probable.1423 The court of appeals determined that Judge Kennedy

failed to give the government s report on evidence against Latif a sufficient presumption of regularity.1424

Judge Kennedy granted habeas corpus relief to Mohamed Mohamed Hassan

Odaini on May 26, 2010,1425and the government transferred him to Yemen the

 1411. Almerfedi, 725 F. Supp. 2d at 21; see Almerfedi, 654 F.3d at 4 n.3 ( whether a detainee

has been cleared for release is irrelevant to whether a petitioner may be detained lawfully ). 1412. Salahi v. Obama, 625 F.3d 745 (D.C. Cir. 2010).

1413. Salahi v. Obama, 710 F. Supp. 2d 1 (D.D.C. 2010); Docket Sheet, Salahi v. Bush, No. 1:05-cv-569 (D.D.C. Mar. 18, 2005).

1414. Salahi, 625 F.3d at 748, 751; Salahi, 710 F. Supp. 2d at 3 4, 9 10.

1415. Salahi, 625 F.3d at 751; Salahi, 710 F. Supp. 2d at 6.

1416. Salahi, 625 F.3d at 746 47.

1417. Federal Judicial Center Biographical Directory of Federal Judges, http://www.fjc.gov/ 

public/home.nsf/hisj. 1418. Reassignment Notice, Salahi, No. 1:05-cv-569 (D.D.C. Oct. 11, 2011).

1419. Interview with Hon. Royce C. Lamberth, May 13, 2011.

1420. Latif v. Obama, ___ F.3d ___, 2011 WL ___ (D.C. Cir. 2011); Opinion, Latif v. Obama, No. 10-5319 (D.C. Cir. Nov. 9, 2011) [hereinafter D.C. Cir. Latif Opinion].

1421. Opinion, Abdah v. Obama, No. 1:04-cv-1254 (D.D.C. Aug. 16, 2010) [hereinafter

D.D.C. Latif Opinion], available at 2010 WL 3270761; see Rosenberg, Psych Patient, supra note 

1399. 1422. D.D.C. Latif Opinion, supra note 1421, at 5 6.

1423. Id. at 25 28.

1424. D.C. Cir. Latif Opinion, supra note 1420, at 2, 5 31.

1425. Abdah v. Obama, 717 F. Supp. 2d 21 (D.D.C. 2010); see Peter Finn, U.S. Revisits Transfers to Yemen, Wash. Post, June 19, 2010, at A3; Carol Rosenberg, U.S. Sends Yemeni Detainee

Home, Miami Herald, July 14, 2010, at 4A; Savage, supra note 1410.
174 National Security Case Management Studies (11/14/2011)

following July.1426 Odaini was born in Taiz, Yemen, and his father worked for the

Yemeni Security Service.1427 On March 28, 2002, he was a student at Salafia University in Pakistan spending the night at a nearby guesthouse after spending the

evening talking to other Yemeni, Salafia University students who lived there

about religion as well as their past and where they lived in Yemen. 1428 At

around 2:00 a.m., Pakistani police raided the house and seized all of its occupants. 1429 Odaini was transferred to Guantánamo Bay in June.1430 Judge Kennedy 

concluded, There is no evidence that Odaini has any connection to Al Qaeda. 1431

The court of appeals is reviewing a May 13, 2010, writ of habeas corpus

granted by Judge Kennedy to a Russian, Ravil Mingazov, who left Russia in 2000 

to raise his child in a Muslim country and was captured in Pakistan in 2002.1432

Judge Kennedy found that his claims in captivity of support of the Taliban were

motivated by his desire not to be returned to Russia.1433 While an appeal was

pending, the government sought to present additional evidence to Judge Kennedy,1434

and the court of appeals agreed to hold the appeal in abeyance until Judge

Kennedy resolved the government s request.1435 A motion considered by Berkeley, California s city council to accept Mingazov was defeated.1436

Guantánamo Review Task Force

Four cabinent departments, the Director of National Intelligence, and the joint

chiefs of staff collaborated on a January 22, 2010, report on 240 Guantánamo Bay 

detainees subject to review. 1437 A total of 779 men had been detainees at Guan-

 1426. Transfer Notice, Abdah v. Obama, No. 1:04-cv-1254 (D.D.C. July 13, 2010); see Peter 

Finn, U.S. Will Repatriate Detainee to Yemen, Wash. Post, June 26, 2010, at A8; Rosenberg, supra note 1425; Savage, supra note 1410. 1427. Abdah, 717 F. Supp. 2d at 25; see Finn, supra note 1426. 1428. Abdah, 717 F. Supp. 2d at 26; see Finn, supra note 1425. 1429. Abdah, 717 F. Supp. 2d at 26.

1430. Id. at 23.

1431. Id. at 36; see Savage, supra note 1410 (reporting on a scathing opinion denouncing the

effort to keep imprisoning him despite overwhelming evidence that he was innocent of Qaeda

ties ). 1432. Opinion, Al-Harbi v. Obama, No. 1:05-cv-2479 (D.D.C. June 1, 2010) [hereinafter Mingazov Opinion], available at 2010 WL 2398883; see Rosenberg, supra note 1383. Mingazov is the last Russian detainee at Guantánamo Bay. Begg, supra note 1295, at 332 n.*.

1433. Mingazov Opinion, supra note 1432. 1434. Opposition Brief, Mingazov v. Obama, No. 10-5217 (D.C. Cir. Dec. 27, 2010) [hereinafter D.C. Cir. Mingazov Opposition Brief].

1435. Order, id. (Apr. 19, 2011) [hereinafter Mingazov Abeyance Order].

1436. See Doug Oakley, Berkeley Council Rejects Proposal to Invite Guantanamo Detainees

to Live in City, Oakland Trib., Feb. 16, 2011.

1437. Guantanamo Review Task Force Final Report (Jan. 22, 2010), available at http://www. 

justice.gov/ag/guantanamo-review-final-report.pdf; see Peter Finn, Panel on Guantanamo Backs

Indefinite Detention for Some, Wash. Post, Jan. 22, 2010, at A1; Charlie Savage, Detainees Will

Still Be Held, but Not Tried, Official Says, N.Y. Times, Jan. 22, 2010, at A14.
National Security Case Management Studies (11/14/2011) 175

tánamo Bay.1438 Of the 240 remaining detainees covered in the report, 44 had already been transferred out.1439 The Guantánamo Review Task Force determined

that 126 detainees could be transferred, including the 44 already transferred, 44

should be prosecuted, 48 could not be prosecuted because of tainted evidence but 

were too dangerous to transfer, and 30 were Yemenis who could be transferred

once a stable and suitable location was found for each.1440

Military Commission Guilty Plea

The first conviction before a Guantánamo Bay military commission in the Obama

administration resulted from a guilty plea by Ibrahim Ahmed Mahmoud al-Qosi 

to conspiracy and material support charges.1441 Al-Qosi was captured by Pakistani forces in the Tora Bora mountains in December 2001. 1442 He acknowledged

following the Qaeda leader, Osama Bin Laden, from Sudan to Afghanistan in

1996 and serving variously as a quartermaster, cook, bodyguard and driver at

Qaeda compounts. 1443 On August 11, 2010, a military jury returned a sentence

verdict of 14 years, but the plea agreement provided for a sentence cap of two

years.

1444 Al-Qosi s habeas petition was dismissed by stipulation on August

23.1445

 1438. Guantanamo Review Task Force Final Report, supra note 1437, at 1; see Omonira- Oyekanmi & Finn, supra note 1037; see also Fletcher & Stover, supra note 1022, at 42 ( The

camp population peaked at 660 in July 2003 and began to decline in November of that year (Figure 3). ); see also id. Fig. 3 (charting size of detainee population from January 2002 through July

2008).

1439. Guantanamo Review Task Force Final Report, supra note 1437, at ii.

1440. Id. at ii, 9 13.

1441. Trial Report, United States v. Al-Qosi (U.S. Mil. Comm. Aug. 11, 2010), available at

http://www.mc.mil; see Guantanamo Detainee Pleads Guilty, Wash. Post, July 8, 2010, at A3

( Qosi is only the fourth prisoner convicted in the controversial military tribunals since the Guantanamo Bay detention camp opened in January 2002. ); Frances Robles, Bin Laden Driver to War- Court Convict, Miami Herald, July 8, 2010, at 1A; Carol Rosenberg, Al Qaeda Cook Could Leave

Guantánamo in 2012, Miami Herald, Feb. 9, 2011; Charlie Savage, Guantánamo Detainee Pleads

Guilty in Terrorism Case, N.Y. Times, July 8, 2010, at A15; see also http://www.mc.mil/CASES/ 

MilitaryCommissions.aspx (military commission case records).

1442. Savage, supra note 1441. 1443. Id.

1444. Final Action, United States v. Al-Qosi (U.S. Mil. Comm. Feb. 3, 2011), available at

http://www.mc.mil; see Peter Finn, U.S. Lacks Policy on Housing Military Commission Convicts, Wash. Post, Aug. 12, 2010, at A2; Robles, supra note 1441; Carol Rosenberg, Canadian Terror Trial Deal Would Test Obama Pledge, Miami Herald, Oct. 24, 2010, at 3A; Carol J. Williams, Guilty Plea at Guantanamo Tribunal, Chi. Trib., Oct. 26, 2010, News, at 9.

In the military commission of Ibrahim Ahmed Mahmoud al Qosi, the sentence of 14 years confinement is approved and will be executed, but the execution of that part of the sentence

extending to confinement in excess of two (2) years from July 2, 2010, is suspended until such time as the United States Government determines that the accused has complied with

the terms of the pretrial agreement of June 9, 2010, or for a period of five (5) years from the date sentence was announced (August 11, 2010), whichever is sooner.

Final Action, supra. 1445. Order, Al-Qosi v. Obama, No. 1:04-cv-1937 (D.D.C. Aug. 23, 2010).
176 National Security Case Management Studies (11/14/2011)

Recusal

On April 22, 2009, the court transferred eight detainees in the 159-detainee case

filed by the Center for Constitutional Rights in December 2005 to a new case, which the court assigned to Judge Lamberth.1446 On January 29, 2010, one of the

detainee s attorneys filed a motion for Judge Lamberth s recusal.1447 The attorney

objected to a thought question attributed to Judge Lamberth in a reported interview by ProPublica: How confident can I be that if I make the wrong choice that

he won t be the one that blows up the Washington Monument or the Capitol? 1448

Although the thought question appears to pose a matter of general concern to all

judges in all Guantánamo Bay habeas cases, the motion expressed concern that

Judge Lamberth s observation created a question about a specific petitioner, Abdal Razak Ali: will this Court be willing to enter the great writ in his case if the

Government does not meet its burden or will this Court hold Petitioner indefinitely in fear that it might make a mistake? 1449

Rejecting the notion that its publicly expressed views provide any basis for

recusal, Judge Lamberth nevertheless recused himself [b]ecause this is much

ado about nothing, and petitioner s counsel has preferred to delay disposition of

the merits of the petition to address this sideshow. 1450

The court randomly assigned Ali s case to Judge Leon,1451who denied Ali s

petition on February 25, 2011.1452 An appeal is pending.1453

Five More Writs Denied

In 2011, Judge Urbina denied petitions for writs of habeas corpus by Mashour

Abdullah Muqbel Alsabri1454and Khirulla Said Wali Khairkhwa.1455 Appeals are

pending.1456

To resolve Guantánamo Bay habeas petitions, Judge Urbina requires both parties to submit proposed findings of fact and conclusions of law.1457 Judge Urbina

 1446. Docket Sheet, Mattan v. Obama, No. 1:09-cv-745 (D.D.C. Apr. 22, 2009) [hereinafter

Mattan Docket Sheet].

1447. Recusal Motion, id. (Jan. 29, 2010).

1448. Id. at 3, 10.

1449. Id. at 3.

1450. Order, id. (June 16, 2010).

1451. Mattan Docket Sheet, supra note 1446. 1452. Ali v. Obama, 770 F. Supp. 2d 1 (D.D.C. 2011); see Order, Ali v. Obama, No. 1:10-cv- 1020 (D.D.C. May 17, 2011) (denying a motion for rehearing); Order, id. (Mar. 11, 2011) (same);

see also Judge Upholds Algerian s Detention at Guantánamo, Miami Herald, Jan. 11, 2011.

1453. Docket Sheet, Ali v. Obama, No. 11-5102 (D.C. Cir. Apr. 29, 2011).

1454. Alsabri v. Obama, 764 F. Supp. 2d 60 (D.D.C. 2011) (finding that the petitioner served

as part of Taliban or al-Qaeda forces); see Carol Rosenberg, Court OKs Yemeni s Detention, Miami Herald, Feb. 5, 2011, at 5A.

1455. Khairkhwa v. Obama, ___ F. Supp. 2d ___, 2011 WL 2490960 (D.D.C. 2011) (finding

that the petitioner was, without question, a senior member of the Taliban ). 1456. Docket Sheet, Khairkhwa v. Obama, No. 11-5180 (D.C. Cir. July 29, 2011) (noting that

the public reply brief is due on Apr. 2, 2012); Docket Sheet, Alsabri v. Obama, No. 11-5081 (D.C. 

Cir. Apr. 1, 2011) (noting oral argument was heard on Oct. 24, 2011).

1457. Interview with Hon. Ricardo M. Urbina, Aug. 15, 2011.
National Security Case Management Studies (11/14/2011) 177

found that this not only focuses the judge s attention on key issues, but it helps

illuminate the credibility of the parties positions.1458 Judge Urbina noticed that

over the years the government s presentation of its cases improved substantially

and the petitioners presentations also improved.1459

Judges Kennedy1460 and Walton1461 also denied writ petitions in 2011.

Meanwhile, a sealed habeas petition on behalf of high-value detainee Mohd

Farik Bin Amin, also known as Zubair, was filed on May 16, 2011.1462

Transfers Halted

Since Farhi Saeed Bin Mohammed was transferred to Algeria over his objection

in January 2011, no detainee has been transferred out of Guantánamo Bay.1463 The 

defense appropriation act for 2011 forbids the transfer of Guantánamo Bay detain- ees except by court order or upon certification by the Secretary of Defense and the 

Secretary of State that the transferee country can ensure that the detainee cannot

engage or re-engage in terrorist activity. 1464

Challenge: Attorney Client Contacts

Right to Counsel

After the Supreme Court decided in Rasul that the courts have jurisdiction over

Guantánamo Bay detainees habeas petitions, the Soliciter General s office convened a meeting with attorneys from the Justice Department s civil division, representatives from the Department of Defense, and members of the Justice Department s Litigation Security Group.1465 The Litigation Security Group is a unit

of the Justice Department that works independently of the attorneys representing

the government in court and that provides the courts with classified information

security officers.1466 Among the services classified information security officers

provide the courts is facilitation of security clearances for attorneys.

 1458. Id.

1459. Id.

1460. Hentif v. Obama, ___ F. Supp. 2d ___, 2011 WL 4102538 (D.D.C. 2011) (finding that

Fadhel Hussein Saleh Hentif was more likely than not part of Al-Qaeda or the Taliban).

1461. Bostan v. Obama, ___ F. Supp. 2d ___ 2011 WL 5127620 (D.D.C. 2011) (finding that

Karim Bostan s admitted membership in Jamaat al-Tablighi and other evidence implied affiliation

with al-Qaeda); Hussein v. Obama, ___ F. Supp. 2d ___ 2011 WL 5114842 (D.D.C. 2011) (finding that Abdul Qader Ahmed Hussein s travels and activities in Afghanistan and Pakistan were

consistent with his being part of al-Qaeda or the Taliban).

1462. Docket Sheet, Bin Amin v. Obama, No. 1:11-cv-923 (D.D.C. May 16, 2011).

1463. See Peter Finn, Detainees Cleared for Release Are Still Waiting, Wash. Post, Nov. 9, 2011, at A16.

1464. Ike Skelton National Defense Authorization Act for Fiscal Year 2011, Pub. L. No. 111- 383, 124 Stat. 4351, § 1033 (2011); see Finn, supra note 1463. 1465. Interview with Dep t of Justice Litig. Sec. Group Staff, July 28, 2011.

1466. Reagan, supra note 173, at 17 18; supra, Introduction.
178 National Security Case Management Studies (11/14/2011)

In October, Judge Kollar-Kotelly determined that the detainees had rights to

counsel.1467 Soon thereafter the clerk s office issued to all detainees notices of

their rights to counsel in habeas proceedings.1468

Attorneys had to obtain security clearances to meet with the detainees.1469 All 

of the petitioners were provided with cleared counsel.1470

Travel to Guantánamo Bay

Reflections by habeas attorneys illuminate some logistical issues pertaining to

client visits:

To get to Guantánamo, you fly to Fort Lauderdale and then continue on to the base

on one of two small prop-plane carriers, Air Sunshine or Lynx Air. The planes have a

dozen or so seats but no toilet on board. When you check in for the three-and-a-half-hour 

flight, you re weighed along with your luggage to determine if the plane will be too

heavy to fly all the way to the base without a stop to refuel at Exuma in the Bahamas. The 

plane may not enter Cuban air space, so you fly to the easternmost end of the island, make a right turn, and descend to the airport on the leeward side of the base. There is no

prison on that side of the bay, and unsupervised movements are permitted, but amenities

such as restaurants or grocery stores are scarce. You stay at the former CBQ

Combined Bachelors Quarters at an attractive government room rate of approximately

$20 per night. A kitchenette and four twin beds furnish each two-room suite. 1471

. . . The morning routine for counsel is to take the 7:40 bus from the CBQ to a ferry, and then the 8:00 ferry to the windward side of the base where the prison camp is located

and where we lawyers are met by a military escort. While the leeward side is ramshackle

and barren, the windward side is surreal. There is a Starbucks, a McDonald s, a combined

Subway-Pizza Hut, a Wal-Mart-like big-box store called the Nex, and a gift shop.1472

. . . At every jail and prison at which I had previously visited a client, a lawyer was

forbidden to bring the prisoner anything but legal papers. The rules at Guantánamo, though, permit lawyers to bring all manner of food and drink to client meetings. The only 

limitation seems to be that the prisoner may consume it only during the meeting. . . .

 1467. Al Odah v. United States, 346 F. Supp. 2d 1, 5 (D.D.C. 2004); see Hafetz, supra note 

502, at 134.

1468. Interview with Hon. Alan Kay, June 21, 2011.

1469. Al Odah, 346 F. Supp. 2d at 14; see Thomas P. Sullivan, Imagine, in The Guantánamo

Lawyers, supra note 1023, at 42, 43 44 ( Before being permitted to write or visit your clients, you

must first obtain a secret security clearance, a process which involves the FBI and usually consumes months. ). Initially, the government proposed that attorneys be permitted to meet with their clients one

and only one time, but that could have been malpractice. Interview with Hon. Joyce Hens Green, Sept. 21, 2011.

1470. Interview with Hon. Joyce Hens Green, Sept. 21, 2011; Interview with Hon. Royce C. Lamberth, May 13, 2011.

1471. Sullivan, supra note 1469, at 43; see also Khan, supra note 1169, at 31 ( With the exception of one corporate law firm that always makes a grand entrance in a chartered private jet, the 

attorneys doing habeas work at Gitmo fly one of two commercial airlines, Air Lynx or Air Sunshine. ). Military personnel have other options for getting to the base. Wax, supra note 91, at 23.

1472. Gorman, supra note 1134, at 12. See generally Inside Guantanamo (National Geographic 

DVD 2009).

The Nex is the Navy Exchange. See Greenberg, supra note 1040, at 9.
National Security Case Management Studies (11/14/2011) 179

I had been alerted that my client would feel free to eat only if we lawyers ate. Always ready to go the extra mile for a client, I had prepared by eating nothing before

boarding the ferry.1473

. . . The vast majority of prisoners at Guantánamo do not speek English. They speak

Pashto, Dari, Russian, Farsi, Arabic, and other languages. Therefore, in order to communicate with clients, lawyers must bring interpreters with them to Guantánamo.

These interpreters are nothing short of courageous. . . . They submitted themselves to 

thorough background checks in order to obtain the necessary security clearances to travel

to Guantánamo. They asked employers for permission to take off work, days at a time, for trips to Guantánamo. They explained to loved ones, including small children, why

they would be away from home. In fact, because there is such a shortage of security- cleared interpreters, they devote even more time to Guantánamo trips than the attorneys

do.1474 Monitoring Communication

The government sought to perform a classification review of all documents, including attorney notes, taken out of a meeting with a detained client and to monitor all attorney conversations with selected detainees.1475 Judge Kollar-Kotelly 

rejected this infringement on the attorney client privilege.1476 She identified alternative procedures as more appropriate: Only one attorney would meet with a detainee; a classification review would only be required of any communications

about the meeting to another person, including the attorney s legal colleagues and

staff.1477

Judge Green later specified a slightly more relaxed standard of sharing for attorneys for other detainees: counsel for all petitioners in these cases who have

satisfied all necessary prerequisites and follow all procedures set forth herein may

share and discuss among themselves classified information to the extent necessary 

for the effective representation of their clients. 1478

Meetings with Clients for Petition Authorizations

When the government began to challenge the validity of fellow detainees as habeas petitioners next friends, the district court observed that applicable protective

orders granted detainees a right to meet directly with counsel, which would moot

the need for next friends.1479

One of Salim Muhood Adem s co-detainees was represented by counsel and

suggested that Adem should obtain counsel as well.1480 With the help of the co- detainee s attorney, volunteer counsel was found for Adem.1481 But the govern-

 1473. David Marshall, Escort Required, in The Guantánamo Lawyers, supra note 1023, at 47, 48.

1474. Carolyn M. Welshhans, Heroes in Any Language, in The Guantánamo Lawyers, supra

note 1023, at 103, 103 04.

1475. Al Odah v. United States, 346 F. Supp. 2d 1, 3 4 (D.D.C. 2004).

1476. Id. at 8 15.

1477. Id. at 13 15.

1478. In re Guantanamo Detainee Cases, 344 F. Supp. 2d 174, 180 (D.D.C. 2004).

1479. E.g., Oct. 6, 2006, Report and Recommendation, supra note 1155. 1480. Interview with Hon. Alan Kay, June 21, 2011.

1481. Id.
180 National Security Case Management Studies (11/14/2011)

ment prevented attorneys from meeting with Adem until Adem provided written

authorization for the representation (by attorneys he had been unable to meet

yet).1482

On December 9, 2005, the attorneys filed a motion for contempt, arguing that

the government was preventing them from meeting with Adem in order to thwart

Adem s habeas petition.1483 Judge Roberts referred the matter to Magistrate Judge

Kay, who ordered the government to comply with the applicable protective order

and permit counsel to visit Adem.1484 Judge Roberts affirmed Judge Kay s order,1485

and other judges affirmed similar orders by Judge Kay in their cases.1486

Adem was transferred to Sudan in 2007.1487

On December 13, 2005, the Center for Constitutional Rights filed a habeas petition on behalf of 63 detainees.1488 According to the Center s deputy legal director, Having conducted as complete a factual inquiry as the circumstances have

permitted to date, it is my good faith belief that, although they have been unable

to provide written authorization, the following Petitioners in fact desire that the

legal remedies available to them be pursued. 1489 Among the 63 detainees listed

was Houmad Warzly.1490

On December 13, 2006, a Sami al-Hajj of Guantánamo Bay signed a statement that he wished to act as next friend on behalf of apparently 22 detainees.1491

One of the detainees listed was Hamoud Abdullah Hamoud Hassan al-Wady.1492

The signed statement bears a fax date of January 15, 2007, and it was filed as a

pro se habeas petition on July 17, 2008, with the other 21 names redacted.1493

 1482. Id.

1483. Contempt Motion, Adem v. Bush, No. 1:05-cv-723 (D.D.C. Dec. 9, 2005).

1484. Adem v. Bush, 425 F. Supp. 2d 7, 26 (D.D.C. 2006); see Fogler, supra note 1123, at

116.

1485. Opinion, Adem, No. 1:05-cv-723 (D.D.C. Apr. 28, 2006), available at 2006 WL

1193853; see Fogler, supra note 1123, at 116. 1486. Order, Kiyemba v. Bush, No. 1:05-cv-1509 (D.D.C. Aug. 7, 2006), available at 2006 

WL 2255736 (Urbina); Order, Razakah v. Bush, No. 1:05-cv-2370 (D.D.C. May 18, 2006) (Sullivan); Docket Sheet, Said v. Bush, No. 1:05-cv-2384 (D.D.C. Dec. 13, 2005) (noting a May 26, 2006, minute order by Judge Roberts).

1487. Notice of Transfer, Adem, No. 1:05-cv-723 (D.D.C. Dec. 14, 2007).

1488. Petition, Al-Halmandy v. Bush, No. 1:05-cv-2385 (D.D.C. Dec. 13, 2005) [hereinafter

Al-Halmandy Petition].

On July 29, 2008, Judge Hogan dismissed without prejudice all but seven of the petitioners 

from this case. Order, id. (July 29, 2008).

1489. Al-Halmandy Petition, supra note 1488, Ex. A ¶ 15.

1490. Id.

1491. Petition, Al-Wady v. Bush, No. 1:08-cv-1237 (D.D.C. July 17, 2008).

1492. Id.

1493. Id.; see Al Wady v. Obama, 623 F. Supp. 2d 20, 21 (D.D.C. 2009). 

Filed the same day were five other pro se petitions that appear to be on behalf of detainees on

the same list. Petition, Balzuhair v. Bush, No. 1:08-cv-1238 (D.D.C. July 17, 2008); Petition, Kuman v. Bush, No. 1:08-cv-1235 (D.D.C. July 17, 2008); Petition, Salih v. Bush, No. 1:08-cv-1235 

(D.D.C. July 17, 2008); Petition, Bin Atef v. Bush, No. 1:08-cv-1232 (D.D.C. July 17, 2008); Petition, Hadi v. Bush, No. 1:08-cv-1228 (D.D.C. July 17, 2008).
National Security Case Management Studies (11/14/2011) 181

On August 1, the government notified the court that Warzly and al-Wady are

the same detainee.1494 Judge Urbina, therefore, dismissed the action under the

Warzly name.1495 In December 2008, appointed counsel traveled to Guantánamo

Bay to meet with the detainee, but authorities there said that he did not want to

meet with them.1496 Magistrate Judge Kay granted the attorneys motion that the

government be required to arrange a meeting between the detainee and the attorneys with an interpreter.1497 Judge Walton issued a similar order in a case before

him.1498

[I]t is to the trial court s benefit that a non-governmental attorney provide

confirmation beyond the assurances of guard personnel that a deteinee s decision

to refuse legal assistance and abandon a habeas petition filed on his behalf is vol- untary and fully informed. 1499

On May 14, 2009, appointed counsel met with the detainee.1500 They came to

understand that his correct name was Hamoud Abdullah Hamoud Hasan al- Waeli.1501 According to the attorneys, During that visit, Mr. Al Waeli told us unequivocally that he authorized our continued representation of him in this case

and that he wanted us to continue pursuing his release through habeas corpus relief or through any other means. 1502 But the attorneys

did not feel it was appropriate to ask Mr. Al Waeli to provide written authorization. Mr. Al Waeli has been incarcerated for more than seven years without meeting with anyone

 Filed the same day were seven other pro se petitions that appear to be on behalf of detainees on 

three other lists also signed by al-Hajj on December 13, 2006, and faxed on January 15, 2007, apparently in the same fax. Petition, Al-Sattar v. Bush, No. 1:08-cv-1236 (D.D.C. July 17, 2008) 

[hereinafter Al-Sattar Petition] (p.7 of fax apparently listing two detainees); Petition, Al-Hamiri v. Bush, No. 1:08-cv-1231 (D.D.C. July 17, 2008) (same); Petition, Qattaa v. Bush, No. 1:08-cv- 1233 (D.D.C. July 17, 2008) (p.16 of fax apparently listing 36 detainees); Petition, Mohammed v. Bush, No. 1:08-cv-1230 (D.D.C. July 17, 2008) (same); Petition, Yakubi v. Bush, No. 1:08-cv- 1229 (D.D.C. July 17, 2008) (p.14 of fax apparently listing 34 detainees); Petition, Gul v. Bush, No. 1:08-cv-1224 (D.D.C. July 17, 2008) (same); Petition, Hafizullah v. Bush, No. 1:08-cv-1227 

(D.D.C. July 17, 2008) (same).

A petition filed 10 days earlier shows one of the faxed lists unredacted. Petition, Obaydullah v. 

Bush, No. 1:08-cv-1173 (D.D.C. July 7, 2008) (p.14 of fax listing 34 detainees).

1494. Status Report, Al-Wady, No. 1:08-cv-1237 (D.D.C. Aug. 1, 2008); see Al Wady, 623 F. Supp. 2d at 21 n.2.

1495. Order, Al-Halmandy v. Obama, No. 1:05-cv-2385 (D.D.C. Feb. 23, 2009); see Al Wady, 623 F. Supp. 2d at 21 n.2.

1496. Al Wady, 623 F. Supp. 2d at 22; Status Report at 2 n.1, Al-Wady, No. 1:08-cv-1237 

(D.D.C. Aug. 27, 2010) [hereinafter Aug. 27, 2010 Al-Wady Status Report].

1497. Al Wady, 623 F. Supp. 2d at 22.

1498. Order, Mohammon v. Obama, No. 1:05-cv-2386 (D.D.C. May 12, 2009) (denying reconsideration of order pertaining to Jamil Ahmad Saeed), available at 2009 WL 1312537; Order, id. (May 1, 2009) (granting ore tenus motion for an expeditious, unobstructed, face-to-face visit).

1499. Al Wady, 623 F. Supp. 2d at 22.

1500. Notice of Authorization, Al-Wady, No. 1:08-cv-1237 (D.D.C. May 22, 2009) [hereinafter Al-Wady Notice of Authorization]; Aug. 27, 2010 Al-Wady Status Report., supra note 1496, at

2 n.1.

1501. Al-Wady Notice of Authorization, supra note 1500. 1502. Id.
182 National Security Case Management Studies (11/14/2011)

other than interrogators. Moreover, Mr. Al Waeli described a recent encounter during

which interrogators falsely portrayed themselves as representatives of the Interagency

Review Task Force. Given his experience, we were concerned about creating mistrust by

demanding that he sign a form.1503 On September 9, 2010, Judge Urbina ordered the attorneys to submit a written 

authorization from the detainee for the action.1504 Al-Waeli refused to meet with

his attorneys in August 2010 and January 2011, so the attorneys suggested that

new counsel be appointed.1505 Efforts by new counsel are pending.1506

Al-Hajj also submitted a next-friend petition on behalf of Muieen Adeen Jamal Adeen Abd al-Fusal Abd al-Sattar.1507 Judge Bates granted al-Sattar s attorney

an order that she be permitted a face-to-face meeting with her client: the government may transfer him to the designated meeting place without informing him of

the purpose of the transfer. 1508 As the date of the planned meeting approached, Judge Bates refined his order: respondents shall inform petitioner of the following: You have a meeting with Ms. Cleary and [name of translator]. 1509 The effort to induce al-Sattar to attend the meeting by not telling him it would be a

meeting with his attorney failed.1510 After five refusals by al-Sattar to meet with

his attorney, Judge Bates dismissed the petition.1511

Judge Lamberth dismissed Idris Ahmad Abdu Qadir Idris s petition, originally

filed with al-Hajj as next friend, on October 6, 2009, for failure to file a signed

authorization.1512 By refusing to meet with counsel on at least five occasions, petitioner has unequivocally refused to authorize counsel to go forward with his

case. 1513 Idris was included among the 158 detainees in the Center for Constitutional Rights December 2005 petition, and Idris was among the eight detainees

transferred from that case by Judge Walton to Judge Lamberth on April 21, 2009.1514 Judge Lamberth ruled further, Without some evidence that petitioner

suffers from a mental incapacity, the Court will not compel discovery into petitioner s competence, knowledge, and voluntariness. 1515

 1503. Id.

1504. Docket Sheet, Al-Wady, No. 1:08-cv-1237 (D.D.C. July 17, 2008).

1505. Response, id. (Jan. 11, 2011).

1506. Order, id. (Apr. 19, 2011) (holding in abeyance, pending efforts by new counsel to secure representation authorization, a motion to reconsider dismissal without prejudice); Status Report, id. (Aug. 5, 2011); see Opinion, id. (Feb. 3, 2011), available at 2011 WL 381050 (provision- ally dismissing the action without prejudice).

1507. Al-Sattar Petition, supra note 1493. 1508. Order, Al-Sattar v. Obama, No. 1:08-cv-1236 (D.D.C. Sept. 2, 2009), available at 2009 

WL 2899907. 1509. Order, id. (Sept. 18, 2009), available at 2009 WL 3060319 (quotation alteration in original).

1510. Status Report, id. (Oct. 15, 2009).

1511. Order, id. (Oct. 21, 2009), available at 2009 WL 3416195. 1512. Idris v. Obama, 667 F. Supp. 2d 25 (2009).

1513. Id. at 28 (noting attempted visits by counsel in Guantánamo Bay in February, March, April, May, and June of 2009).

1514. Id. at 27 n.1; Order, Mohammon v. Obama, No. 1:05-cv-2386 (D.D.C. Apr. 21, 2009).

1515. Idris, 667 F. Supp. 2d at 28.
National Security Case Management Studies (11/14/2011) 183

On October 22, 2009, Judge Urbina gave attorneys one last chance to get authorization from their putative client.1516 Judge Urbina observed that it was often

difficult to determine whether a detainee did not want to pursue a petition, was

too sick to meet with counsel to discuss it, or was just still undecided.1517 Rhode 

Island attorneys, in cooperation with the Center for Constitutional Rights, filed a

petition on behalf of Mullah Norullah Noori on October 24, 2008, with al-Hajj 

listed as next friend.1518 Noori, a Taliban official, was captured in Afghanistan in

2001.1519 On March 16, 2009, the attorneys attempted to meet with Noori in

Guantánamo Bay, but he refused to see them.1520 By the time of Judge Urbina s

order, the attorneys had not attempted a second visit, but they had attempted to

send Noori letters and they had dispatched an investigator to Afghanistan to attempt to locate family members.1521 Judge Urbina gave the attorneys 30 days to

secure authorization for the petition.1522 The attorneys met with Noori on November 23, 2009, and Noori declined to authorize the representation,1523

so Judge

Ubrina dismissed the action on February 18, 2010.1524

In 2011, Judges Walton1525 and Collyer1526 granted motions to dismiss without 

prejudice petitions on behalf of detainees whose attorneys were never successful

in meeting them. Suicides Notes

On June 10, 2006, three detainees were found dead in their cells, having apparently bound and hanged themselves with torn bed sheets and clothes.1527 These were

 1516. Noori v. Obama, 664 F. Supp. 2d 116 (D.D.C. 2009).

1517. Interview with Hon. Ricardo M. Urbina, Aug. 15, 2011.

1518. Noori, 664 F. Supp. 2d at 117; Petition, Noori v. Bush, No. 1:08-cv-1828 (D.D.C. Oct. 24, 2008); see Katie Mulvaney, Their Reluctant Defendant Is a Detainee, Providence J. Bull., June 

3, 2009, at 1.

1519. See Mulvaney, supra note 1518. 1520. Noori, 664 F. Supp. 2d at 117 n.3; Petitioner s Response, Noori, No. 1:08-cv-1828 

(D.D.C. Mar. 31, 2009).

1521. Noori, 664 F. Supp. 2d at 118 n.4; see Mulvaney, supra note 1518. 1522. Noori, 664 F. Supp. 2d at 117, 120.

1523. Status Report, Noori, No. 1:08-cv-1828 (D.D.C. Nov. 24, 2009).

1524. Order, id. (Feb. 18, 2010).

1525. Docket Sheet, Al-Jayfi v. Bush, No. 1:05-cv-2104 (D.D.C. Oct. 27, 2005) (noting Sept. 1, 2011, dismissal); see Motion, id. (July 7, 2011).

1526. Docket Sheet, Suleiman v. Obama, No. 1:10-cv-1411 (D.D.C. Aug. 19, 2010) (noting

Sept. 16, 2011, dismissal); see Joint Notice, id. (July 5, 2011) ( Petitioner s counsel was unable to

learn anything regarding Petitioner s wishes with respect to this case during counsel s visit to

Guantanamo Bay on June 22 and 23, 2011, because Petitioner declined to meet with counsel. ). 1527. Al-Zahrani v. Rumsfeld, 684 F. Supp. 2d 103, 105 07 (D.D.C. 2010); Hicks v. Bush, 452 F. Supp. 2d 88, 94 95 (D.D.C. 2006); Boumediene v. Bush, 450 F. Supp. 2d 25, 28 (D.D.C. 2006); see James Risen & Tim Golden, Three Prisoners Commit Suicide at Guantánamo, N.Y. Times, June 11, 2006, at 11; Charlie Savage, As Acts of War or Despair, Suicides Rattle a Prison, N.Y. Times, Apr. 25, 2011, at A13; Josh White, Signs of Detainees Planning Alleged, Wash. Post, July 8, 2006, at A1; but see Scott Horton, The Guantanamo Suicides, Harper s, Mar. 2010, at 27 (reporting on evidence that suggests the current administration failed to investigate

seriously and may even have continued a cover-up of the possible homicides of three prisoners 
184 National Security Case Management Studies (11/14/2011)

the first Guantánamo Bay detainee deaths.1528 The Naval Criminal Investigative

Service discovered in the cells of the deceased detainees, and others on the same

block, notes related to the suicides that were marked as attorney client privileged

material.1529 Although the government maintained that the courts had no jurisdiction over detainees habeas petitions, it asked the court to issue orders authorizing

review of the potentially privileged material.1530

Judge Leon, whose decision that the court did not have jurisdiction over the

habeas petitions was on appeal, decided that he did not have jurisdiction to offer

the government the protection it sought.1531 [T]here is nothing about the circumstances of this situation that would or will prevent this, or another court at a later

time, from ensuring that any information learned by the Government s reviewers

is never used by the Government against any detainee in the future. 1532

Judge Robertson, to whom the matter had been referred by nine other

judges,1533 decided, my idea of prudence is to give the government the guidance

it seeks. If jurisdiction has been improperly asserted, the Court of Appeals will

correct the error. If I do have jurisdiction, both sides will be better off having received judicial guidance sooner rather than later. 1534 Judge Robertson approved a 

plan calling for the use of a Filter Team, walled off from government investigators and prosecutors, that would review the seized materials and set aside anything arguably protected by the attorney client privilege. 1535

 at Guantánamo in 2006 ); Khan, supra note 1169, at 160 63, 230, 234, 297 (reporting that one

deceased detainee s repatriated body was missing organs, including organs in the throat, that

would have provided evidence of the cause of his death).

Judge Huvelle dismissed a tort action by two of the detainees survivors as beyond the court s

jurisdiction. Al-Zahrani, 684 F. Supp. 2d 103 (dismissing an action by survivors of Yasser al- Zahrani and Salah Ali Abdullah Ahmed al-Salami); see Docket Sheet, Al-Zahrani v. Gates, No. 10-5393 (D.C. Cir. Nov. 30, 2010) (pending appeal, noting that oral argument was held on Oct. 6, 2011).

1528. See Savage, supra note 1527. 1529. Boumediene v. Bush, 450 F. Supp. 2d 25, 29 (D.D.C. 2006); see White, supra note 

1527. 1530. Hicks v. Bush, 452 F. Supp. 2d 88, 98 (D.D.C. 2006); Boumediene, 450 F. Supp. 2d at

27 28.

A habeas attorney reported that the military was looking for evidence, in part, that lawyers

had something to do with facilitating the suicides. Falkoff, supra note 1100, at 163. Compare

Cucullu, supra note 1040, at 101 (speculating that the attorneys apparently began to coach detain- ees in hunger strike techniques ) and id. at 180 86, 200 with Patricia M. Wald, Forward to 

Fletcher & Stover, supra note 1022, at xi, xii xiv (2009) ( Hunger strikes and suicide attempts

(labeled manipulative self-injurious behavior ) became the only recourse of detainees until lawyers finally appeared on the scene and courts intervened. ). 1531. Boumediene, 450 F. Supp. 2d at 28, 31 34 (resolving the motion in 13 cases).

1532. Id. at 33.

1533. Hicks, 452 F. Supp. 2d at 94 n.2 (noting referral by Judges Bates, Collyer, Friedman, Kennedy, Kollar-Kotelly, Roberts, Sullivan, Urbina, and Walton).

1534. Id. at 99.

1535. Id. at 94 (resolving the motion in 100 cases).
National Security Case Management Studies (11/14/2011) 185

Classified Detainee Statements and the Privilege Review Team

When Judge Hogan accepted coordination and management of the habeas petitions in 2008, he issued a protective order specifying that the detainees attorneys

must regard any information they received from their clients as classified until a

privilege review team determined otherwise.1536

Privilege team means a team comprised of one or more DoD attorneys and one or

more intelligence or law enforcement personnel who have not taken part in, and, in the

future, will not take part in, any domestic or foreign court, military commission, or combatant status tribunal proceedings involving the detainee. If required, the privilege team

may include interpreters/translators, provided that such personnel meet these same criteria.1537 Attorneys are prohibited from sharing classified information with their clients

(1) unless the information was provided by the detainee or (2) they receive permission from the government.1538 The privilege review team reviews attorney

client communications and work product to determine if they include classified

information.1539

An attorney for Tariq Mahmoud Alsawam, who filed his petition on June 22, 2005,1540 submitted statements made by the detainee included in the government s

classified return to the privilege review team to determine what she could share

with her client on her next visit.1541 The privilege team determined which statements clearly originated from the detainee and gave the attorney permission to

discuss those statements with her client.1542 The government, however, asserted

that according to the protective order, while counsel may discuss with a petitioner-detainee information provided by that petitioner-detainee in communications 

with counsel, counsel may not disclose classified information that originated in

classified Government documents to the petitioner-detainee, even if those classified documents contain petitioner-detainee s own statements. 1543

Judge Hogan ruled against the government and granted the attorney permission to review [the petitioner s statements] with Petitioner, provided that the Privilege Review Team determines that [the statements] contain[] only statements

made by Petitioner to agents of the United States government, and contain[] no

information other than Petitioner s statements, Petitioner s name, and the date the

statements were made. 1544

 1536. In re Guantanamo Bay Detainee Litig., 577 F. Supp. 2d 143, 163 (D.D.C. 2008)

(¶ II.I.29).

1537. Id. at 156 (¶ II.B.6); see Cucullu, supra note 1040, at 198.

1538. In re Guantanamo Bay Detainee Litig., 577 F. Supp. 2d at 150 (¶ I.D.29).

1539. Interview with Dep t of Justice Litig. Sec. Group Staff, July 28, 2011; see Gorman, supra note 1134, at 11; David H. Remes, Negotiating the Protective Order, in The Guantánamo

Lawyers, supra note 1023, at 109, 110 (noting that the privilege review team was bound to keep

the communications confidential).

1540. Petition, Alsawam v. Bush, No. 1:05-cv-1244 (June 22, 2005).

1541. Motion at 2 3, id. (Jan. 6, 2009).

1542. Id. at 3.

1543. Government Opposition at 6, id. (Jan. 13, 2009).

1544. Order, id. (Jan. 15, 2009).
186 National Security Case Management Studies (11/14/2011)

In one of the cases before her, Judge Kessler determined that any classified

statements that the Government relies on and alleges were made by the Petitioner

may be shared with the Petitioner by counsel, provided that the Privilege Review

Team determines that such statements were made by Petitioner to agents of the

United States Government. 1545

Shortly after the detainee had been released to the United Kingdom,1546 the 

Privilege Review Team brought to the attention of the court allegedly unprofessional actions by habeas attorneys for Benjamin Mohammed al-Habashi after the

Manchester Guardian reported that Defense Department officials were withholding from President Obama evidence that Binyam Mohamed apparently a more

common version of al-Habashi s name had been tortured.1547 The Guardian article was apparently based, in part, on a letter the attorneys wrote to the President

concerning the alleged torture, attached to which was an apparent memo concerning the matter from one of the attorneys.1548 The intended recipient of the memo

and all of its contents were redacted.1549 The letter states that it and the attached

memo were also submitted to the review team with a request that the team either

declassify the redacted material or forward the redacted material to the President

under secure conditions.1550 It is not clear whether the review team ever had

access to the information redacted from the memo, but the team objected to the

implication that it was withholding information from the President.1551 The review 

team argued that its purview did not include screening letters to the President or

declassifying information classified by other entities; it was created for the limited purpose of reviewing privileged communications between detainees and

their counsel. 1552 Judge Sullivan addressed the matter in sealed filings.1553

An attorney for Ismail Mohamed, detained at Guantánamo Bay since 2007, identified 21 statements by the detainee that the government was relying on in its

factual return to justify his detention.1554 The attorney sought declassification of

 1545. Order, Ahmed v. Obama, No. 1:05-cv-1678 (D.D.C. Feb. 12, 2009).

1546. Transfer Notice, Al-Habashi v. Obama, No. 1:05-cv-765 (D.D.C. Feb. 23, 2009); see

Lee, supra note 1337 ( He s now free in Britain, where he has mounted a public campaign to have

the British officers he claims were complicit in his torture held accountable. ). 1547. Privilege Review Team s Report, Ben Bacha v. Obama, No. 1:05-cv-2349 (Feb. 26, 2009) (filed initially in the wrong case, where Binyam Mohammed had been identified as a next

friend), also filed in Al-Habashi, No. 1:05-cv-765 (D.D.C. Mar. 5, 2009); see Bin Mohammed v. Obama, 689 F. Supp. 2d 38, 57 61 (D.D.C. 2009) (describing Mohamed s accounts of torture as a

basis for excluding evidence obtained from him against another detainee); see also Omonira- Oyekanmi & Finn, supra note 1037 (reporting on a British damages settlement paid to Mohamed); 

infra, Torture Flights (discussing a civil action by Mohamed against a company that allegedly

provided transportation services for extraordinary rendition).

1548. Privilege Review Team s Report, supra note 1547, Ex. A; see also Stafford Smith, supra

note 1023, at 49 80 (account by Mohamed s attorney of Mohamed s detention experiences). 1549. Privilege Review Team s Report, supra note 1547, Ex. A.

1550. Id.

1551. Privilege Review Team s Report, supra note 1547. 1552. Id. at 3.

1553. Docket Sheet, Al-Habashi v. Bush, No. 1:05-cv-765 (Apr. 15, 2005).

1554. Mohamed v. Gates, 624 F. Supp. 2d 40, 42 (D.D.C. 2009).
National Security Case Management Studies (11/14/2011) 187

the statements so that she could discuss them with her client during a planned

June 12, 2009, meeting, but as the meeting date approached the government had

provided her with only seven.1555 Judge Roberts declined to order that all statements be provided to the detainee for the scheduled meeting, because the attorney

did not follow [procedures] establishing the method to request access for a petitioner to material before a visit from counsel 1556

and because the seven statements already provided ensured that the planned meeting would not be fruitless.1557 Judge Roberts noted, however, that

the respondent may not justify Mohamed s detention with statements of Mohamed s that

he has not had a meaningful opportunity to discuss with his counsel. If the respondent

were to choose not to divulge these statements to Mohamed, the respondent presumably

would have to seek leave to file a new amended factual return that does not rely upon the

undisclosed statements.1558

Judge Roberts also determined that, despite the government s wishes to the

contrary, the detainee would be entitled to have copies of the statements available

to review after the meeting with the attorney.1559 Mohamed was released to Somaliland by December 22, 2009.1560

Coordination with Military Defense Attorneys

Judge Kollar-Kotelly was presented with a request by habeas attorneys to share

what they knew with military defense attorneys for two detainees who had been

referred to military commissions.1561 The government denied the defense attorneys access to classified information that it had shared with habeas attorneys.1562

Judge Kollar-Kotelly determined that she did not have jurisdiction over the matters concerning the defense attorneys unless they made appearances in the habeas

cases, and her response to representations that they were not sure that they were

authorized to do so was that they should try first.1563

Challenge: Classified Evidence

Because of the extensive amount of classified information in these cases, Chief

Judge Lamberth worked with the Justice Department to double the number of

classified information security officers in the Department s Litigation Security

Group.1564 The court decided to apply to these cases the security principles of the

 1555. Id.

1556. Id. at 41.

1557. Id. at 43 44.

1558. Id. at 44.

1559. Id. ( the respondent s assertion that national security interests would not be imperiled if

petitioner and counsel discuss petitioner s statements, yet would somehow be jeopardized if petitioner keeps paper copies of his own statements, is unpersuasive ). 1560. Transfer Notice, Mohamed v. Gates, No. 1:08-cv-1789 (D.D.C. Dec. 22, 2009).

1561. Al Odah v. United States, 608 F. Supp. 2d 46, 48 (D.D.C. 2009).

1562. Id.

1563. Id. at 48 50.

1564. Interview with Hon. Royce C. Lamberth, May 13, 2011; see Reagan, supra note 173, at

17 18 (describing the Litigation Security Group).
188 National Security Case Management Studies (11/14/2011)

Classified Information Procedures Act (CIPA),1565which technically applies only

to criminal cases.1566

The Secure Facility

The Litigation Security Group s classified information security officers set up a

secure facility in Crystal City, which is in Arlington, Virginia, for habeas attorneys to view, discuss, and work on classified information concerning their clients

cases.1567 The suite of rooms includes office space, cubicle space, and safes for

storing classified information.1568 With the exception of a few cases involving

high-value detainees, all of the classified information to which the petitioners

attorneys were given access is classified as secret.1569

Attorneys are not permitted to bring back to their offices notes taken during

their meetings with their clients, because the notes are presumptively classified

until they have been reviewed.1570 Attorneys find reviewed notes waiting for them 

at the secure facility.1571 Documents containing no classified information and unclassified redacted versions of documents can be faxed to the attorneys remote

offices.1572

The secure facility is staffed by cleared contract personnel under the supervision of the Litigation Security Group.1573 Originally, the facility operated according to business hours, but now it operates 24 hours a day.1574 Cleared habeas attorneys who wish to work on classified materials in their cases can show up at

will, and office space is available on a first-come, first-served basis.1575 Computers are available for their use; separate hard drives for each case are stored in the

safes.1576

Some information pertaining to high-value detainees is designated sensitive

compartmented information (SCI).1577 Access to SCI requires a higher security

clearance, and storage requirements for SCI are more stringent. SCI must be

 1565. 18 U.S.C. app. 3.

1566. Interview with Hon. Royce C. Lamberth, May 13, 2011; see Reagan, supra note 173

(discussing CIPA).

1567. Interview with Dep t of Justice Litig. Sec. Group Staff, July 28, 2011; see Gorman, supra note 1134, at 11, 15; Remes, supra note 1539, at 110; Sullivan, supra note 1469, at 43; Wax, supra note 91, at 118.

1568. Interview with Dep t of Justice Litig. Sec. Group Staff, July 28, 2011.

1569. Id.

1570. Id.; see Joshua Colangelo-Bryan, Habeas on the Gate, Part I, in The Guantánamo Lawyers, supra note 1023, at 59, 63; Remes, supra note 1539, at 110.

1571. Interview with Dep t of Justice Litig. Sec. Group Staff, July 28, 2011; see Colangelo- Bryan, supra note 1570, at 63; Matthew O Hara, I Love Cowboys, in The Guantánamo Lawyers, supra note 1023, at 119, 123; Remes, supra note 1539, at 110.

1572. Interview with Dep t of Justice Litig. Sec. Group Staff, July 28, 2011; see Patricia A. Bronte, Classified Art, in The Guantánamo Lawyers, supra note 1023, at 111, 111.

1573. Interview with Dep t of Justice Litig. Sec. Group Staff, July 28, 2011.

1574. Id.

1575. Id.

1576. Id.

1577. Id.; see Reagan, supra note 173, at 3 (describing sensitive compartmented information).
National Security Case Management Studies (11/14/2011) 189

stored in a sensitive compartmented information facility (SCIF).1578 The secure

facility now includes a SCIF.1579

Factual Returns

Following the Supreme Court s decision in Rasul that the courts have jurisdiction

over Guantánamo Bay detainees habeas petitions, the government began to submit factual returns based on CSRT designations of the detainees as enemy combatants.1580 The government designated some return information for the court s eyes

only and some information as for attorney and court eyes only.1581 Habeas attorneys were permitted to see some classified information, but they were not permitted to share it with their clients, and some classified information was shared only

with the court.1582

On November 8, 2004, at which time 11 cases were pending before her, Judge 

Green issued a protective order specifying how habeas attorneys who had obtained security clearances would be given access to classified information.1583 At 

the end of the following January, Judge Green ruled that attorneys with security

clearance must be given access to all classified information in the returns, overruling the government s designation of some of it as for the court s eyes only.1584

The court of appeals, on March 6, 2009, determined that the government

could be required to disclose to habeas counsel only classified information that

 1578. See Reagan, supra note 173, at 19 (describing SCIFs).

1579. Interview with Dep t of Justice Litig. Sec. Group Staff, July 28, 2011.

1580. Returns, Almurbati v. Bush, No. 1:04-cv-1227 (D.D.C. Oct. 13 to Nov. 3, 2004) (six detainees); Returns, Begg v. Bush, No. 1:04-cv-1137 (D.D.C. Oct. 25 to Nov. 3, 2004) (two detainees); Returns, El-Banna v. Bush, No. 1:04-cv-1144 (D.D.C. Oct. 21 to Nov. 3, 2004) (three detainees); Returns, Al-Odah v. Bush, No. 1:02-cv-828 (D.D.C. Sept. 17 to Nov. 3, 2004) (12 detainees); Returns, Boumediene v. Bush, No. 1:04-cv-1166 (D.D.C. Oct. 12 to Nov. 1, 2004) (six detainees); Returns, Abdah v. Bush, No. 1:04-cv-1254 (D.D.C. Oct. 1 to 21, 2004) (13 detainees, an

additional detainee could not be found at Guantánamo Bay by the government); Return, Khalid v. Bush, No. 1:04-cv-1142 (D.D.C. Oct. 18, 2004) (one detainee); Return, Kurnaz v. Bush, No. 1:04- cv-1135 (D.D.C. Oct. 18, 2004) (one detainee); Returns, Anam v. Bush, No. 1:04-cv-1194 

(D.D.C. Sept. 17 to Oct. 14, 2004) (14 detainees, additional detainee omitted from amended petition); Return, Gherebi v. Bush, No. 1:04-cv-1164 (D.D.C. Oct. 6, 2004) (one detainee); Return, Khadr v. Bush, No. 1:04-cv-1136 (D.D.C. Sept. 15, 2004) (one detainee); Return, Habib v. Bush, No. 1:02-cv-1130 (D.D.C. Oct. 6, 2004) (one detainee); Return, Rasul v. Bush, No. 1:02-cv-299 

(D.D.C. Oct. 6, 2004) (return for Hicks only, because Rasul and Iqbal had already been released);

see Status Report, id. (Oct. 22, 2004) [hereinafter Oct. 22, 2004, Status Report]; Order, Khalid, No. 1:04-cv-1142 (D.D.C. Sept. 29, 2004) (dismissing two petitioners who had been sent to

France for prosecution); see also Al Odah v. United States, 559 F.3d 539, 542 (D.C. Cir. 2009).

1581. Al Odah, 559 F.3d at 543; Order, Rasul v. Bush, No. 1:02-cv-299 (D.D.C. Oct. 29, 2004) (ordering the government to present complete returns to the court for examination by the

judge and her cleared staff); Oct. 22, 2004, Status Report, supra note 1580. 1582. Notice, Rasul, No. 1:02-cv-299 (D.D.C. Nov. 5, 2004).

1583. In re Guantanamo Detainee Cases, 344 F. Supp. 2d 174 (D.D.C. 2004).

An additional case had been filed the previous week. Belmar Docket Sheet, supra note 1092. 1584. Order, Rasul, No. 1:02-cv-299 (D.D.C. Jan. 31, 2005) [hereinafter Jan. 31, 2005, Attorney Access Order].
190 National Security Case Management Studies (11/14/2011)

was helpful to the petitioners cases,1585and that the government must be permitted to suggest unclassified substitutions for the classified information.1586 The district judges reviewed the original classified evidence and proposed substitutions

either unclassified or classified at a lower level and decided individually whether the substitutions were adequate and what to do about the evidence if the substitutions were not.1587

Judge Green s January 31, 2005, order also approved of the government s designation of some of the unclassified information in the returns as protected, which meant that it was shared with habeas attorneys under seal.1588 The habeas

attorneys did not object to this designation.1589

In one of Judge Kollar-Kotelly s cases, counsel for the petitioners asked her to

order the government to either declassify the classified portions of the returns or

provide adequate summaries that the attorneys could share with their clients.1590

Because the government failed to respond to the motion, Judge Kollar-Kotelly 

dismissed one of its attorneys.1591 She deferred consideration of whether the government should be able to rely on any information in the returns that the attorneys

could not share with their clients.1592

In 2009, the government sought to designate all of the unclassified information in a large number of factual returns as protected, in part because the versions

of the returns designated unclassified had inadvertently included classified information in some cases.1593 Judge Hogan determined that this would violate the

public s First Amendment and common-law right of access to the court s files, and he gave the government four weeks to designate with precision what information in the returns had to be protected.1594

Judge Friedman observed that returns and traverses were only the beginning 

of documentary evidence relating to the merits; they were typically supplemented

with substantial subsequent filings.1595

 1585. Al Odah, 559 F.3d at 544.

1586. Id. at 547.

1587. Interview with Hon. Joyce Hens Green, Sept. 21, 2011; Interview with Hon. Rosemary

M. Collyer, Sept. 20, 2011.

1588. Jan. 31, 2005, Attorney Access Order, supra note 1584. 1589. Id. at 2.

1590. Al Odah v. United States, 608 F. Supp. 2d 42, 43 (D.D.C. 2009).

1591. Id.; Order at 7 8, Al-Odah v. United States, No. 1:02-cv-828 (D.D.C. Feb. 13, 2009), available at 2009 WL 382098 ( The Court has lost confidence in Respondents current counsel, and the Court does not view his representations as credible. ). The government s motion to reconsider the attorney s dismissal was denied. Al Odah v. United 

States, 606 F. Supp. 2d 141 (D.D.C. 2009) ( Respondents Motion is based on a shockingly revisionist version of the events that transpired . . . . ). 1592. Al Odah, 608 F. Supp. 2d at 44 46.

1593. In re Guantanamo Bay Detainee Litig., 630 F. Supp. 2d 1, 3 4 (D.D.C. 2009); In re

Guantanamo Bay Detainee Litig., 624 F. Supp. 2d 27, 29 30 (D.D.C. 2009).

1594. In re Guantanamo Bay Detainee Litig., 630 F. Supp. 2d at 7 8; In re Guantanamo Bay

Detainee Litig., 624 F. Supp. 2d at 34.

1595. Interview with Hon. Paul L. Friedman, Oct. 12, 2011.
National Security Case Management Studies (11/14/2011) 191

For the habeas petition by Wali Mohammed Morafa, the government submitted to Judge Collyer ex parte evidence relating to recently identified documents.1596 The government provided Morafa s attorneys with what the government characterized as robust substitutes for substantial portions of the ex parte

information at issue and argued that those substitutes provide counsel with sufficient information to ensure Petitioner receives meaningful habeas review. 1597

Judge Collyer determined that the ex parte evidence was inculpatory.1598 She ordered the government to establish the adequacy of its substitutions.1599

CSRT Appeals

In 2006, detainees began to file appeals of their CSRT enemy combatant designations. Although they were not permitted access to counsel in the CSRT proceedings, and they were not granted access to classified evidence against them, their

appellate attorneys were given access to complete CSRT records, including the

classified evidence.1600

Internment Serial Numbers

The government assigned to each detainee an internment serial number (ISN).1601

For example, David Hicks was 002, Huzaifa Parhat was 320, and Omar Khadr is

766.1602 Originally, ISNs were classified as secret.1603 After a time, they became

regarded as protected, which meant that they were afforded confidentiality approximately equivalent to social security numbers, but they are no longer classified or protected.1604

In 2005, while the ISNs were still classified, a Navy lawyer sent the Center for 

Constitutional Rights a list of detainees names and ISNs in a Valentine s Day

card addressed to an attorney who had been seeking a list of names.1605 Realizing 

 1596. Order at 1, Mousovi v. Obama, No. 1:05-cv-1124 (D.D.C. Sept. 28, 2011) [hereinafter

Morafa Order]; Government Response at 1 3, id. (Jan. 21, 2011) [hereinafter Government Morafa

Response]; Notice, id. (Oct. 22, 2010).

1597. Government Morafa Response, supra note 1596, at 2; see Morafa Order, supra note 

1596, at 6.

1598. Morafa Order, supra note 1596, at 6.

1599. Id. at 7 8.

1600. Parhat v. Gates, 532 F.3d 834, 840 (D.C. Cir. 2008).

1601. Abdah v. Obama, 709 F. Supp. 2d 25, 27 28 n.2 (D.D.C. 2010).

1602. E.g., Ex. A, Government Motion to Dismiss, Rasul v. Bush, No. 1:02-cv-299 (D.D.C. Apr. 19, 2007).

John Walker Lindh was ISN 001. See Cucullu, supra note 1040, at 67; David Leigh, What Are

These Files?, London Guardian, Apr. 25, 2011, at 2.

1603. United States v. Diaz, 69 M.J. 127, 133 (C.A.A.F. 2010); Interview with Dep t of Justice

Litig. Sec. Group Staff, July 28, 2011.

1604. Interview with Dep t of Justice Litig. Sec. Group Staff, July 28, 2011; see Associated 

Press v. Dep t of Defense, 462 F. Supp. 2d 573, 574 (S.D.N.Y. 2006) (noting the release of ISNs); 

Associated Press v. Dep t of Defense, 410 F. Supp. 2d 147, 149 (S.D.N.Y. 2006) (noting, in an

action under the Freedom of Information Act, that ISNs were redacted to protect detainees privacy rather than to protect national security).

1605. Diaz, 69 M.J. at 130; see Tim Golden, Naming Names at Gitmo, N.Y. Times, Oct. 21, 2007, at 678; Wax, supra note 91, at 169.
192 National Security Case Management Studies (11/14/2011)

that she should not have received this information that way, the attorney contacted 

the district court, and then classified information security officers retrieved the

list.1606 The leaker was convicted of removing classified material, communicating

classified information, violating a lawful general order, and conduct unbecoming

an officer and a gentleman.1607 He was sentenced to six months in prison and dismissed from the Navy.1608

Petitioner Statements

Judge Hogan ruled that the government could not easily withhold from the detain- ee petitioners themselves records of their own statements even if the records were

classified.1609 Judge Hogan observed that it would be difficult for the government

to deny the materiality of statements that it has chosen to rely upon to justify a

petitioner s detention. 1610 Also, the security risk from providing petitioners

access to their own statements is not comparable to the risk from disclosing other

classified information. 1611 At a minimum, the government cannot rely on a petitioner s statement if it does not timely provide the petitioner with a sufficient alternative to that statement. 1612

WikiLeaks

On April 24, 2011, news media posted on their websites information derived from 

several hundred classified files on Guantánamo Bay detainees.1613 Newspapers 

and National Public Radio s news programs ran stories on the documents, beginning the following morning.1614 The documents were leaked to WikiLeaks in

2010, and another source shared them with some news media, who in turn shared

them with other news media.1615

The documents were mostly risk-assessment reports on detainees written from 

February 2002 through January 2009, and the classified information was classified as secret.1616 The New York Times and National Public Radio collaborated on

an Internet database that includes leaked information about Guantánamo Bay de-

 1606. Diaz, 69 M.J. at 131; see Golden, supra note 1605. 1607. Diaz, 69 M.J. at 129.

1608. Id.; see Golden, supra note 1605. 1609. In re Guantanamo Bay Detainee Litig., 634 F. Supp. 2d 17 (D.D.C. 2009).

1610. Id. at 25.

1611. Id. at 23.

1612. Id. at 25.

1613. See Motion at 2, Alhag v. Obama, No. 1:05-cv-2199 (D.D.C. May 3, 2011) [hereinafter

Alhag WikiLeaks Motion]; Motion at 1 2 & n.2, Paracha v. Obama, No. 1:04-cv-2022 (D.D.C. Apr. 27, 2011) [hereinafter Paracha WikiLeaks Motion].

1614. E.g., Peter Finn, New Revelations on al-Qaeda s 9/11 Movements, Wash. Post, Apr. 25, 2011, at A1; High-Risk Detainees Released from Guantanamo, Morning Edition (NPR radio

broadcast Apr. 25, 2011) [hereinafter High-Risk Detainees]; Military Documents Detail Life at

Guantanamo, Morning Edition (NPR radio broadcast Apr. 25, 2011) [hereinafter Military Documents]; Savage et al., supra note 651. 1615. See, e.g., Military Documents, supra note 1614 ( The Guantanamo files were leaked last

year to the website WikiLeaks. An anonymous source obtained the documents from WikiLeaks

and then passed them to the New York Times, and the newspaper shared them with us. ). 1616. See High-Risk Detainees, supra note 1614; Savage et al., supra note 651.
National Security Case Management Studies (11/14/2011) 193

tainees.1617 Classified information security officers promptly notified the detain- ees attorneys that because a leak of classified information does not render the

information declassified the attorneys should continue to handle classified information on their clients in appropriate ways.1618

Saifullah Paracha s attorney filed an emergency motion with Judge Friedman

seeking assurance that he could view Internet information on his client without

repercussion, such as loss of his security clearance.1619 Judge Friedman denied the 

motion s emergency status.1620 Four days later, Abd al-Hakim Ghalib Ahmad Alhag s attorney filed a motion similar to the Paracha motion with Judge Kennedy, noting that a merits hearing in the case was scheduled for less than three weeks

later.1621 Judge Kennedy canceled the merits hearing while he considered the motion.1622

On June 10, classified information security officers informed counsel that they 

could view on home and office computers classified information about their

clients posted on WikiLeaks, but they could not download, save, print, disseminate, or otherwise reproduce, maintain, or transport potentially classified information derived from the Internet.1623 They could, however, prepare unclassified discovery requests for purported government documents referred to by WikiLeaks so 

long as the requests identified the documents sought with particularity without

revealing their contents.1624 The government provided counsel with purported

detainee assessments posted on the WikiLeaks website at the Crystal City facility.1625

The restrictions on access to WikiLeaks information did not apply to secondary reporting such as news articles, blogs, transcripts of broadcasts, and the like. You may download, print, copy, or otherwise access, maintain, disseminate, and

transport secondary reporting that discusses or refers to potentially classified information. 1626 You may not make any public or private statements revealing

personal knowledge from non-public sources regarding the classified status of the

information or disclosing that you had personal access to classified information

 1617. See High-Risk Detainees, supra note 1614; A Note to Readers, N.Y. Times, Apr. 25, 2011, at A1.

1618. See Alhag WikiLeaks Motion, supra note 1613, at 2 3; Paracha WikiLeaks Motion, supra note 1613, at 3; Scott Shane, Detainees Lawyers Can t Click on Leaked Documents, N.Y. Times, Apr. 27, 2011, at A1.

1619. Paracha WikiLeaks Motion, supra note 1613; see Scott Shane, Guantánamo Detainee s

Lawyer Seeks a Voice on WikiLeaks Documents, N.Y. Times, Apr. 28, 2011, at A16.

1620. Opinion, Paracha v. Obama, No. 1:04-cv-2022 (D.D.C. Apr. 29, 2011), available at

2011 WL 1639259. 1621. Alhag WikiLeaks Motion, supra note 1613. 1622. Docket Sheet, Alhag v. Obama, No. 1:05-cv-2199 (D.D.C. Nov. 10, 2005).

1623. Government Brief, Ex. A, Paracha, No. 1:04-cv-2022 (D.D.C. June 15, 2011) [hereinafter WikiLeaks Guidelines]; Government Motion at 1 2 & Ex. A, id. (June 10, 2011); see Charlie 

Savage, Lawyers for Detainees Allowed to See Leaked Files, N.Y. Times, June 11, 2011, at A8.

1624. WikiLeaks Guidelines, supra note 1623. 1625. Id.; Interview with Dep t of Justice Litig. Sec. Group Staff, Sept. 26, 2011; see Savage, 

supra note 1623. 1626. WikiLeaks Guidelines, supra note 1623.
194 National Security Case Management Studies (11/14/2011)

confirming, contradicting, or otherwise relating to the information already in the

public domain. 1627 Although the U.S. Government has confirmed that purported

detainee assessments were leaked to WikiLeaks, it has neither confirmed nor denied that individual reports are official government documents. 1628

Reviewing Classified Materials

All judges reviewing Guantánamo Bay habeas cases have special safes to store

classified materials.1629 Although cleared petitioners attorneys were granted

access only to secret information, the government presented to judges additional

top secret information.1630 In general, judges were permitted to keep secret information in their chambers safes, but some top secret information was delivered to

them for private review as needed.1631

Many judges are concerned about surrendering control of classified materials

they review. Judge Hogan, for example, dates and initials all classified documents 

that he reviews.1632

Challenge: Protected Information

Although the Executive Branch determines what information is classified, the

courts determine what part of a judicial record is otherwise protected or sealed.1633

Judge Hogan s 2008 protective order provided for the government s designation of unclassified information in returns and other court documents as protected:

Should government counsel in these consolidated cases wish to have the Court deem

any document or information protected, government counsel shall disclose the information to qualified counsel for petitioners i.e., counsel who have satisfied the necessary

prerequisites of this Protective Order for the viewing of protected information and attempt to reach an agreement about the designation of the information prior to filing a motion with the Court. Petitioners counsel shall treat such disclosed information as protected unless and until the Court rules that the information should not be designated as

protected.1634 On June 30, 2009, Judge Huvelle overruled the government s designation of

some information as protected.1635 Judge Huvelle ruled by sealed order after a

closed proceeding.1636 In a heavily redacted published opinion, the court of ap-

 1627. Id.

1628. Id.

1629. Interview with Hon. Paul L. Friedman, Oct. 12, 2011; Interview with Hon. Thomas F. Hogan, Jan. 12, 2010.

1630. Interview with Hon. Rosemary M. Collyer, Sept. 20, 2011.

1631. Interview with Hon. Paul L. Friedman, Oct. 12, 2011; Interview with Hon. Rosemary M. 

Collyer, Sept. 20, 2011.

1632. Interview with Hon. Thomas F. Hogan, Jan. 12, 2010.

1633. Bismullah v. Gates, 501 F.3d 178, 188 (D.C. Cir. 2007); see Robert Timothy Reagan, Sealing Court Records and Proceedings: A Pocket Guide (2010).

1634. In re Guantanamo Bay Detainee Litig., 577 F. Supp. 2d 143, 151 (D.D.C. 2008) (¶ 34).

1635. Ameziane v. Obama, 620 F.3d 1, 3 (D.C. Cir. 2010); Docket Sheet, Ameziane v. Bush, No. 1:05-cv-392 (D.D.C. Feb. 24, 2005) [hereinafter Ameziane Docket Sheet].

1636. Ameziane Docket Sheet, supra note 1635.
National Security Case Management Studies (11/14/2011) 195

peals reversed,1637 but it is very difficult to determine from the public record why

the government should or should not have been entitled to designate the information as protected. The Supreme Court denied a sealed petition for certiorari.1638

On September 4, 2009, Judge Huvelle again overruled the government s designation of some information as protected, and her ruling did not receive appellate review.1639 Respecting the government s statement of material facts in Jawad s case, the government sought to designate as protected the dates of interrogations so that a reader could not induce the identities of interrogators. Judge Huvelle, noting that the government did not regard this information as classified, determined that dates for Jawad s interrogations were already public so those dates

could not be regarded as protected and only dates of the month, but not month and 

year, needed to be protected for interrogations of others.1640 The public has a legitimate interest in gaining access to the month and year of the reports containing

inculpatory statements to determine whether those statements are reliable (i.e., whether the interrogation occurred a substantial time after the event in question). 1641

Between the government s sealed motion to designate the dates protected and

Jawad s sealed opposition to that motion, Judge Huvelle issued an order suppressing Jawad s out-of-court statements as the products of torture.1642 Before she issued her ruling on whether the dates could be protected, the government decided

to no longer regard Jawad detainable,1643 Judge Huvelle granted the writ,1644 and 

Jawad was released.1645 On December 30, 2010, Judge Huvelle approved redactions in the public filing of Jawad s return,1646

which was filed on March 15, 2011.1647

On May 12, 2011, Judge Hogan further clarified under what circumstances the 

government could designate unclassified information as protected from public

disclosure:

Pursuant to [the] first step, the government must identify the categories of information it

seeks to protect and provide a valid basis for withholding information in those categories. 

To satisfy this step, the government must proffer a specific, tailored rationale for protecting a general category of information. To be clear, the rationale must be tailored to the

category for which protection is sought but need not necessarily be tailored to a particular 

case. It will not suffice for the government to identify broad categories for which the ra-

 1637. Ameziane, 620 F.3d 1; see Appeals Court Upholds Secrecy in Algerian s Case, Miami

Herald, Oct. 8, 2010; Guantanamo Detainee Loses Bid to Have US Release Information to the

Public, Boston Globe, Oct. 9, 2010, at 2 (reporting that the detainee had been waterboarded).

1638. Ameziane v. Obama, ___ U.S. ___, 131 S. Ct. 1673 (2011).

1639. Bacha v. Obama, 653 F. Supp. 2d 32 (D.D.C. 2009).

1640. Id. at 34.

1641. Id. at 35.

1642. Jawad Suppression Order, supra note 1339; Docket Sheet, Al-Halmandy v. Obama, No. 1:05-cv-2385 (D.D.C. July 17, 2009).

1643. Jawad Nondetainability Notice, supra note 1341. 1644. Jawad Writ, supra note 1346. 1645. Detainee Released, supra note 1343. 1646. Order, Al-Halmandy, No. 1:05-cv-2385 (D.D.C. Dec. 30, 2010).

1647. Order, id. (Mar. 15, 2011).
196 National Security Case Management Studies (11/14/2011)

tionale for protection is brief, spare and generic. On the other hand, the government s rationale need not be so specific that it precludes any generalized categorization. Furthermore, the narrower the category for which the government seeks protection, the more

likely the government s rationale will be sufficiently tailored. With respect to [the] second step, the Court must determine whether the specific information the government has designated for protection properly falls within the category 

identified in the first step. . . . [D]etermining whether the information falls within the protected category requires evaluating whether the rationale for protection asserted in the

first step is implicated by the specific information the government has designated for protection in the second step. . . . Thus, determining whether designated information falls

within a protected category requires the Court to evaluate whether the rationale for the

category applies to the designated information.

. . . [I]f the government satisfies [this] two-step test . . . , the district court is required

to defer to the government s assessment of the harm to foreign relations and national security that would result from disclosure of the information the government seeks to protect.1648 Challenge: Classified Arguments

Judge Green s November 2004 protective order specified that documents that

might contain classified information were to be filed with the classified information security officers, at which time they would be deemed filed with the court;

the security officers would arrange for a classification review, and redacted versions of the documents, if redaction was necessary, would be filed on the public

record.1649 A protective order issued by Judge Hogan in 2008, two months after he 

accepted pretrial consolidation of the habeas petitions, provided for similar procedures.1650

Sometimes inferences about classified filings can be drawn from unclassified

filings. To ask Judge Kennedy to accept new evidence following the judge s grant

of habeas corpus relief to the Russian detainee Mingazov, the government filed a

classified motion.1651 Mingazov s attorneys filed a classified opposition.1652 The 

government filed a classified motion with the court of appeals seeking abeyance

pending resolution of the motion before Judge Kennedy.1653 Mingazov s attorneys

filed an unclassified and unsuccessful opposition, which disclosed that the 

motion before Judge Kennedy was a request to present additional evidence, without disclosing what the evidence was.1654 The government s reply brief on the abeyance motion was also unclassified.1655

 1648. In re Guantanamo Bay Detainee Litig., 787 F. Supp. 2d 5, 13 14 (D.D.C. 2011) (citations and quotation marks omitted).

1649. In re Guantanamo Detainee Cases, 344 F. Supp. 2d 174, 182 (D.D.C. 2004); see Gorman, supra note 1134, at 14.

1650. In re Guantanamo Bay Detainee Litig., 577 F. Supp. 2d 143 (D.D.C. 2008).

1651. Notice of Filing, Al-Harbi v. Obama, No. 1:05-cv-2479 (D.D.C. Dec. 15, 2010).

1652. Notice of Filing, id. (Jan. 31, 2011).

1653. Docket Sheet, Mingazov v. Obama, No. 10-5217 (D.C. Cir. June 28, 2010).

1654. D.C. Cir. Mingazov Opposition Brief, supra note 1434; see Mingazov Abeyance Order, supra note 1435 (granting abeyance).

1655. Reply Brief, Mingazov, No. 10-5217 (D.C. Cir. Jan. 3, 2011).
National Security Case Management Studies (11/14/2011) 197

Petitioner Hajji Nassim, who was considered a high-value detainee, a category 

used for central figures in terrorism planning, apparently killed himself on May

18, 2011.1656 On May 23, the government filed in his case a notice of his death1657

and filed in nine other high-value detainee cases notices of top secret ex parte filings.1658 Judges Kollar-Kotelly,1659 Walton,1660 Bates,1661 Friedman,1662

and Roberts1663

referred the matter to Judge Sullivan, to whom two of the cases had been

assigned.1664 The briefing on this matter was classified, but the filings of papers

were noted on the public record.1665 The matter apparently remains pending.

To help judges with classified materials, chambers staff persons must have security clearances. Some judges permit some staff members to forgo the clearance

process and the special responsibility that comes with handling classified material. Also, not all of the court s court reporters have agreed to seek security clearances.

When classified materials are not in use, they must be stored in combination

safes, and the combinations must be memorized.

 1656. See Afghan Detainee Is Found Dead at Guantánamo, N.Y. Times, May 19, 2011, at A19 

[hereinafter Found Dead]; see also Savage, supra note 1400 (defining high-value detainee as a

senior terrorism suspect who was held for a time in secret C.I.A. prisons and subjected to what the

Bush administration called enhanced interrogation techniques ). 1657. Nassim Death Notice, supra note 1172; see Order, Nassim v. Obama, No. 1:09-cv-1332 

(D.D.C. July 12, 2011) (dismissing Nassim s habeas petition as moot). 1658. Notice of Filing, Bin Lep v. Obama, No. 1:09-cv-31 (D.D.C. Apr. 8, 2011); Notice of

Filing, Al-Baluchi v. Obama, No. 1:08-cv-2083 (D.D.C. Mar. 24, 2011); Notice of Filing, Al- Nashiri v. Obama, No. 1:08-cv-1207 (D.D.C. Mar. 24, 2011); Notice of Filing, Bin al-Shibh v. Obama, No. 1:06-cv-1725 (D.D.C. Mar. 24, 2011); Notice of Filing, Abdulrazzaq v. Obama, No. 1:09-cv-1462 (D.D.C. Mar. 23, 2011); Notice of Filing, Rahim v. Obama, No. 1:09-cv-1385 

(D.D.C. Mar. 23, 2011); Notice of Filing, Mohammad v. Obama, No. 1:09-cv-873 (D.D.C. Mar. 23, 2011); Notice of Filing, Husayn v. Obama, No. 1:08-cv-1360 (D.D.C. Mar. 23, 2011); Notice

of Filing, Khan v. Obama, No. 1:06-cv-1690 (D.D.C. Mar. 23, 2011).

1659. Order, Mohammad, No. 1:09-cv-873 (D.D.C. Apr. 15, 2011).

1660. Order, Khan, No. 1:06-cv-1690 (D.D.C. Apr. 15, 2011).

1661. Order, Bin Lep, No. 1:09-cv-31 (D.D.C. Apr. 18, 2011).

1662. Order, Rahim, No. 1:09-cv-1385 (D.D.C. Apr. 18, 2011); Order, Al-Baluchi, No. 1:08- cv-2083 (D.D.C. Apr. 18, 2011).

1663. Order, Husayn, No. 1:08-cv-1360 (D.D.C. Apr. 18, 2011); Order, Al-Nashiri, No. 1:08- cv-1207 (D.D.C. Apr. 18, 2011).

1664. Docket Sheet, Abdulrazzaq v. Obama, No. 1:09-cv-1462 (D.D.C. Aug. 3, 2009) [herein- after Abdulrazzaq Docket Sheet]; Docket Sheet, Bin al-Shibh v. Obama, No. 1:06-cv-1725 

(D.D.C. Aug. 30, 2005) [hereinafter Bin al-Shibh Docket Sheet].

1665. Abdulrazzaq Docket Sheet, supra note 1664; Docket Sheet, Rahim, No. 1:09-cv-1385 

(D.D.C. July 27, 2009); Docket Sheet, Mohammad v. Obama, No. 1:09-cv-873 (D.D.C. May 11, 2009); Docket Sheet, Bin Lep, No. 1:09-cv-31 (D.D.C. Jan. 8, 2009); Docket Sheet, Al-Baluchi, No. 1:08-cv-2083 (D.D.C. Dec. 2, 2008); Husayn Docket Sheet, supra note 1256; Docket Sheet, Al-Nashiri, No. 1:08-cv-1207 (D.D.C. July 15, 2008); Bin al-Shibh Docket Sheet, supra note 

1664; Docket Sheet, Khan, No. 1:06-cv-1690 (D.D.C. Sept. 29, 2006).
198 National Security Case Management Studies (11/14/2011)

Challenge: Closed Proceedings and Remote Participation

A very important part of managing a Guantánamo Bay habeas case is determining 

when to close proceedings for purposes of national security.1666

Judges will often try to conduct as much of the proceeding as possible in open 

session. An important challenge during an open session is keeping track of what

information is classified and therefore not something to be discussed openly. Especially difficult to remember as classified are details, such as the date the detain- ee was arrested, that have a classified status not intuitively obvious.1667 Complicating the burden for judges was the fact that sometimes their unredacted copies

of documents, such as factual returns, did not show what parts of the documents

were classified.1668

Transitioning from an open session to a closed session always took several

minutes, in part because the reporter had to set up special equipment to transcribe

classified proceedings.1669

All persons present at classified proceedings must have security clearances. If

a judge s courtroom clerk is not cleared, then a cleared law clerk can act as courtroom clerk.1670 Classified materials used by habeas attorneys in court must be

transported by cleared couriers from the secure facility in Crystal City to the

courthouse.1671

In cooperation with Attorney General Mukasey, the court established a direct

satellite connection with Guantánamo Bay.1672 The court identified one courtroom 

to fit with a secure connection to the satellite for Guantánamo Bay hearings.1673

Obtaining detainees participation from Guantánamo Bay presented the court

with one of its most substantial logistical challenges.1674 Timing of the proceeding 

had to be coordinated with, among other things, the timing of flights to Guantánamo Bay.1675

An effective proceeding required one of the detainee s attorneys to be in Cuba, with an interpreter, and another of the detainee s attorneys to be in court.1676

Often, the detainee s attorneys and the government also had interpreters in

 1666. Interview with Hon. John D. Bates, Oct. 15, 2009.

1667. Interview with Hon. Ellen Segal Huvelle, June 13, 2011.

1668. Transcript at 3 4, Al-Halmandy v. Bush, No. 1:05-cv-2385 (D.D.C. June 19, 2009, filed

Aug. 27, 2009); Interview with Hon. Ellen Segal Huvelle, June 13, 2011.

1669. Interview with Hon. Gladys Kessler, May 31, 2011.

1670. Interview with Hon. Reggie B. Walton, May 23, 2011.

1671. Interview with Dep t of Justice Litig. Sec. Group Staff, July 28, 2011.

1672. Interview with Hon. Royce C. Lamberth, May 13, 2011. 

Detainees were not brought to court for proceedings so that they would not be able to pursue

asylum rights. Id. Proceedings were not held at Guantánamo Bay, because the judges did not believe that they could hear cases outside of the United States. Id.

1673. Interview with Hon. Rosemary M. Collyer, Sept. 20, 2011; Interview with Hon. Reggie

B. Walton, May 23, 2011; Interview with Dep t of Justice Litig. Sec. Group Staff, July 28, 2011.

1674. Interview with Hon. Gladys Kessler, May 31, 2011.

1675. Id.

1676. Id.
National Security Case Management Studies (11/14/2011) 199

court.1677 Attempting a proceeding with only an interpreter in court worked very

badly, because it was difficult for participants to stop talking while the interpreter

told the detainee what was said.1678

If the detainee did not testify, then classified information would not be transmitted between the courtroom and Guantánamo Bay, because the detainee was not 

permitted access to classified information.1679 If, however, a detainee testified, either as the petitioner or as a witness, then the detainee s testimony was presumptively classified.1680 The testimony was transmitted by secure audiovisual

link, which required FBI security specialists at both locations.1681

The first few habeas hearings set the mold for how future hearings were conducted. By the time of the hearing, the government had identified a specific number of issues, and it needed to prevail on any one issue to justify detention, so the

structure of the hearing usually tracked the enumerated case-specific issues.1682

On November 6, 2008, Judge Leon began the first evidentiary hearing on the

government s evidence supporting a Guantánamo Bay detention.1683 Attorneys for 

both sides made opening statements in open court.1684 The detainees were to listen 

to proceedings by a live audio feed, but because of technical difficulties they were 

only able to listen to an audio recording of the proceeding the next day.1685 They 

received a written Arabic translation soon afterward.1686

On the afternoon of the same day, Judge Leon continued the proceeding in

closed session because classified evidence would be presented and discussed.1687

During the next few days of the proceeding, two detainees testified by audiovisual

 1677. Interview with Hon. Rosemary M. Collyer, Sept. 20, 2011.

If the proceeding included more than one interpreter, occasionally an interpreter would object

to another interpreter s translation. Interview with Hon. Rosemary M. Collyer, Sept. 20, 2011

(noting that, in her experience, the interpreters were always able to finally agree on a translation).

1678. Interview with Dep t of Justice Litig. Sec. Group Staff, July 28, 2011.

1679. Id.

1680. Interview with Hon. Rosemary M. Collyer, Sept. 20, 2011; Interview with Dep t of Justice Litig. Sec. Group Staff, July 28, 2011; see Winke, supra note 1187, at 356.

1681. Interview with Dep t of Justice Litig. Sec. Group Staff, July 28, 2011.

The video link between the courthouse and Guantánamo Bay was established pursuant to a letter request by Chief Judge Lamberth on September 18, 2008, to the FBI s Technical Response

Unit. Id., Sept. 26, 2011.

Judge Collyer observed that because the video presentation of the detainee s testimony did not

include a close-up, she could not observe the detainee s facial demeanor nearly as well as she

could that of a witness testifying in the courtroom. Interview with Hon. Rosemary M. Collyer, Sept. 20, 2011.

1682. Interview with Hon. Paul L. Friedman, Oct. 12, 2011.

1683. Boumediene v. Bush, 579 F. Supp. 2d 191, 193 (D.D.C. 2008); see William Glaberson, Judge Opens First Habeas Corpus Hearing on Guantánamo Detainees, N.Y. Times, Nov. 7, 2008, at A21; Glaberson & Becker, supra note 1186. 1684. Boumediene, 579 F. Supp. 2d at 193; see Glaberson, supra note 1683. 1685. Boumediene, 579 F. Supp. 2d at 193; see Glaberson, supra note 1683; Winke, supra note 

1187, at 353 55 (describing the petitioners reactions to the recording). 1686. Boumediene, 579 F. Supp. 2d at 193.

1687. Id.
200 National Security Case Management Studies (11/14/2011)

feed from Guantánamo Bay.1688 Their attorneys provided them with shirts and

ties; one was able to testify in English.1689 Closing arguments on November 14

were also held in closed session, from which the detainees were excluded, because much of the arguments was classified.1690

The 2008 and 2009 hearings for al-Alwi, Sliti, al-Bihani, and Hammamy, whose habeas petitions were denied, and for el-Gharani and al-Janko, whose petitions were granted, were conducted similarly.1691 Judge Leon began with public

opening statements.1692 The hearings continued in closed session because classified information would be discussed.1693 Sliti elected not to participate,1694 but al- Alwi, el-Gharani, al-Bihani, Hammamy, and al-Janko listened to live translations

of the public opening statements by telephone from Guantánamo Bay.1695

Fawzi Khalid Abdullah Fahad al-Odah,1696 al-Rabiah,1697and al-Kandari1698

also listened to the public opening statements in their habeas merits proceedings.

At a March 31, 2009, habeas hearing, Judge Huvelle began with a closed session on classified and other evidence and then held a closed session that did not

include classified information but was sealed at the request of the petitioner, who

expressed fear of reprisals for his cooperation with the government.1699 He listened to the unclassified session by telephone from Guantánamo Bay.1700

On June 18, 2009, Judge Kessler ruled that al-Adahi s testimony from Guantánamo Bay at his merits hearing would be in open court.1701 Petitioner will not

be giving any classified testimony on direct or re-direct because he has access to

none, and the Government will not be able to cross-examine him on any classified 

 1688. Id.; see Winke, supra note 1187, at 356 57.

1689. See Winke, supra note 1187, at 355.

1690. Boumediene, 579 F. Supp. 2d at 193.

1691. Al-Ginco v. Obama, 626 F. Supp. 2d 123, 125 (D.D.C. 2009) (hearing May 28 29, 

2009); Hammamy v. Obama, 604 F. Supp. 2d 240, 241 (D.D.C. 2009) (hearing Mar. 12, 2009);

Al-Bihani v. Obama, 594 F. Supp. 2d 35, 36 (D.D.C. 2009) (hearing Jan. 15 16, 2009); El Gharani v. Bush, 593 F. Supp. 2d 144, 145 (D.D.C. 2009) (hearing Dec. 17 18, 2008); Al-Alwi v. Bush, 593 F. Supp. 2d 24, 25 (D.D.C. 2008) (Dec. 16 17, 2008); Sliti v. Bush, 592 F. Supp. 2d 46, 47

(D.D.C. 2008) (hearing Dec. 18, 2008).

1692. Al-Ginco, 626 F. Supp. 2d at 125; Hammamy, 604 F. Supp. 2d at 241; Al-Bihani, 594 F. Supp. 2d at 39; El Gharani, 593 F. Supp. 2d at 145; Al-Alwi, 593 F. Supp. 2d at 25; Sliti, 592 F. Supp. 2d at 47.

1693. Al-Ginco, 626 F. Supp. 2d at 125; Hammamy, 604 F. Supp. 2d at 241; Al-Bihani, 594 F. Supp. 2d at 39; El Gharani, 593 F. Supp. 2d at 145; Al-Alwi, 593 F. Supp. 2d at 25; Sliti, 592 F. Supp. 2d at 47; see Glaberson, supra note 1683. 1694. Sliti, 592 F. Supp. 2d at 47.

1695. Al-Ginco, 626 F. Supp. 2d at 125; Hammamy, 604 F. Supp. 2d at 241; Al-Bihani, 594 F. Supp. 2d at 39; El Gharani, 593 F. Supp. 2d at 145; Al-Alwi, 593 F. Supp. 2d at 25.

1696. Al Odah v. United States, 648 F. Supp. 2d 1, 3 (D.D.C. 2009).

1697. Al Rabiah v. United States, 658 F. Supp. 2d 11, 15 n.1 (D.D.C. 2009).

1698. Al Kandari v. United States, 744 F. Supp. 2d 11, 14 (D.D.C. 2010).

1699. Basardh v. Bush, 612 F. Supp. 2d 30, 31 (D.D.C. 2009).

1700. Id.

1701. Order, Al-Adahi v. Bush, No. 1:05-cv-280 (D.D.C. June 18, 2009), available at 2009 

WL 1743758.
National Security Case Management Studies (11/14/2011) 201

testimony. 1702 On the following day, however, Judge Kessler rescinded the order, 

but she did order the government to preserve a videotape of al-Adahi s testimony.1703 A four-day hearing began on June 22, 2009.1704 Al-Adahi testified on June

23 and 24.1705 A redacted transcript was filed publicly on June 26.1706 Redacted 

were the identities of the interpreter and an informant detainee.1707 On July 23, the 

government filed a notice that it did not videotape al-Adahi s testimony as ordered,1708

and Judge Kessler found the government in contempt on December

10.1709 On January 8, 2010, the government promised more reliable videotaping

procedures.1710

Judge Kessler s hearing on September 3, 2009, on Bin Mohammed s successful writ petition began with unclassified opening arguments and continued in

closed session.1711 Bin Mohammed chose not to listen to the opening arguments

or testify.1712

Judge Walton began Abd al-Rahman Abdu Abu al-Ghayth Sulayman s unsuccessful merits hearing on May 3, 2010.1713 The detainee elected to testify and to 

listen to the unclassified portions of the hearing.1714 One of Sulayman s attorneys

and an interpreter were in Guantánamo Bay; another Sulayman attorney was in

the courtroom.1715 Overcoming a few difficulties with the transmission feed, the

four-day hearing concluded successfully.1716

Proceedings on Bin Mohammed s ill-fated injunction against his transfer to

Algeria were largely under seal.1717 On the day it decided the case, the court of

appeals issued an order to show cause why its reversal of Judge Kessler s injunction should not be released publicly.1718 One week later, the order was unsealed.1719 Eleven weeks later, the government filed redacted copies of its appellate briefs, including a redacted copy of Judge Kessler s injunction opinion,1720

 1702. Id.

1703. Order, id. (June 19, 2009), available at 2009 WL 1764540. 1704. Al-Adahi Habeas Grant, supra note 1324, at 4; Al-Adahi Docket Sheet, supra note 1394. 1705. Transcript, Al-Adahi, No. 1:05-cv-280 (D.D.C. June 23 and 24, 2009, filed June 26, 2009).

1706. Id.

1707. Id.

1708. Notice, id. (July 23, 2009).

1709. Order, id. (Dec. 10, 2009).

1710. Government Brief, id. (Jan. 8, 2010).

1711. Bin Mohammed v. Obama, 689 F. Supp. 2d 38, 40 (D.D.C. 2009); Docket Sheet, Bin 

Mohammed v. Bush, No. 1:05-cv-1347 (D.D.C. July 6, 2005) [hereinafter D.D.C. Bin Mohammed

Docket Sheet].

1712. Bin Mohammed, 689 F. Supp. 2d at 40.

1713. Sulayman v. Obama, 729 F. Supp. 2d 26, 29 (D.D.C. 2010).

1714. Notice, Mohammon v. Obama, No. 1:05-cv-2386 (D.D.C. Feb. 26, 2010).

1715. Interview with Hon. Reggie B. Walton, May 23, 2011.

1716. Id.

1717. D.D.C. Bin Mohammed Docket Sheet, supra note 1711. 1718. Order, Bin Mohammed v. Obama, No. 10-5218 (D.C. Cir. July 8, 2010).

1719. Bin Mohammed Injunction Reversal, supra note 1371. 1720. Docket Sheet, Bin Mohammed, No. 10-5218 (D.C. Cir. June 30, 2010).
202 National Security Case Management Studies (11/14/2011)

but the opinion remains sealed in the district court file.1721 Redactions appear to

be protected but not classified.

Proceedings on Naji s efforts to avoid transfer to Algeria also were sealed;

sealed district court filings appear unsealed in the court of appeals case file.1722

Classified information security officers typically attend open proceedings at

which there is a possibility that someone will inadvertently say something that is

classified. The security officers will interrupt if it looks like someone is about to

say something improper for an open session. If something slips out, it is common

to redact it from the transcript.

Challenge: Classified Orders and Opinions

If an order or opinion might contain classified information, it ordinarily should be

submitted to a classified information security officer, who will forward it to

members of the intelligence community for a classification review.1723 The court

can either issue a potentially classified opinion and serve it on cleared attorneys

for the parties, with a classification review to follow, or the court can submit the

opinion to a classification review before it is issued.1724 Persons reviewing an opinion before it has been issued must be walled off from persons working with

those representing the government in court.1725

Habeas attorneys generally must travel to the secure facility in Crystal City to

review unredacted classified opinions and other classified filings.1726

District Court

Each judge presiding over a Guantánamo Bay habeas petition was provided with a 

safe for storing classified materials and a secure laptop computer, which was

stored in the safe.1727 It was determined to be too expensive to provide each judge

with a classified printer, so one was established on each floor of the district

 1721. D.D.C. Bin Mohammed Docket Sheet, supra note 1711. 1722. Naji Government Response, supra note 1375. 1723. Interview with Dep t of Justice Litig. Sec. Group Staff, July 28, 2011.

The U.S. intelligence community, or IC, consists of sixteen agencies and organizations within the Executive Branch: Air Force Intelligence, Army Intelligence, the Central Intelligence Agency, Coast Guard Intelligence, the Defense Intelligence Agency, the Department of 

Energy s intelligence arm, the Department of Homeland Security s intelligence arm, the De- partment of State s Bureau of Intelligence and Research, the Department of the Treasury s intelligence arm, the Drug Enforcement Administration, the Federal Bureau of Investigation, Marine Corps Intelligence, the National Geospatial-Intelligence Agency, the National Recon- naissance Office, the National Security Agency, and Navy Intelligence. The Office of the Director of National Intelligence is the seventeenth member of the intelligence community; and

some consider the Department of Defense another member; but by executive order, the IC

consists of sixteen agencies.

Dana Priest & William M. Arkin, Top Secret America xx n.3 (2011).

Judges are not classification authorities, so they are not empowered to determine what is classified and what is not. See id.

1724. Interview with Dep t of Justice Litig. Sec. Group Staff, July 28, 2011.

1725. Id.

1726. Id.

1727. Interview with Hon. Royce C. Lamberth, May 13, 2011.
National Security Case Management Studies (11/14/2011) 203

court.1728 Most of the judges law clerks did not have security clearances before

these cases were filed, but law clerks for all of the judges hearing these cases obtained clearances.1729

Some law clerks were cleared to work with SCI, but access to SCI requires an

Executive Branch decision that the person can be read into the specific SCI program.1730 Judge Friedman, for example, has one law clerk read into SCI for Guantánamo Bay cases and another law clerk read into SCI for another case.1731

Judge Green s January 31, 2005, opinion resolving the government s motion 

to dismiss the coordinated cases included some classified information.1732 An unredacted opinion was served on the attorneys for both sides and preserved for the

court of appeals, and a redacted version was filed on the public record.1733 In cooperation with classified information security officers, Judge Green and her staff

blacked out redactions electronically, printed the opinion on a secure printer, and

then filed a scanned image of the opinion in the court s electronic case file.1734

This procedure prevented persons from unredacting the electronic redactions.1735

Judge Green denied a government attorney s request for an advance copy so that

government attorneys could tell her what to redact.1736

Judge Leon s denials of Sliti, al-Alwi, al-Bihani, and Hammamy s habeas petitions and his granting of el-Gharani and al-Janko s habeas petitions were memorialized in both published opinions and more complete classified opinions.1737 In 

granting Ahmed s habeas corpus petition, Judge Kessler cited Judge Leon s classified El-Gharani opinion.1738

Six months after Judge Leon ruled that the government had presented sufficient evidence to detain Belkacem Bensayah at Guantánamo Bay, Bensayah filed

a motion under Rule 60(b)(2) of the Federal Rules of Civil Procedure for relief

from the judgment based on newly discovered evidence.1739 The parties filed their

briefing on this motion with the classified information security officer and filed

public notices of the filings with the clerk.1740 Within three months, Judge Leon

 1728. Id.

1729. Id.

1730. Interview with Hon. Paul L. Friedman, Oct. 12, 2011.

1731. Id.

1732. In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 447 n.7 (D.D.C. 2005) (noting

in public version Material redacted by court ); Interview with Hon. Joyce Hens Green, Sept. 21, 2011.

1733. Interview with Hon. Joyce Hens Green, Sept. 21, 2011.

1734. Id.; Interview with Dep t of Justice Litig. Sec. Group Staff, Sept. 26, 2011.

1735. Interview with Hon. Joyce Hens Green, Sept. 21, 2011.

1736. Id.

1737. Al-Ginco v. Obama, 626 F. Supp. 2d 123, 125 (D.D.C. 2009); Hammamy v. Obama, 604 F. Supp. 2d 240, 241 (D.D.C. 2009); Al-Bihani v. Obama, 594 F. Supp. 2d 35, 39 (D.D.C. 2009); El Gharani v. Bush, 593 F. Supp. 2d 144, 145 (D.D.C. 2009); Al-Alwi v. Bush, 593 F. Supp. 2d 24, 25 (D.D.C. 2008); Sliti v. Bush, 592 F. Supp. 2d 46, 47 (D.D.C. 2008).

1738. Ahmed v. Obama, 613 F. Supp. 2d 51, 56 (D.D.C. 2009).

1739. Notice, Boumediene v. Obama, No. 1:04-cv-1166 (D.D.C. May 26, 2009).

1740. Boumediene Docket Sheet, supra note 1044.
204 National Security Case Management Studies (11/14/2011)

denied the motion in a classified memorandum order filed with the classified information security officer.1741 An appeal is pending.1742

Judge Kollar-Kotelly s opinion ordering al-Rabiah s release was issued on

September 17, 2009, but it contained classified information so it was not released 

publicly.1743 A redacted version, containing 519 redactions in 65 pages, was released on September 25.1744 The redacted version of her opinion denying al- Kandari s petition, containing 82 redactions in 64 pages, was released on September 29, 2010, two weeks after the full classified opinion was issued.1745 Her other

opinions resolving habeas petitions were also put on the public record in redacted

form.1746

Judges Huvelle,1747 Kessler,1748 Robertson,1749 Urbina,1750 Kennedy,1751

Bates,1752 Leon,1753 Friedman,1754 Walton,1755and Lamberth

1756

also resolved ha-

 1741. Id.

1742. Docket Sheet, Bensayah v. Obama, No. 09-5376 (D.C. Cir. Oct. 29, 2009).

1743. Al-Odah Docket Sheet, supra note 1026. 1744. Redacted Opinion, Al-Odah v. United States, No. 1:02-cv-828 (D.D.C. Sept. 25, 2009).

1745. Redacted Opinion, id. (Sept. 29, 2010).

1746. Al Odah v. United States, 648 F. Supp. 2d 1 (D.D.C. 2009) (redacted opinion filed seven 

days after classified opinion); Al Mutairi v. United States, 644 F. Supp. 2d 78 (D.D.C. 2009) (six

days).

1747. Basardh v. Bush, 612 F. Supp. 2d 30 (D.D.C. 2009) (redacted opinion filed two days after classified opinion); see also Al-Qurashi v. Obama, 733 F. Supp. 2d 69 (D.D.C. 2010) (denying

motion to suppress confession; redacted opinion filed 16 days after classified opinion).

1748. Al-Adahi v. Obama, 698 F. Supp. 2d 48 (D.D.C. 2010) (redacted opinion filed 14 days

after classified opinion); Al-Adahi v. Obama, 692 F. Supp. 2d 85 (D.D.C. 2010) (14 days); Bin 

Mohammed v. Obama, 689 F. Supp. 2d 38 (D.D.C. 2009) (27 days); Al-Adahi Habeas Grant, supra note 1324 (four days; redactions included the names of co-petitioners and the detainee s

brother-in-law, whose identities were otherwise public); Ahmed v. Obama, 613 F. Supp. 2d 51

(D.D.C. 2009) (one day).

1749. Khalifh Opinion, supra note 1397 (redacted opinion filed 17 days after classified opinion); Salahi v. Obama, 710 F. Supp. 2d 1 (D.D.C. 2010) (18 days); Awad v. Obama, 646 F. Supp. 

2d 20 (D.D.C. 2009) (seven days).

1750. Khairkhwa v. Obama, ___ F. Supp. 2d ___, 2011 WL 2490960 (D.D.C. 2011) (redacted

opinion filed 23 days after classified opinion); Alsabri v. Obama, 764 F. Supp. 2d 60 (D.D.C. 2011) (15 days); Hatim v. Obama, 677 F. Supp. 2d 1 (D.D.C. 2009) (20 days).

1751. Hentif v. Obama, ___ F. Supp. 2d ___, 2011 WL 4102538 (D.D.C. 2011) (redacted

opinion filed 14 days after classified opinion); Mingazov Opinion, supra note 1432 (80 days);

D.D.C. Latif Opinion, supra note 1421 (26 days); Abdah v. Obama, 717 F. Supp. 2d 21 (D.D.C. 2010) (15 days); Abdah v. Obama, 709 F. Supp. 2d 25 (D.D.C. 2010) (26 days).

1752. Khan v. Obama, 741 F. Supp. 2d 1 (D.D.C. 2010) (redacted opinion filed 32 days after

classified opinion).

1753. Ali v. Obama, 770 F. Supp. 2d 1 (D.D.C. 1011) (redacted opinion filed 17 days after

classified opinion was issued).

1754. Almerfedi v. Obama, 725 F. Supp. 2d 18 (D.D.C. 2010) (redacted opinion filed 15 days

after classified opinion). 

1755. Bostan v. Obama, ___ F. Supp. 2d ___ 2011 WL 5127620 (D.D.C. 2011) (redacted

opinion filed 19 days after classified opinion); Hussein v. Obama, ___ F. Supp. 2d ___ 2011 WL

5114842 (D.D.C. 2011) (15 days); Opinion, Mohammon v. Obama, No. 1:05-cv-2386 (D.D.C. Oct. 7, 2010) (15 days); Sulayman v. Obama, 729 F. Supp. 2d 26 (D.D.C. 2010) (15 days).
National Security Case Management Studies (11/14/2011) 205

beas petitions with opinions containing classified information, so the opinions

were filed with a classified information security officer and redacted versions

were filed in the public record later.

Judge Collyer denied Sufyian Barhoumi s petition from the bench without a

written opinion.1757 A redacted transcript of her ruling was filed four months later.1758 Judge Collyer often issues rulings in the Guantánamo cases from the bench

because of the many logistical hurdles required when an opinion is written later.1759 All of the work must be done on a special laptop computer, which must be

stored with all classified documents in a safe, and none of the work can be done at 

home.1760

Judge Hogan denied al-Madhwani s petition with an oral ruling on December 

14, 2009.1761 On January 6, 2010, Judge Hogan filed an unclassified opinion supporting his ruling, part of which was classified. 1762 On April 28, Judge Hogan

denied al-Madhwani s motion for reconsideration,1763 filing a classified opinion

with classified information security officers.1764 Although the docket sheet promises a later filing of a redacted opinion, it does not appear to reflect such a filing.

On February 24, 2010, Judge Kennedy resolved a habeas petition with an

opinion filed with a security officer, and an opinion without apparent redactions

was filed nearly two months later.1765 A redacted opinion had been filed on March 

16, but it had to be withdrawn because it was insufficiently redacted:

A day after his March 16 order was filed on the court s electronic docket, Kennedy s

opinion vanished. Weeks later, a new ruling appeared in its place. While it reached the

same conclusion, eight pages of material had been removed, including key passages in

which Kennedy dismantled the government s case against Uthman.

. . . The creation of the additional opinion stemmed from a mishap inside the Justice Department: Kennedy s first opinion was accidentally cleared for public release before government agencies had blacked out all the classified information it cited.1766

Judge Lamberth resolved a habeas petition with an opinion that was marked

secret and filed with a security officer, but it appears that no redactions were ne-

 1756. Al-Wrafie Opinion, supra note 1395 (redacted opinion filed 53 days after classified opinion).

1757. Barhoumi Order, supra note 1358; see Barhoumi v. Obama, 609 F.3d 416, 419 (D.C. Cir. 2010). Barhoumi Transcript, supra note 1358. 1758. Barhoumi Transcript, supra note 1358 (transcribing a Sept. 3, 2009, proceeding); Docket 

Sheet, Shafiq v. Bush, No. 1:05-cv-1506 (D.D.C. July 28,2005) (noting filing on Jan. 4, 2010).

1759. Interview with Hon. Rosemary M. Collyer, Sept. 20, 2011.

1760. Id.

1761. Anam Docket Sheet, supra note 1044. 1762. Anam v. Obama, 696 F. Supp. 2d 1, 3 (D.D.C. 2010).

1763. Order, Anam v. Obama, No. 1:04-cv-1194 (D.D.C. Jan. 6, 2010).

1764. Anam Docket Sheet, supra note 1044. 1765. Abdah v. Obama, 708 F. Supp. 2d 9 (D.D.C. 2010) (public opinion filed 56 days after

original opinion), rev d sub nom. Uthman v. Obama, 637 F.3d 400 (D.C. Cir. 2011).

1766. Linzer, supra note 1336.
206 National Security Case Management Studies (11/14/2011)

cessary.1767 Judges commonly strive to craft opinions that require as few redactions as possible.1768

Judge Leon denied Obaydullah s petition on October 19, 2010, filing a public

opinion1769and promising a more complete classified opinion in the coming

weeks.1770 On November 24, Judge Leon filed a classified opinion with the court

security officers; a redacted version was filed in the public record on March 23, 2011.1771

Classified orders and opinions can be provided to cleared counsel before redacted versions are available for the public, but detainees attorneys had to review

the classified versions either at the courthouse or at the Crystal City facility.1772

Court of Appeals

Many of the opinions resolving appeals in these cases contained classified information, so redacted opinions were filed in the public record, sometimes on the

same day and sometimes a few days later.1773

On July 22, 2011, the court of appeals filed a sealed opinion reviewing an

April 9, 2010, sealed order by Judge Hogan concerning former detainees.1774

Redactions from appellate opinions usually are blacked out in the public opinion and represented by [redacted] in West s publication of the opinions. This

means that although the published opinion does not show how much material was

redacted, the version of the opinion in the case file shows whether each redaction

is the size of a word, a phrase, a paragraph, or a page. On September 6, 2011, an

opinion by Judge Merrick B. Garland indicated redactions a different way.1775

 1767. Al Warafi v. Obama, 704 F. Supp. 2d 32 (D.D.C. 2010) (public opinion filed 15 days after classified opinion).

Judge Lamberth tries to tell the public as much as he can about high-visibility cases and tries to 

avoid the speculation that results from redactions. Interview with Hon. Royce C. Lamberth, May

13, 2011.

1768. Interview with Hon. Ellen Segal Huvelle, June 13, 2011.

1769. Obaydullah v. Obama, 744 F. Supp. 2d 344 (D.D.C. 2010).

1770. Id. at 346.

1771. Opinion, Obaydullah v. Obama, No. 1:08-cv-1173 (D.D.C. Mar. 23, 2011).

1772. Interview with Hon. Reggie B. Walton, May 23, 2011.

1773. D.C. Cir. Latif Opinion, supra note 1420 (redacted opinion filed 26 days after classified

opinion); Ameziane v. Obama, 620 F.3d 1 (D.C. Cir. 2010) (apparently also redacting merely protected information, 271 days); Al-Adahi v. Obama, 613 F.3d 1102 (D.C. Cir. 2010) (same day);

Odah v. United States, 611 F.3d 8 (D.C. Cir. 2010) (seven days); Bensayah v. Obama, 610 F.3d

718 (D.C. Cir. 2010) (three days); Barhoumi v. Obama, 609 F.3d 416 (D.C. Cir. 2010) (11 days);

Awad v. Obama, 608 F.3d 1 (D.C. Cir. 2010) (same day); Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 

2008) (same day).

In another case, an order was initially filed under seal with an order to show cause why it

should not be unsealed, and the order was unsealed seven days later. Bin Mohammed Injunction 

Reversal, supra note 1371. 1774. Docket Sheet, El-Falesteny v. Obama, No. 5180 (D.C. Cir. June 3, 2010); see Former 

Guantánamo Detainees Docket Sheet, supra note 1177; Docket Sheet, Mohammon v. Obama, No. 1:05-cv-2386 (D.D.C. Dec. 13, 2005).

1775. Khan v. Obama, 655 F.3d 20 (D.C. Cir. 2011) (affirming the denial of habeas corpus relief). 
National Security Case Management Studies (11/14/2011) 207

Redactions in this opinion are indicated similarly to how they are indicated in

West s published opinions, except that the redactions are numbered from [Redaction 1] to [Redaction 11]. 1776 A separate classified appendix, filed under

seal, specifies what is redacted.1777

A 2010 opinion affirming denial of habeas corpus relief contained classified

information.1778 The court shaded the material it thought was classified and ordered the government to show cause why any other parts of the opinion should

also be redacted.1779 The government identified four additional parts of the opinion for redaction.1780 The show-cause order also stated, no person may disclose, 

receive, or use the opinion, or this order and attached judgment, for any purpose

other than that of responding to this order. 1781

The government asked the court to modify its order so that it could cite the

court s new precedent in a draft brief in another case.1782 The government also

asked the court to adopt a protective order: this Court should order the Government to provide a public, unclassified version of the opinion within a specific time 

period, but the handling and distribution of the classified opinion will otherwise

be controlled by the governing protective order. 1783

The panel granted the government s request as to the case before the panel

and referred the general request to the full court.1784 The full court decided not to

adopt a general policy:

ORDERED that the practices suggested by the government remain in the discretion

of the merits panel assigned to each case. The court denies the government s requests to

adopt a court-wide policy against certain restrictions on the government s use of classified opinions and a court-wide policy regarding classification review and preparation of

redacted opinions and judgments in all Guantanamo habeas appeals.1785 Challenge: Mental and Physical Health During Detention

On Tuesday, February 26, 2002, a Guantánamo Bay guard ordered a prisoner at

prayer to remove a makeshift turban from his head; turbans were forbidden because they could be used to conceal weapons, so guards provided tight-fitting 

prayer caps on request.1786 On the following day, many prisoners began refusing

 1776. Id. at ___ (pp. 5, 10, 21, 23, 24 & nn.2 3 of filed opinion).

1777. Id. at ___ (p. 2 n.1 of filed opinion). 

1778. Barhoumi, 609 F.3d 416.

1779. Order, Barhoumi v. Obama, No. 09-5383 (D.C. Cir. June 11, 2010) [hereinafter Bar- houmi Show-Cause Order].

The court followed a similar procedure for a 2011 petition. Order, Latif v. Obama, No. 10- 5319 (D.C. Cir. Oct. 14, 2011).

1780. Government Response at 2, id. (June 17, 2010).

1781. Barhoumi Show-Cause Order, supra note 1779. 1782. Government Motion, Barhoumi, No. 09-5383 (D.C. Cir. June 22, 2010).

1783. Id. at 4.

1784. Order, id. (June 22, 2010).

1785. Order, id. (Nov. 17, 2010).

1786. See James Dao, Detainees Stage Protest at Base Over a Turban, N.Y. Times, Mar. 1, 2002, at A12; Greenberg, supra note 1040, at 182 83.
208 National Security Case Management Studies (11/14/2011)

to take meals, in protest.1787 An announcement on Thursday that prisoners could

wear turbans, reserving a right to inspect them, abated the hunger strike somewhat.1788 A month later, camp doctors began force-feeding two strikers.1789 Hunger strikes and suicide attempts were a problem at Guantánamo Bay from time to

time thereafter.1790 Some detainees engaged in hunger strikes for several years.1791

In 2004, Judge Bates denied a motion by the detainee Khadr for an independent medical evaluation.1792 Khadr was captured as a juvenile in Kabul in

2002.1793 Judge Bates determined that his mental competency was not legally an

issue because he did not face criminal charges, and Judge Bates declined to interfere with conditions of detention at Guantánamo Bay.1794 Later, Judge Bates denied Khadr a preliminary injunction against torture because Khadr s attorneys

could not show that torture was imminent.1795

On July 21, 2005, the Pentagon reported that 50 Guantánamo Bay detainees

were on a hunger strike.1796 Promises to improve conditions abated the strike a

week later.1797 In August, however, detainees were striking again.1798 On September 1, habeas attorneys in five cases filed with the classified information security

officers motions for a preliminary injunction requiring the government to provide 

the striking detainees with appropriate medical treatment.1799 The judges assigned

to these cases transferred the motions to Judge Oberdorfer for resolution.1800

 1787. See Dao, supra note 1786; Greenberg, supra note 1040, at 185; Margulies, supra note 

1018, at 138.

1788. See Greenberg, supra note 1040, at 190; Eric Schmitt, A Concession on Turbans Calms

Protest in Cuba Camp, N.Y. Times, Mar. 2, 2002, at A9.

1789. See James Dao, Navy Doctors Force-Feeding 2 Prisoners, N.Y. Times, Apr. 2, 2002, at

A12.

1790. See Carlotta Gall & Neil A. Lewis, Tales of Despair from Guantánamo, N.Y. Times, June 17, 2003, at A1.

1791. Al-Adahi v. Obama, 596 F. Supp. 2d 111, 117 (D.D.C. 2009); see also id. at 114 n.3

( The Government designates detainees as hunger-strikers after they have missed nine consecutive 

meals. ). 1792. O.K. v. Bush, 344 F. Supp. 2d 44 (D.D.C. 2004).

1793. Khadr v. Bush, 587 F. Supp. 2d 225, 228 (D.D.C. 2008); O.K., 344 F. Supp. 2d at 49.

1794. O.K., 344 F. Supp. 2d at 48, 54; see also Opinion, Al-Ghizzawi v. Bush, No. 1:05-cv- 2378 (Oct. 2, 2006), available at 2006 WL 2844781 (denying a similar medical care motion).

1795. O.K. v. Bush, 377 F. Supp. 2d 102, 103, 111 15, 118 (D.D.C. 2005).

1796. See Guantánamo Hunger Strike Is Reported, N.Y. Times, July 22, 2005, at A16.

1797. See Lewis, supra note 1198. 1798. See Al Odah v. United States, 406 F. Supp. 2d 37, 39 (D.D.C. 2005) (concerning the

hunger strike of Fawzi al-Odah); Neil A. Lewis, Hunger Strike by Detainees Goes to Court, N.Y. Times, Sept. 22, 2005, at A29.

1799. Notice of Filing, Al-Habashi v. Bush, No. 1:05-cv-765 (D.D.C. Sept. 14, 2005); Notice

of Filing, Abu Imran v. Bush, No. 1:05-cv-764 (D.D.C. Sept. 13, 2005); Notice of Filing, Abdulaziz v. Bush, No. 1:05-cv-492 (D.D.C. Sept. 13, 2005); Notice of Filing, Deghayes v. Bush, No. 1:04-cv-2215 (D.D.C. Sept. 13, 2005); Notice of Filing, El-Banna v. Bush, No. 1:04-cv-1144 

(D.D.C. Sept. 13, 2005); see Lewis, supra note 1798. 1800. Order, El-Banna, No. 1:04-cv-1144 (D.D.C. Sept. 27, 2005) (order by Roberts); Order, Deghayes, No. 1:04-cv-2215 (D.D.C. Sept. 26, 2005) (order by Collyer); Order, Al-Habashi, No. 1:05-cv-765 (D.D.C. Sept. 23, 2005) (order by Sullivan); Order, Aziz, No. 1:05-cv-492 (D.D.C.
National Security Case Management Studies (11/14/2011) 209

While the motions were pending, hunger striking became more prevalent.1801

Judge Oberdorfer followed Judge Bates s resolution of a medical care motion and, on September 28, denied the injunction without prejudice.1802 Judges Kollar- Kotelly and Urbina denied similar motions in other cases a few days later.1803 In 

2009, Judge Leon relied on Judge Bates s opinion in denying a motion for an independent medical examination.1804

From September 19 to September 29, 2005, counsel representing six detainees 

in four cases before Judge Kessler moved for emergency injunctive relief ordering 

the government to provide the attorneys with access to their clients, who were being force-fed because of their participation in a hunger strike, and to their clients

medical records.1805 The government argued that it would be infeasible to provide

every detainee s attorney with medical updates.1806 On October 26, Judge Kessler

ordered the government to provide contemporaneous medical information on

force-fed detainees to their attorneys.1807

Government attorneys assured the court that another sort of medical treatment

would not be forced upon a detainee.1808 Judge Friedman ruled against the detain- ee s request for transfer to the Bethesda Naval Hospital for the procedure.1809 Saifullah Paracha was a Pakistani millionaire arrested in Bangkok in July 2003.1810

He was interrogated at the Bagram Airbase in Afghanistan; in September 2004, he 

was transferred to Guantánamo Bay.1811 He allegedly acted as a financier and

 Sept. 23, 2005) (order by Robertson); Order, Abu Imran, No. 1:05-cv-764 (D.D.C. Sept. 21, 2005)

(order by Kollar-Kotelly).

1801. See Lewis, supra note 1198. 1802. El-Banna v. Bush, 394 F. Supp. 2d 76, 78 79 (D.D.C. 2005).

1803. Order, Al-Oshan v. Bush, No. 1:05-cv-520 (D.D.C. Oct. 5, 2005) (also applying to Nos. 1:05-cv-1048, 1:05-cv-1429, 1:05-cv-1453, and 1:05-cv-1724); Opinion, Al-Odah v. United

States, No. 1:02-cv-828 (D.D.C. Sept. 30, 2005); see Al Odah, 406 F. Supp. 2d 37 (denying a subsequent motion because the detainee s medical situation was caused by his own hunger strike). 1804. Order, Sliti v. Obama, No. 1:05-cv-429 (D.D.C. Apr. 28, 2009).

1805. Motion, Al-Razak v. Bush, No. 1:05-cv-1601 (D.D.C. Sept. 29, 2005); Motion, Al- Adahi v. Bush, No. 1:05-cv-280 (D.D.C. Sept. 20, 2005); Motion, Al-Joudi v. Bush, No. 1:05-cv- 301 (D.D.C. Sept. 19, 2005); Motion, Al-Marri v. Bush, No. 1:04-cv-2035 (D.D.C. Sept. 19, 2005).

1806. Al-Joudi v. Bush, 406 F. Supp. 2d 13, 15 16 (D.D.C. 2005).

1807. Id. at 23; see Neil A. Lewis, Guantánamo Detainees Gain in Ruling, N.Y. Times, Oct. 27, 2005, at A22.

Judge Kessler observed that it was very difficult to determine how disruptive the detainees

forced feeding was. Interview with Hon. Gladys Kessler, May 31, 2011.

1808. Order, Paracha v. Bush, No. 1:04-cv-2022 (D.D.C. Nov. 20, 2006) [hereinafter Cardiac

Catheterization Order], available at 2006 WL 3355177; see Carol Rosenberg, Captive Seeks Medical Venue, Miami Herald, Nov. 16, 2006, at 3A (reporting on a government representation that

with the exception of involuntary forced feedings, medical procedures are only carried out with

the consent of a detainee ). 1809. Cardiac Catheterization Order, supra note 1808; see Carol J. Williams, Detainee Refuses 

Surgery, L.A. Times, Nov. 23, 2006, at 22.

1810. See Zarar Khan, Wife Says Detainee Has Done No Wrong, Philadelphia Inquirer, Mar. 6, 

2006, at A7.

1811. See Rosenberg, supra note 1808.
210 National Security Case Management Studies (11/14/2011)

weapons-smuggler for al-Qaeda.1812 In July 2006, his son Uzair was sentenced in 

the Southern District of New York to 30 years for providing material support to

al-Qaeda.1813 The elder Paracha, who had survived two heart attacks, reported

chest pains the following fall, so prison physicians prescribed a cardiac catheterization, in which a catheter is snaked through a patient s artery into the heart for

diagnostic purposes.1814 The unsuccessful motion was based on a claim that the

procedure could not be performed safely at Guantánamo Bay.1815 Judge Friedman

ruled that Paracha failed to establish irreparable injury.1816 The court of appeals

summarily affirmed.1817

Litigation over medical issues occurred against a backdrop of occasional suicides. In addition to the three June 2006 suicides, Abdul Rahman Ma ath Thafir

al-Amri was found dead by apparent suicide in 2007.1818 Mohammad Ahmed Abdullah Saleh al-Hanashi, who had been on a hunger strike, apparently committed

suicide in 2009.1819 Hajji Nassim, a high-value detainee, apparently killed himself

in 2011.1820

In 2009 and 2010, Judge Urbina ordered medical treatment and psychiatric

evaluation for Abdul Rahman Shalabi to ensure that Shalabi could meaningfully

assist counsel with his petition.1821 Shalabi had been on a hunger strike since August 2005.1822 To keep him alive, the government force-fed him twice a day

through his nose.1823

 1812. See Detainee Wants to Be Relocated for Surgery, Wash. Post, Nov. 19, 2006, at A10.

1813. Docket Sheet, United States v. Paracha, No. 1:03-cr-1197 (S.D.N.Y. Oct. 8, 2003); see

Opinion, id. (Jan. 3, 2006), available at 2006 WL 12768 (discussing the son s unsuccessful motion to compel the father s testimony at trial). The court of appeals affirmed the conviction. United 

States v. Paracha, 313 Fed. Appx. 347 (2d Cir. 2008).

1814. See Detainee Wants to Be Relocated for Surgery, supra note 1812; Rosenberg, supra

note 1808; Williams, supra note 1809. 1815. See Rosenberg, supra note 1808; see also Cucullu, supra note 1040, at 161 62 (reporting anger by a military officer that so many resources had been wasted on a detainee who ultimately refused the procedure); Williams, supra note 1809 (reporting on the government s claim

that nearly $400,000 was spent flying in a 24-member team of cardiac specialists and equipment

to be on hand in case of complications ). 1816. Cardiac Catheterization Order, supra note 1808. 1817. Order, Paracha v. Bush, No. 06-5379 (D.C. Cir. Dec. 1, 2006).

1818. See Cucullu, supra note 1040, at 132 33; William Glaberson, Detainee Found Dead in Guantánamo Cell, N.Y. Times, May 31, 2007, at A14; William Glaberson & Margot Williams, Pentagon Files Of er Details on Detainee in Suicide, N.Y. Times, June 1, 2007, at A22; Gorman, supra note 1134, at 16 (reporting that before his death al-Amri suffered from untreated hepatitis B

and tuberculosis and was so ill that he could barely walk); Savage, supra note 1527. 1819. Al-Hanashi Death Notice, supra note 1172; see William Glaberson & Margot Williams, Of icials Report Suicide of Guantánamo Detainee, N.Y. Times, June 3, 2009, at A17; Savage, supra note 1527. 1820. Nassim Death Notice, supra note 1172; see Found Dead, supra note 1656. 1821. Al-Oshan v. Obama, 753 F. Supp. 2d 1 (D.D.C. 2010); Order, Al-Oshan v. Obama, No. 1:05-cv-520 (D.D.C. Nov. 13, 2009); Order, id. (July 14, 2009); Order, id. (June 3, 2009).

1822. Al-Oshan, 753 F. Supp. 2d at 2.

1823. Id.
National Security Case Management Studies (11/14/2011) 211

Detainees health can become an issue in a variety of ways. Some detainees

had health issues before they arrived at Guantánamo Bay. Some detainees developed health issues at Guantánamo Bay. Some detainees recovered from health

issues at Guantánamo Bay and argued that earlier statements by them were compromised by earlier ill health.1824

Challenge: Religious Accommodation

At the March 6, 2009, hearing Judge Sullivan held to determine whether al-Sharbi 

was knowingly and competently withdrawing his habeas petition voluntarily, in

which al-Sharbi participated by video conference from Guantánamo Bay, Judge

Sullivan recessed the proceeding briefly at al-Sharbi s request so that al-Sharbi 

could pray.1825

Challenge: Ordering Testimony from an Ambassador

On June 10, 2010, Judge Kessler ordered Daniel Fried, Special Envoy for the Closure of the Guantánamo Bay Detention Facility, to appear at a hearing on Bin

Mohammed s application for an injunction against his transfer to Algeria.1826

In my capacity as Special Envoy, I engage in diplomatic dialogue with foreign governments concerning the repatriation and/or resettlement of individuals who are detained at

the U.S. detention facility at Guantanamo Bay, Cuba. My position was established in order to intensify diplomatic efforts to arrange for the repatriation or resettlement of individuals approved for such disposition under the review procedures established by Executive Order 13,492, which was signed by President Obama on January 22, 2009.1827 Ambassador Fried had submitted declarations assuring the court of Bin Mohammed s safety in Algeria,1828

and Judge Kessler determined that this Court has

an obligation to ensure that there is real substance behind the conclusory phrases

contained in Special Envoy Fried s declarations. 1829

The government sought reconsideration from Judge Kessler and relief from

the court of appeals.1830 On Friday, June 25, the court of appeals ordered Judge

Kessler to put her case in an appealable posture by 4:00 p.m. on Tuesday.1831 On 

June 29, Judge Kessler, without hearing testimony from Ambassador Fried, en-

 1824. Interview with Hon. Rosemary M. Collyer, Sept. 20, 2011.

1825. Al Sharbi v. Bush, 601 F. Supp. 2d 317, 320 n.3 (D.D.C. 2009).

1826. Order, Bin Mohammed v. Obama, No. 1:05-cv-1347 (D.D.C. June 10, 2010) [hereinafter 

Bin Mohammed Hearing Order].

1827. July 9, 2009, Fried Declaration, attached as Ex. 9, Government Opposition, Naji v. Obama, No. 10-5191 (D.C. Cir. July 15, 2010).

1828. Nov. 25, 2009, Fried Declaration, attached as Ex. 10, id.; July 15, 2009, Fried Declaration, supra note 1827. 1829. Bin Mohammed Hearing Order, supra note 1826, at 2.

1830. Bin Mohammed Injunction, supra note 1368, at 2.

1831. Order, Bin Mohammed v. Obama, No. 10-5200 (D.C. Cir. June 25, 2010); Bin Mohammed Injunction, supra note 1368, at 2 3.
212 National Security Case Management Studies (11/14/2011)

joined Bin Mohammed s transfer to Algeria.1832 The court of appeals dissolved

the injunction on July 8.1833

 1832. Bin Mohammed Injunction, supra note 1368. 1833. Bin Mohammed Injunction Reversal, supra note 1371.
National Security Case Management Studies (11/14/2011) 213

Dirty Bomber

Padilla v. Rumsfeld (Michael B. Mukasey, 

S.D.N.Y.), Padilla v. Hanft and Padilla v. 

Rumsfeld (Henry F. Floyd, D.S.C. ), and United 

States v. Hassoun (Marcia G. Cooke, S.D. Fla.)

Jose Padilla was born in Brooklyn to Puerto Rican parents.1834 On May 8, 2002, upon his landing at O Hare International Airport in Chicago on a trip from Pakistan, federal authorities arrested him on a material witness warrant arising from a

grand jury investigation of the September 11, 2001, attacks.1835 Padilla was flown

to Manhattan for detention and possible grand jury testimony.1836

On June 10, at a press conference in Russia, Attorney General John Ashcroft

announced that the government was holding in custody an enemy combatant who

had been apprehended at O Hare on suspicion of planning to build and detonate a

dirty bomb, which is a bomb made up of radioactive material and conventional

explosives.1837 The detainee was Padilla, and the government had transferred him

the previous day to the high-security Consolidated Naval Brig in Charleston,

 1834. Padilla ex rel. Newman v. Bush, 233 F. Supp. 2d 564, 572 (S.D.N.Y. 2002); see United 

States v. Jayyousi, 657 F.3d 1085, 1096 (11th Cir. 2011) ( they referred to Padilla as the Puerto

Rican because of his Puerto Rican descent ); Dan Eggen & Susan Schmidt, Dirty Bomb Plot

Uncovered, U.S. Says, Wash. Post, June 11, 2002, at A1; James Risen & Philip Shenon, U.S. Says

It Halted Qaeda Plot to Use Radioactive Bomb, N.Y. Times, June 11, 2002, at A1; Jo Thomas &

Dana Canedy, A Hispanic s Odyssey Into the Arms of Islam, N.Y. Times, June 15, 2002, at A14;

Jodi Wilgoren & Jo Thomas, From Chicago Gang to Possible Al Qaeda Ties, N.Y. Times, June

11, 2002, at A19.

1835. Rumsfeld v. Padilla, 542 U.S. 426, 430 31 (2004); Padilla v. Hanft, 423 F.3d 386, 388

90 (4th Cir. 2005); Padilla v. Rumsfeld, 352 F.3d 695, 699 (2d Cir. 2003); Padilla, 233 F. Supp. 2d at 568 69, 571, 573; see Jayyousi, 657 at 1094, 1101; see also Eggen & Schmidt, supra note 

1834; John J. Gibbons, Commentary on the Terror on Trial Symposium, 28 Rev. Litig. 297, 304

(2008); Hafetz, supra note 502, at 47, 73; Robert C. Herguth, Former Chicagoan Trained with

the Enemy, U.S. Says, Chi. Sun Times, June 10, 2002, at 3; Donna R. Newman, What the F Is 

an Enemy Combatant ?, in The Guantánamo Lawyers, supra note 1023, at 361, 361; Pohlman, supra note 220, at 76; Risen & Shenon, supra note 1834; Soufan, supra note 64, at 407 08, 428;

Wilgoren & Thomas, supra note 1834. 1836. Padilla, 542 U.S. at 431; Padilla, 423 F.3d at 390; Padilla, 352 F.3d at 700 ( On May

15, 2002, he appeared before Chief Judge Mukasey, who appointed Donna R. Newman, Esq., to

represent Padilla. ); see Eggen & Schmidt, supra note 1834; Gibbons, supra note 1835, at 304.

1837. Padilla, 233 F. Supp. 2d at 572 73; see Eggen & Schmidt, supra note 1834; Hafetz, supra note 502, at 47; Herguth, supra note 1835; Newman, supra note 1835, at 362; Risen & Shenon, supra note 1834; US Announces Arrest of Alleged Al-Qaeda Terrorist, Morning Edition

(NPR radio broadcast June 10, 2002); see also Soufan, supra note 64, at 408 (reporting that the

Attorney General was misinformed: While Padilla was a committed terrorist set on trying to

harm America, he was a brain transplant away from making a bomb, and there was no unfolding

plot. ); Stafford Smith, supra note 1023, at 49 80 (arguing that the alleged dirty bomb plot was

almost certainly a fantasy ).
214 National Security Case Management Studies (11/14/2011)

South Carolina.1838 As a result of this transfer, Padilla was denied access to counsel.1839

Padilla had been scheduled to appear on June 11 before the Southern District

of New York s chief judge Michael B. Mukasey for a hearing on his motion to

vacate the material witness warrant.1840 As a result of Padilla s change in status

from material witness to enemy combatant, the government vacated the warrant.1841 Padilla s attorney filed a habeas corpus petition on his behalf.1842 Judge 

Mukasey ruled that she had standing to do that as Padilla s next friend

1843 and denied the government s motion to transfer the habeas case to the District of South

Carolina.1844

Judge Mukasey ruled that the President had the power to detain Padilla as an

enemy combatant,1845 but he also ruled that Padilla had a right to consult counsel

and pursue a habeas corpus petition challenging the grounds for the detention.1846

The government would have to show only some evidence to support its determination that Padilla was an enemy combatant.1847 On reconsidration, Judge Mu-

 1838. Padilla, 542 U.S. at 431 32; Padilla, 423 F.3d at 390; Padilla, 352 F.3d at 700; Padilla, 233 F. Supp. 2d at 569; see Eggen & Schmidt, supra note 1834; Gibbons, supra note 1835, at

304 05; Pohlman, supra note 220, at 76 77; Risen & Shenon, supra note 1834. 1839. Padilla, 233 F. Supp. 2d at 574.

1840. Padilla, 352 F.3d at 700; Padilla, 233 F. Supp. 2d at 571; see Eggen & Schmidt, supra

note 1834; Gibbons, supra note 1835, at 304 05; Risen & Shenon, supra note 1834; see also Soufan, supra note 64, at 408 (noting that Judge Mukasey had signed the warrant).

Judge Mukasey had appointed counsel to represent Padilla in his material witness case:

In May 2002, when it seemed that the smell of the debris and smoke from the demise of

the Twin Towers had just cleared, I received a call from the courtroom deputy to the Honora- ble Michael B. Mukasey, then chief judge of the U.S. District Court for the Southern District of New York. He asked me to appear in court the following week for an assignment representing a grand-jury material witness who was being held in connection with the grand 

jury sitting to investigate 9/11.

Newman, supra note 1835, at 361.

1841. Padilla, 542 U.S. at 432 n.3; Padilla, 233 F. Supp. 2d at 571; see Newman, supra note 

1835, at 362.

1842. Padilla, 542 U.S. at 432; Padilla, 352 F.3d at 700; Padilla, 233 F. Supp. 2d at 571;

Docket Sheet, Padilla v. Rumsfeld, No. 1:02-cv-4445 (S.D.N.Y. June 12, 2002); see Newman, 

supra note 1835, at 364 65; see also Gibbons, supra note 1835, at 305; Hafetz, supra note 502, at

47; Pohlman, supra note 220, at 77; Susan Schmidt & Kamran Khan, Lawmakers Question CIA on 

Dirty-Bomb Suspect, Wash. Post, June 13, 2002, at A11.

1843. Padilla, 233 F. Supp. 2d at 569, 575 78, 610; see Benjamin Weiser, Judge Says Man Can Meet with Lawyer to Challenge Detention as Enemy Plotter, N.Y. Times, Dec. 5, 2002, at

A24. The court of appeals affirmed. Padilla, 352 F.3d at 702 04, 724.

1844. Padilla, 233 F. Supp. 2d at 569, 578 87, 610. The court of appeals affirmed. Padilla, 352 F.3d at 704 10, 724.

1845. Padilla, 233 F. Supp. 2d at 569, 587 99, 610; see Pohlman, supra note 220, at 84 85; 

Weiser, supra note 1843. 1846. Padilla, 233 F. Supp. 2d at 569, 588, 599 605, 610; see Andrew G. Patel, Accessing Padilla, in The Guantánamo Lawyers, supra note 1023, at 364, 364 65; Pohlman, supra note 220, at

84 85; Weiser, supra note 1843. 1847. Padilla, 233 F. Supp. 2d at 570, 605 10; see Pohlman, supra note 220, at 85; Weiser, supra note 1843.
National Security Case Management Studies (11/14/2011) 215

kasey upheld his original ruling on access to counsel.1848 At the government s request, a month later, Judge Mukasey certified the issue for interlocutory appeal.1849

Over the dissent of Judge Richard C. Wesley, Judges Rosemary S. Pooler and

Barrington D. Parker, Jr., determined Padilla s detention to be unlawful: Padilla s detention was not authorized by Congress, and absent such authorization, the

President does not have the power under Article II of the Constitution to detain as

an enemy compatant an American citizen seized on American soil outside a zone

of combat. 1850 The court ordered Padilla released from military custody, and the

court acknowledged that he could be held as a material witness or for criminal

prosecution.1851

On June 28, 2004, the Supreme Court reversed, holding that Padilla should

have brought his habeas corpus petition in the District of South Carolina, where

he was held.1852 On the same day, however, the court held that foreign nationals

apprehended abroad and held at the Guantánamo Bay Naval Base in Cuba could

challenge their detention through habeas corpus.1853

The court resolved a third case that day: a habeas corpus petition by Yaser

Hamdi, who, like Padilla, was an American citizen held as an enemy combatant in

a naval brig.1854 But Hamdi was apprehended in Afghanistan.1855 No opinion was

 Later, in another case, the Supreme Court determined that the some evidence standard is too

lenient. Hamdi v. Rumsfeld, 542 U.S. 507, 537 (2004) (four-justice plurality opinion); id. at 540

541 (Souter, joined by Ginsburg, concurring in part, dissenting in part, and concurring in the

judgment, rejecting the government s proposed some evidence standard). 1848. Padilla ex rel. Newman v. Rumsfeld, 243 F. Supp. 2d 42 (S.D.N.Y. 2003); see Pohlman, 

supra note 220, at 85 86.

1849. Padilla ex rel. Newman v. Rumsfeld, 256 F. Supp. 2d 218 (S.D.N.Y. 2003); see Benjamin Weiser, New Turn in Dirty Bomb Case, N.Y. Times, Apr. 10, 2003, at B15; see also Docket Sheet, Padilla v. Rumsfeld, No. 03-2235 (2d Cir. Apr. 21, 2003) (government s appeal); Docket

Sheet, Padilla v. Rumsfeld, No. 03-2438 (2d Cir. June 10, 2003) (Padilla s cross-appeal).

1850. Padilla v. Rumsfeld, 352 F.3d 695, 698 (2d Cir. 2003); see Neil A. Lewis & William

Glaberson, U.S. Courts Reject Detention Policy in 2 Terror Cases, N.Y. Times, Dec. 19, 2003, at

A1; Patel, supra note 1846, at 365; Pohlman, supra note 220, at 87 88.

1851. Padilla, 352 F.3d at 699, 724.

1852. Rumsfeld v. Padilla, 542 U.S. 426, 451 (2004) (Chief Justice Rehnquist delivered the

opinion of the court, in which Justices O Connor, Scalia, Kennedy, and Thomas joined; Justice

Stevens filed a dissenting opinion, in which Justices Souter, Ginsburg, and Bryer joined.); see

Gibbons, supra note 1835, at 305; Linda Greenhouse, Access to Courts, N.Y. Times, June 29, 2004, at A1; Pohlman, supra note 220, at 120.

1853. Rasul v. Bush, 542 U.S. 466 (2004) (Justice Stevens delivered the opinion of the court, in which Justices O Connor, Souter, Ginsburg, and Breyer joined; Justice Kennedy filed an opinion concurring in the judgment; Justice Scalia filed a dissenting opinion, in which Chief Justice

Rehnquist and Justice Thomas joined.); see Greenhouse, supra note 1852. 1854. Hamdi v. Rumsfeld, 542 U.S. 507 (2004); see Gibbons, supra note 1835, at 303; Greenhouse, supra note 1852; Pohlman, supra note 220, at 76, 120.

1855. Hamdi, 542 U.S. at 510; see Gibbons, supra note 1835, at 303; Greenhouse, supra note 

1852; Pohlman, supra note 220, at 86.
216 National Security Case Management Studies (11/14/2011)

endorsed by a majority of the court,1856 but only Justice Thomas thought that

Hamdi could be detained indefinitely without a meaningful opportunity to contest

the factual basis for that detention before a neutral decisionmaker.1857

Approximately four weeks before the Supreme Court issued its opinion in Padilla s case, the government released newly declassified information on Padilla.1858 It was reported that Padilla admitted to attending a terrorist training camp, but his interest in a dirty bomb plot was only a ruse to avoid combat in Afghanistan.1859

On July 2, 2004, Padilla s New York attorney filed a habeas corpus petition

on his behalf in the District of South Carolina.1860 The court assigned the case to

Judge Henry F. Floyd.1861 On February 28, 2005, Judge Floyd declared Padilla s

military detention improper.1862 On September 9, a unanimous panel of the U.S. Court of Appeals for the Fourth Circuit reversed, determining that the 2001 Authorization for Use of Military Force Joint Resolution gave the President the authority to indefinitely detain even U.S. citizens as enemy combatants.1863

While Padilla s petition to the Supreme Court for a writ of certiorari was

pending, on November 17, 2005, the government indicted him in the Southern

District of Florida, adding him to a terrorism conspiracy case pending for nearly

 1856. Hamdi, 542 U.S. 507 (Justice O Connor announced the judgment of the court and delivered an opinion in which Chief Justice Rehnquist and Justices Kennedy and Breyer joined; Justice Souter filed an opinion concurring in part, dissenting in part, and concurring in the judgment, in which Justice Ginsburg joined; Justice Scalia filed a dissenting opinion, in which Justice Stevens joined; Justice Thomas filed a dissenting opinion.); see Pohlman, supra note 220, at 120 21, 

130.

1857. Hamdi, 542 U.S. at 579 99 (Justice Thomas dissenting); see Gibbons, supra note 1835, at 303; Greenhouse, supra note 1852; Pohlman, supra note 220, at 121.

Hamdi was released to his home in Saudi Arabia in October 2004 without charge. See Margulies, supra note 1018, at 156.

1858. See Eric Lichtblau, U.S. Spells Out Dangers Posed by Plot Suspect, N.Y. Times, June 2, 2004, at A1; Pohlman, supra note 220, at 119 20.

1859. See Lichtblau, supra note 1858. 1860. Petition, Padilla v. Hanft, No. 2:04-cv-2221 (D.S.C. July 2, 2004); see Padilla v. Hanft, 423 F.3d 386, 390 (4th Cir. 2005); Padilla v. Hanft, 389 F. Supp. 2d 678 (D.S.C. 2005); see Gibbons, supra note 1835, at 305; Hafetz, supra note 502, at 144; Pohlman, supra note 220, at 131.

1861. Docket Sheet, Padilla, No. 2:04-cv-2221 (D.S.C. July 2, 2004).

For this report, Tim Reagan interviewed Judge Floyd, his law clerks Jeff Brown and Chase

Samples, and the judge s judicial assistant Cindy Chapman on November 19, 2009, in Spartanburg, South Carolina, where Judge Floyd has his chambers.

Because of Judge Floyd s assignment to Padilla v. Rumsfeld, the court also assigned to him a

later habeas petition filed by Ali Saleh Kahlah al-Marri. Docket Sheet, Al-Marri v. Hanft, No. 2:04-cv-2257 (D.S.C. July 8, 2004).

1862. Padilla, 389 F. Supp. 2d 678; see Hafetz, supra note 502, at 144; Neil A. Lewis, Judge 

Says U.S. Terror Suspect Can t Be Held as an Enemy Combatant, N.Y. Times, Mar. 1, 2005, at

A14; Pohlman, supra note 220, at 131.

1863. Padilla, 423 F.3d 386; see Pub. L. No. 107-40, 115 Stat. 224 (2001); see Gibbons, supra

note 1835, at 306; Hafetz, supra note 502, at 144 45; Neil A. Lewis, Court Gives Bush Right to

Detain U.S. Combatant, N.Y. Times, Sept. 10, 2005, at A1; Pohlman, supra note 220, at 132.
National Security Case Management Studies (11/14/2011) 217

two years against four other defendants.1864 The case had been assigned to Judge

Marcia G. Cooke.1865

The court of appeals denied the government s motion to transfer Padilla to civilian authority in Florida.1866

[A] short time after our decision issued on the government s representation that Padilla s

military custody was indeed necessary in the interest of national security, the government

determined that it was no longer necessary that Padilla be held militarily. Instead, it announced, Padilla would be transferred to the custody of federal civilian law enforcement

authorities and criminally prosecuted in Florida for alleged offenses considerably different from, and less serious than, those acts for which the government had militarily detained Padilla.1867 The Supreme Court, however, granted the grovernment s request to transfer 

Padilla.1868 In light of Padilla s removal from military detention, the court later

denied his petition for a writ of certiorari.1869

First indicted on January 8, 2004, Adham Amin Hassoun was a Lebanese- born Palestinian charged with raising money and recruiting persons for jihad

training.1870 He and Padilla became friends when they both attended a Fort Lauderdale mosque in the 1990s.1871 Added by superseding indictment on September

16, 2004, Mohamed Hesham Youssef was charged as one of Hassoun s recruits;

 1864. Superseding Indictment, United States v. Hassoun, No. 0:04-cr-60001 (S.D. Fla. Nov. 17, 2005) [hereinafter Nov. 17, 2005, Indictment]; Docket Sheet, id. (Jan. 8, 2004) [hereinafter

S.D. Fla. Hassoun Docket Sheet]; Trying Cases, supra note 226, at 8; see Gibbons, supra note 

1835, at 306; Hafetz, supra note 502, at 145; Eric Lichtblau, In Legal Shift, U.S. Charges Detainee 

in Terrorism Case, N.Y. Times, Nov. 23, 2005, at A1; Pohlman, supra note 220, at 131; Jay

Weaver, Padilla to Face Terror Charges Here, Miami Herald, Nov. 23, 2005, at 1A.

The Miami Herald reported over a year earlier that Padilla might be indicted in Florida. Jay

Weaver, Padilla Could Be Charged in Miami, Miami Herald, June 30, 2004, at 1A.

1865. S.D. Fla. Hassoun Docket Sheet, supra note 1864; Trying Cases, supra note 226, at 8;

see Hafetz, supra note 502, at 146.

Tim Reagan interviewed Judge Cooke for this report in the judge s chambers on October 8, 2009.

1866. Padilla v. Hanft, 432 F.3d 582 (4th Cir. 2005); see Hafetz, supra note 502, at 145 46; 

Neil A. Lewis, Court Refuses U.S. Bid to Shift Terror Suspect, N.Y. Times, Dec. 22, 2005, at A1;

Pohlman, supra note 220, at 132.

1867. Padilla, 432 F.3d at 584.

1868. Hanft v. Padilla, 546 U.S. 1084 (2006); see Linda Greenhouse, Justices Let U.S. Transfer Padilla to Civilian Custody, N.Y. Times, Jan. 5, 2006; Hafetz, supra note 502, at 146; Pohlman, supra note 220, at 133; Jay Weaver, Dirty-Bomb Suspect Charged as Civilian, Miami Herald, Jan. 6, 2006, at 5B ( Padilla was flown in a military jet to Homestead Air Base, then by helicopter to Watson Island, before a convoy of U.S. marshals escorted him to the Miami Federal Detention Center for his initial court hearing. ). 1869. Padilla v. Hanft, 547 U.S. 1062 (2006); see Linda Greenhouse, Justices Decline Terrorism Case of a U.S. Citizen, N.Y. Times, Apr. 4, 2006, at A1; Hafetz, supra note 502, at 146;

Pohlman, supra note 220, at 133.

1870. Indictment, United States v. Hassoun, No. 0:04-cr-60001 (S.D. Fla. Jan. 8, 2004); Trying 

Cases, supra note 226, at 8; see Abby Goodnough, After 5 Years, Padilla Goes on Trial in Terror Case, N.Y. Times, May 15, 2007, at A14; Jay Weaver, 2 Men Facing Terror Charges, Miami Herald, Sept. 17, 2004, at 1B.

1871. See Weaver, supra note 1864.
218 National Security Case Management Studies (11/14/2011)

he was in custody in Egypt on other charges.1872 Kifah Wael Jayyousi and Kassem 

Daher were named in a sealed material support complaint filed on December 1, 2004.1873 The complaint was unsealed on March 30, 2005, when Jayyousi was

apprehended in Detroit on his return from Qatar.1874 Jayyousi was born in Jordan;1875 Daher was a Canadian citizen in overseas custody.1876 Jayyousi and Daher 

were added to the pending indictment on April 7, 2005.1877 Youssef and Daher

remain fugitives.1878

Even after Padilla was added to the indictment, there was no charge pertaining 

to a dirty bomb.1879 The dirty bomb issue never arose at all in the case.1880 But 

there was an allegation that On or about July 24, 2000, Padilla filled out a Mujahideen Data Form in preparation for violent jihad training in Afghanistan. 1881

The government claimed that it was found in Afghanistan among dozens of other

applications late in 2001.1882

Hassoun and Jayyousi, the only two defendants in local custody, were held in

solitary confinement because they were terrorism suspects; they complained of

improper detention practices: not being permitted family visits on weekends when 

family members did not have to work, not being permitted family visits in the

evenings, which meant that out-of-town family members had to pay for overnight

lodging, not being permitted long-distance telephone calls to family members at

times when the family members would be awake, severe mail delays, and various

inconveniences in meetings with attorneys.1883 Judge Cooke denied the defendants motion to be relieved of solitary confinement, but she said she would hold

the government s feet to the fire. 1884

 1872. Second Superseding Indictment, Hassoun, No. 0:04-cr-60001 (S.D. Fla. Sept. 16, 2004);

see Weaver, supra note 1870. 1873. Sealed Criminal Complaint, United States v. Jayyousi, No. 1:04-mj-3565 (S.D. Fla. Dec. 

1, 2004); Docket Sheet, id. (Apr. 4, 2005); see Trying Cases, supra note 226, at 8.

1874. See Hannah Sampson, 2 Men Held on Terror Charges, Miami Herald, Mar. 30, 2005, at

9B.

1875. See Goodnough, supra note 1870. 1876. See Sampson, supra note 1874; Weaver, supra note 1868. 1877. Nov. 17, 2005, Indictment, supra note 1864; see Jack Dolan, Third Suspect Faces Ter- ror Charges, Miami Herald, Apr. 9, 2005, at 4B.

1878. United States v. Jayyousi, 657 F.3d 1085, 1091 n.1 (11th Cir. 2011); Order, United 

States v. Hassoun, No. 0:04-cr-60001 (S.D. Fla. Feb. 24, 2006) (transferring Youssef and Daher to 

the court s fugitive case list). 1879. See Pohlman, supra note 220, at 133; Weaver, supra note 1864. 1880. Trying Cases, supra note 226, at 7; Interview with Hon. Marcia G. Cooke, Oct. 8, 2009.

1881. Nov. 17, 2005, Indictment, supra note 1864; see Jayyousi, 657 F.3d at 1093; Weaver, supra note 1868. 1882. See Jay Weaver, We Found al Qaeda Inquiry, U.S. Says, Miami Herald, Jan. 13, 2006, at 

2B; see also Jayyousi, 657 F.3d at 1093.

1883. Joint Motion, United States v. Hassoun, No. 0:04-cr-60001 (S.D. Fla. June 15, 2005)

[hereinafter Joint Motion]; see Jay Weaver, Two Men Claim Prison Abuse, Miami Herald, June

18, 2005, at 1B.

1884. Order, Hassoun, No. 0:04-cr-60001 (S.D. Fla. Sept. 21, 2005) [hereinafter Sept. 21, 2005, S.D. Fla. Order]; see Jay Weaver, Judge Backs Confinement of Two Terror Suspects, Miami 

Herald, Sept. 17, 2005, at 3B.
National Security Case Management Studies (11/14/2011) 219

A few months later, deciding that he was not a flight risk, Judge Cooke

granted Jayyousi s request for bail, setting the bond at $1.3 million and imposing

electronic monitoring.1885

On August 18, 2006, Judge Cooke dismissed the first count of the 11-count 

indictment, a charge that the defendants conspired to murder, kidnap, and maim

persons in a foreign country, as impermissibly multiplicitous of other counts.1886

The court of appeals reversed.1887

On January 4, 2007, the New York Times printed a front-page story based, in

part, on discovery that Padilla s attorneys improperly provided to the newspaper:

Tens of thousands of conversations were recorded. Some 230 phone calls form the

core of the government s case, including 21 that make reference to Mr. Padilla, prosecutors said. But Mr. Padilla s voice is heard on only seven calls. And on those seven, which

The Times obtained from a participant in the case, Mr. Padilla does not discuss violent

plots.1888 Padilla s attorneys said that the error resulted from a person in the federal defender s office s not understanding the operable protective order, and Judge

Cooke reprimanded the attorneys.1889

Jury selection began on April 16, 2007.1890 Judge Cooke had decided that the

court should send out 3,000 jury duty letters for the trial.1891 Jurors were selected

from a pool of approximately 300.1892 Voir dire lasted four weeks.1893 Judge 

Cooke decided to use a jury questionnaire.1894 On May 8, 2007, the jury was selected from a culled pool of 88 potential jurors.1895

After about three weeks of testimony, it was discovered that one of the jurors

was not a U.S. citizen.1896 The jury summons was meant for his son, who had the

same name.1897 Another juror was excused because of injuries suffered when he

 1885. Order, Hassoun, No. 0:04-cr-60001 (S.D. Fla. Jan. 25, 2006); see Weaver, supra note 

1868. 1886. Order, Hassoun, No. 0:04-cr-60001 (S.D. Fla. Aug. 18, 2006), available at 2006 WL

2415946; see Jay Weaver, Padilla Terror Count Tossed, Miami Herald, Aug. 22, 2006, at 1B.

1887. United States v. Hassoun, 476 F.3d 1181 (11th Cir. 2007); see Jayyousi, 657 F.3d at

1091; Jay Weaver, Key Charge Against Padilla Restored, Miami Herald, Jan. 31, 2007, at 1B.

1888. Deborah Sontag, In Padilla Wiretaps, Murky View of Jihad Case, N.Y. Times, Jan. 4, 2007, at A1; see Jay Weaver, Padilla Lawyers Blasted for Wiretap Leak, Miami Herald, Jan. 23, 2007, at 5B.

1889. See Jay Weaver, Judge Scolds Padilla s Lawyers for Leak, Miami Herald, Jan. 25, 2007, 

at 6B.

1890. S.D. Fla. Hassoun Docket Sheet, supra note 1864; Jayyousi, 657 F.3d at 1091; see Jay 

Weaver, Padilla Jury Picking Could Last 3 Weeks, Miami Herald, Apr. 17, 2007, at 7B.

1891. Trying Cases, supra note 226, at 10; see 3,000 in Jury Pool for Terror Trial, Miami Herald, Oct. 27, 2006.

1892. Trying Cases, supra note 226, at 10; see Abby Goodnough, Jurors Seated in Terror Trial of Padilla and 2 Others, N.Y. Times, May 9, 2007, at A18; Weaver, supra note 1890. 1893. See Goodnough, supra note 1892. 1894. Interview with Hon. Marcia G. Cooke, Oct. 8, 2009; see Jay Weaver, Padilla Terror Trial Is Ready to Unfold, Miami Herald, Apr. 15, 2007, at 1A.

1895. See Jay Weaver, Angry Lawyers Finally Pick Jury, Miami Herald, May 9, 2007, at 1B.

1896. Interview with Hon. Marcia G. Cooke, Oct. 8, 2009.

1897. Id.
220 National Security Case Management Studies (11/14/2011)

tried to prevent a break-in of his daughter s car.1898 Another juror s sister died, but 

she asked only for an early dismissal on Friday so that she could attend a memorial service in North Carolina on Saturday.1899

The jury convicted all three defendants on August 16, 2007, one day after beginning deliberations.1900 Three months later, Hassoun attempted suicide.1901 On 

January 22, 2008, Judge Cooke sentenced Padilla to 17 years and four months, Hassoun to 15 years and eight months, and Jayyousi to 12 years and eight

months.1902 The court of appeals, over a dissent, affirmed the convictions but remanded Padilla s case for a harsher sentence.1903

During his criminal prosecution in Florida, Padilla filed civil suits challenging

his conditions of confinement while designated an enemy combatant. On February 17, 2011, Judge Richard Mark Gergel dismissed a 2007 action that Padilla and 

his mother filed in the District of South Carolina against the government.1904 The 

court originally assigned the action to Judge Floyd, but the action was transferred

to Judge Gergel when he joined the bench.1905 An appeal was heard on October 

26.1906

On January 4, 2008, Padilla and his mother filed an action against Boalt Hall

law professor John Yoo, claiming that mistreatment of Padilla while in custody

resulted from improperly crafted legal opinions Yoo wrote when he worked for

 1898. Id.

1899. Id.

1900. United States v. Jayyousi, 657 F.3d 1085, 1091 92 (11th Cir. 2011); see Abby Goodnough & Scott Shane, Padilla Is Guilty on All Charges in Terror Trial, N.Y. Times, Aug. 17, 2007, at A1; Hafetz, supra note 502, at 146; Pohlman, supra note 220, at 133; Jay Weaver & Larry Lebowitz, Miami Jury Convicts Padilla, Miami Herald, Aug. 17, 2007, at 1A; Peter Whoriskey, 

Jury Convicts Jose Padilla of Terror Charges, Wash. Post, Aug. 17, 2007, at A1.

1901. See Jay Weaver, Padilla Codefendant Tries to Kill Himself, Miami Herald, Dec. 4, 2007, 

at 5B.

1902. Jayyousi, 657 F.3d at 1092; S.D. Fla. Hassoun Docket Sheet, supra note 1864; see Hafetz, supra note 502, at 146; Kirk Semple, Padilla Gets 17-Year Term for Role in Conspiracy, N.Y. Times, Jan. 23, 2008, at A14; Jay Weaver, Padilla Gets 17 Years in Jihad Conspiracy, Miami Herald, Jan. 23, 2008, at 1A; Peter Whoriskey & Dan Eggen, Judge Sentences Padilla to

17 Years, Wash. Post, Jan. 23, 2008, at A3.

1903. Jayyousi, 657 F.3d at 1119 (opinion by Circuit Judge Joel F. Dubina, joined by Circuit

Judge William H. Pryor, Jr.); see id. at 1119 35 (dissenting opinion by Circuit Judge Rosemary

Barkett, who would have suppressed Padilla s statements before he was read his Miranda rights, 

who would have suppressed lay opinion testimony, and who determined that Padilla s sentence

was reasonable); see Lizette Alvarez, Sentence for Terrorist Is Too Short, Court Rules, N.Y. Times, Sept. 20, 2011, at A12.

1904. Lebron v. Rumsfeld, 764 F. Supp. 2d 787 (D.S.C. 2011); see Judge Tosses Out Padilla

Torture Suit, Wash. Post, Feb. 18, 2011, at A2.

1905. Docket Sheet, Padilla v. Rumsfeld, No. 2:07-cv-410 (D.S.C. Feb. 9, 2007) (noting transfer on Aug. 18, 2010); Federal Judicial Center Biographical Directory of Federal Judges, http://www.fjc.gov/public/home.nsf/hisj (noting commission on Aug. 9, 2010).

1906. Docket Sheet, Lebron v. Rumsfeld, No. 11-6480 (4th Cir. Apr. 13, 2011); see Reinstate 

Torture Suit, Padilla Lawyers Urge, Miami Herald, Oct. 27, 2011, at 3A.
National Security Case Management Studies (11/14/2011) 221

the Justice Department s Office of Legal Counsel.1907 The court assigned the case

to Judge Jeffrey S. White,1908 who denied Yoo s motion to dismiss.1909 An appeal

was argued on June 14, 2010,1910 but the case was stayed1911 pending resolution of 

Ashcroft v. Al-Kidd1912 by the Supreme Court.

Challenge: Attorney Client Contacts

Padilla was transferred from New York to South Carolina without notice to his

attorney.1913 Once Padilla was designated an enemy combatant, the government

denied him access to counsel, arguing that access to counsel would interfere with

Padilla s interrogation and that Padilla might use contacts with counsel to communicate with other terrorists.1914 Judge Mukasey ruled this restriction improper.1915

[A]ccess to counsel need be granted only for purposes of presenting facts to the court in

connection with this petition if Padilla wishes to do so; no general right to counsel in

connection with questioning has been hypothesized here, and thus the intererence with interrogation would be minimal or nonexistent.1916

Judge Mukasey characterized concerns about using the attorney as a communication conduit to terrorists gossamer speculation. 1917 [T]here is no reason

that military personnel cannot monitor Padilla s contacts with counsel, so long as

those who participate in the monitoring are insulated from any activity in connetion with this petition, or in connection with a future criminal prosecution of Padilla, if there should ever be one. Further, there is nothing to suggest that a member of the court s Criminal Justice Act panel, such as Padilla s attorney, would

ever be inclined to act as conduits for their client, even if he wanted them to do

so. 1918

Unwilling to allow Padilla access to counsel, the government filed a motion to 

reconsider, violating local rules by filing the motion late and submitting a supporting affidavit without leave of court.1919 The government argued that access to

counsel would interfere with the psychological pressure on Padilla employed as

 1907. Complaint, Padilla v. Yoo, No. 3:08-cv-35 (N.D. Cal. Jan. 4, 2008); see Amended Complaint, id. (June 2, 2008).

1908. Docket Sheet, Padilla, No. 3:08-cv-35 (N.D. Cal. Jan. 4, 2008).

1909. Padilla v. Yoo, 633 F. Supp. 2d 1005 (N.D. Cal. 2009); see Adam Liptak, Padilla Sues

U.S. Lawyer Over Detention, N.Y. Times, Jan. 5, 2008, at A9.

1910. Docket Sheet, Padilla v. Yoo, No. 09-16478 (9th Cir. July 14, 2009).

1911. Order, id. (Oct. 18, 2010).

1912. ___ U.S. ___, 131 S. Ct. 2074 (2011) (recognizing the former Attorney General s qualified immunity).

1913. See Chris Hedges, Speaking for Terror Suspect, and for the Constitution, N.Y. Times

Feb. 11, 2003, at B2.

1914. Padilla ex rel. Newman v. Bush, 233 F. Supp. 2d 564, 603 (S.D.N.Y. 2002).

1915. Id. at 569, 599 605, 610; see Weiser, supra note 1843. 1916. Padilla, 233 F. Supp. 2d at 603.

1917. Id. at 604.

1918. Id.

1919. Padilla ex rel. Newman v. Rumsfeld, 243 F. Supp. 2d 42, 43 49 (S.D.N.Y. 2003).
222 National Security Case Management Studies (11/14/2011)

part of the interrogation process and access to counsel was furthermore unnecessary because the court could rely on the government s evidence alone to decide

Padilla s habeas corpus petition.1920 Judge Mukasey was not persuaded.1921

Because the court of appeals ordered Padilla released, it did not reach the issue of his right to counsel, and the government continued to deny him counsel

access until his case was pending before the Supreme Court, at which time the

government argued that that legal issue was moot.1922

In Florida, Hassoun and Jayyousi complained of insufficient access to counsel; Judge Cooke ordered that they be permitted two 15-minute telephone calls

with their attorneys each week.1923 During these legal telephone calls the [Federal Detention Center] officials shall stay a reasonable distance away from the Defendant to allow for sufficient privacy. 1924 As trial approached, Judge Cooke ordered the detention center to provide a bigger conference table for meetings between the defendants and their attorneys.1925

Challenge: Mental Health During Detention

One month before the scheduled commencement of trial, Padilla s attorneys filed

a motion to determine whether their client was competent to stand trial: he appears to be incapacitated by post traumatic stress disorder, stemming from the circumstances surrounding his time at the Naval Brig and, as a result of this incapication, is unable to assist his attorneys by providing relevant information to his

defense. 1926

Special administrative measures for Padilla s detention (SAMs) made his psychiatric evaluation difficult,1927

so Judge Cooke had the evaluation conducted in

her courtroom.1928 Judge Cooke was not present for the evaluation.1929

Judge Cooke found Padilla competent to stand trial.1930

 1920. Id. at 43.

1921. Id. at 43, 53 57; see Benjamin Weiser, Judge Is Angered by U.S. Stance in Case of

Dirty Bomb Suspect, N.Y. Times, Jan. 16, 2003, at A16.

1922. Patel, supra note 1846, at 365 65.

1923. Joint Motion, supra note 1883. 1924. Sept. 21, 2005, S.D. Fla. Order, supra note 1884. 1925. See Jay Weaver, Padilla Judge: I Don t Want to Run a Prison, Miami Herald, Feb. 4, 2006, at 1B.

1926. Motion for Mental Competency Hearing, United States v. Hassoun, No. 0:04-cr-60001 

(S.D. Fla. Jan. 25, 2006); see Deborah Sontag, Federal Judge Is Asked to Decide if Padilla Is

Competent for Trial, N.Y. Times, Dec. 14, 2006, at A24; Jay Weaver, Terror Suspect to Undergo

Mental Testing, Miami Herald, Dec. 19, 2006, at 4B.

1927. Interview with Hon. Marcia G. Cooke, Oct. 8, 2009.

1928. Id.; see Jay Weaver, Padilla Mental Evaluation to Be Done in Court, Miami Herald, Dec. 22, 2006, at 5B.

1929. Interview with Hon. Marcia G. Cooke, Oct. 8, 2009.

1930. Competency Order, Hassoun, No. 0:04-cr-60001 (S.D. Fla. Mar. 1, 2007), available at

2007 WL 610175; see Deborah Sontag, U.S. Judge Finds Padilla Competent to Face Trial, N.Y. Times, Mar. 1, 2007, at A11; Jay Weaver, Judge Rules Padilla Fit for Trial, Miami Herald, Mar. 1, 2007, at 1B; Peter Whoriskey, Judge Rules Padilla Is Competent to Stand Trial, Wash. Post, Mar. 1, 2007, at A3.
National Security Case Management Studies (11/14/2011) 223

Challenge: Classified Arguments

In response to Padilla s habeas corpus petition in New York, 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.1931 Judge Mukasey reviewed the classified declaration to assess the validity of the government s denial of Padilla s access to counsel.1932 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.1933 The classified declaration did not refer to

conduct by Padilla not described in the redacted declaration.1934

Judge Mukasey ruled that it was proper to deny Padilla access to the classified 

declaration unless Padilla rebutted the facts in the redacted declaration justifying

his designation as an enemy combatant and fairness demanded his access to the

unredacted declaration, at which time the government could elect to withdraw the

unredacted declaration instead of granting Padilla access to it, if the government 

so wished.1935

The government also presented in camera an ex parte unredacted declaration

to support its motion to reconsider Judge Mukasey s granting Padilla access to

counsel.1936 The court of appeals reviewed both unredacted declarations, but did

not rely on them.1937

In the Eleventh Circuit appeal by Padilla, Hassoun, and Jayyousi, the court instructed the parties to give notice whether classified matters would be presented at 

oral argument.1938 None was.1939 Much of the information that was classified during the district court case, such as statements made while Padilla was designated

an enemy combatant, had been declassified by the time of the appeal.1940 Hassoun s appellate brief included some still-classified information.1941

Challenge: Witness Security

To show chain of custody for Padilla s alleged Mujahideen Data Form, the government offered testimony from the CIA agent who found it.1942 The government

asked that the witness s identity be protected by use of (1) a pseudonym; (2) light

 1931. Padilla ex rel. Newman v. Bush, 233 F. Supp. 2d 564, 569 70, 572 73, 604 10 

(S.D.N.Y. 2002); see Benjamin Weiser, Lawyers for Detainee Ask Judge Not to Review Classified

Papers, N.Y. Times, Oct. 24, 2002, at A15.

1932. Padilla, 233 F. Supp. 2d at 604.

1933. Id. at 609.

1934. Id.

1935. Id. at 608 10 .

1936. Padilla ex rel. Newman v. Rumsfeld, 243 F. Supp. 2d 42, 46 (S.D.N.Y. 2003).

1937. Padilla v. Rumsfeld, 352 F.3d 695, 701 n.4 (2d Cir. 2003).

1938. Docket Sheet, United States v. Jayyousi, No. 08-10494 (11th Cir. Feb. 4, 2008).

1939. Interview with Dep t of Justice Litig. Sec. Group Staff, Apr. 19, 2010. 1940. Id.

1941. Id.

1942. Motion in Limine, United States v. Hassoun, No. 0:04-cr-60001 (S.D. Fla. Mar. 22, 2007).
224 National Security Case Management Studies (11/14/2011)

disguise (which may involve the witness wearing a wig, eyeglasses or minor facial hair ); (3) a separate entrance; (4) a prohibition on sketch artists recording

the witness likeness ; and (5) a prohibition on questioning the witness in a

manner that would expose either his classified identity, the classified identities of

other covert CIA personnel, or the specific location of the covert CIA site in

Quandahar, Afghanistan where the witness worked. 1943

At trial, the witness wore black-rimmed glasses and a closely cropped

beard.1944 He came to the courtroom from the basement by way of the prisoner

elevator.1945

Challenge: Court Security

For Padilla s Miami trial, federal deputy marshals were brought in from around

the country.1946 An extra metal detector was set up outside Judge Cooke s courtroom.1947

Challenge: Jury Security

To shield potential jurors from the public during jury selection, the court erected a 

screen in the courthouse lobby.1948 The jury was semi-sequestered.1949 Their identities were known to the court and the parties, but identifying information was not

presented in open court or otherwise made public.1950 Jurors did not report directly to the courthouse; each reported to a specific secret location one on the north

side of town and one on the south side from which they were shuttled to the

courthouse.1951 Instead of going their own way for lunch, they always ate together.1952 Once a week or so, the deputy marshals took them out for lunch.1953

Restrooms on the courtroom s floor were reserved for use by jurors and court

staff only.1954 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.1955

 1943. Id.; see Jay Weaver, Padilla Trial CIA Witness May Testify in Disguise, Miami Herald, Mar. 22, 2007.

1944. See Jay Weaver, Secret Agent Testifies about Padilla Document, Miami Herald, May

16, 2007, at 3A.

1945. Interview with Hon. Marcia G. Cooke, Oct. 8, 2009.

1946. See Goodnough, supra note 1870. 1947. See Weaver, supra note 1890. 1948. See id. 1949. Interview with Hon. Marcia G. Cooke, Oct. 8, 2009.

1950. Id.

1951. Id.

1952. Id.

1953. Id.

1954. Id.

1955. Id.
National Security Case Management Studies (11/14/2011) 225

Challenge: Classified Evidence

District of South Carolina

Padilla s attorneys wanted his habeas petition decided on legal grounds rather

than factual grounds, so evidence was never an important issue in the case.1956

However, this could not be known with certainty at the outset, so Judge Floyd s

two law clerks and his judicial assistant obtained security clearances.1957 Judge 

Floyd sits in Spartanburg, but he anticipated a possible evidentiary hearing at the

larger courthouse in Charleston, about 200 miles away.1958 For this reason, a

courtroom deputy and a court reporter there obtained security clearances.1959 As it

happened, oral arguments were held in Spartanburg, and they did not refer to classified information.1960

Judge Floyd examined some classified evidence at a sensitive compartmented

information facility (SCIF) at the courthouse in Charleston, but there was no need

for his staff to do so.1961

Southern District of Florida

All defense attorneys in the criminal case received security clearances.1962 There 

was already a SCIF in the basement of the courthouse, and defense attorneys

could review classified information in this room.1963

More than two years after Padilla s indictment, Judge Cooke granted him

access to classified evidence created during his military confinement.1964 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. Both Judge Cooke and defense attorneys viewed classified videos of

Padilla s interrogation in the basement SCIF.1965

All of Judge Cooke s staff received security clearances for this case.1966 The 

last of her cleared law clerks left in 2009, but her permanent staff her assistant, courtroom deputy, and court reporter all retain top secret clearances.1967 During 

this case, Judge Cooke did not use interns, because they would not have security

clearances.1968

 1956. Interview with Hon. Henry F. Floyd, Nov. 19, 2009.

1957. Id.

1958. Id.

1959. Id.

1960. Id.

1961. Id.; see Reagan, supra note 173, at 19 (describing SCIFs).

1962. Interview with Hon. Marcia G. Cooke, Oct. 8, 2009.

1963. Id.

1964. Order, United States v. Hassoun, No. 0:04-cr-60001 (S.D. Fla. July 5, 2006); see Judge

Allows Padilla to See Secrets, Wash. Post, July 14, 2006, at A12.

1965. Interview with Hon. Marcia G. Cooke, Oct. 8, 2009.

1966. Id.

1967. Id.

1968. Id.
226 National Security Case Management Studies (11/14/2011)

Challenge: FISA Evidence

FISA warrants resulted in evidence against each of the defendants.1969 On February 14, 2006, Hassoun moved the court

to undertake a careful review of all applications for electronic surveillance of defendant

Hassoun conducted pursuant to the Foreign Intelligence Surveillance Act ( FISA ), as

well as applications for such surveillance of any third-party target which intercepted defendant, and based upon that review, disclose the applications [and] orders to the defense, 

hold a hearing under Franks v. Delaware, 438 U.S. 154 (1978), and, as [a] result, suppress all intercepts of defendant Hassoun derived from illegally authorized FISA surveillance.1970

Judge Cooke referred the matter to Magistrate Judge Stephen T. Brown,1971

who examined in camera every application from which the Government has indicated that it derived evidence that will be used in its case against the Defendants. 1972 Judge Brown found

that each individual application contain[ed] probable cause that the subject of the surveillance was an agent of a foreign power. The Court additionally [found] that with respect

to any target who is a United States person, the probable cause finding(s) were not

based solely on activities which are protected under the First Amendment.

On April 4, 2007, Judge Cooke affirmed Judge Brown s findings: Although

the Magistrate Judge carefully reviewed the FISA applications and other materials 

that are the subject of the instant motions, I also reviewed the applications. On

review, I agree with Magistrate Judge Brown. 1973 When she was not looking at

them, Judge Cooke stored the warrant applications in a safe in her chambers.1974

Judge Cooke was also called upon to review an evidentiary substitute for classifed evidence, as provided by the Classified Information Procedures Act

(CIPA).1975 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 Judge Cooke in chambers for her private review in her office while

the agent and the security officer waited outside her door.1976

 1969. Trying Cases, supra note 226, at 8; Interview with Hon. Marcia G. Cooke, Oct. 8, 2009.

1970. Hassoun FISA Motion, United States v. Hassoun, No. 0:04-cr-60001 (S.D. Fla. Feb. 14, 2006).

1971. FISA Order, id. (Apr. 4, 2007), available at 2007 WL 1068127. 1972. Report and Recommendation at 3, id. (Dec. 15, 2006), available at 2007 WL 1068127. 1973. FISA Order, supra note 1971. 1974. Interview with Hon. Marcia G. Cooke, Oct. 8, 2009.

1975. Id.; see 18 U.S.C. app. 3; Reagan, supra note 173 (discussing CIPA).

1976. Interview with Hon. Marcia G. Cooke, Oct. 8, 2009; Interview with Dep t of Justice

Litig. Sec. Group Staff, Oct. 18, 2011.
National Security Case Management Studies (11/14/2011) 227

Lackawanna

United States v. Goba (William M. Skretny

and H. Kenneth Schroeder, Jr., W.D.N.Y.)

In May 2001, the Buffalo office of the FBI received an anonymous tip that six

young men of Yemeni dissent in Lackawanna, New York, had been to an Al- Qaeda training camp in Afghanistan that spring.1977 The men, who were all American citizens, were inspired to visit the camp by a local friend and a traveling

imam, who preached the importance of jihad.1978 The men lied to family, friends, and ultimately the FBI and said they were going to Pakistan for religious training.1979 Although they trained at the camp and lied about it afterwards, it does not

appear that they ever performed or intended to perform an act of terrorism.1980

Alleged recruiter Kamal Derwish had an apartment in Lackawanna, where he

hosted gatherings of young Yemeni-American men.1981 Derwish shared the

apartment with Yahya Goba, whom he had met at a pro-Palestinian rally in New

York City.1982 In addition to Goba, those who attended Derwish s gatherings included Sahim Alwan, Yasein Taher, Mukhtar al-Bakri, Shafal Mosed, and Faysal

Galab.1983

Juma al-Dosari a friend of Derwish s was a traveling imam who gave a

sermon in Lackawanna in the spring of 2001 urging the Muslim men there to fight 

side-by-side with their brothers in Kosovo, Chechnya, and Kashmir.1984 The sermon, and Dersish s encouragement, persuaded the Lackawanna Six to travel to

Afghanistan to train for jihad.1985 They told their families and friends, however, that they were going to Pakistan for religious study.1986

 1977. See Frontline: Chasing the Sleeper Cell (PBS television broadcast Oct. 16, 2003) [hereinafter Sleeper Cell]; Michael Powell, No Choice but Guilty, Wash. Post, July 29, 2003, at A1;

Matthew Purdy & Lowell Bergman, Where the Trail Led, N.Y. Times, Oct. 12, 2003, at 11; Temple-Raston, supra note 135, at 153.

1978. See United States v. Goba, 220 F. Supp. 2d 182, 206, 208, 212, 214 (W.D.N.Y. 2002); 

Sleeper Cell, supra note 1977; Powell, supra note 1977; Matthew Purdy, Sixth Man Pleads Guilty

to al Qaeda Training, N.Y. Times, May 20, 2003, at A17; Purdy & Bergman, supra note 1977; 

Temple-Raston, supra note 135, at 4.

1979. See Sleeper Cell, supra note 1977; Powell, supra note 1977; Purdy & Bergman, supra

note 1977. 1980. See Powell, supra note 1977; Purdy, supra note 1978; Purdy & Bergman, supra note 

1977; Marc Santora, 6 Indicted on Charges of Providing Material Aid to Terrorist Group, N.Y. Times, Oct. 22, 2002, at A19.

1981. See Sleeper Cell, supra note 1977; Purdy & Bergman, supra note 1977; Soufan, supra

note 64, at 507; Temple-Raston, supra note 135, at 31 32, 44 46.

1982. See Purdy & Bergman, supra note 1977; Temple-Raston, supra note 135, at 37.

1983. See Temple-Raston, supra note 135, at 44 45.

1984. See Purdy & Bergman, supra note 1977; Temple-Raston, supra note 135, at 81 87.

1985. See Sleeper Cell, supra note 1977; Temple-Raston, supra note 135, at 88 89.

1986. See Sleeper Cell, supra note 1977; Powell, supra note 1977; Purdy & Bergman, supra

note 1977; Temple-Raston, supra note 135, at 89.
228 National Security Case Management Studies (11/14/2011)

Taher, Mosed, and Galab flew from New York to Lahore, Pakistan, on April

28.1987 Goba, Alwan, and al-Bakri flew from Toronto to Karachi, Pakistan, on

May 14.1988 Derwish, who had moved his family to Yemen, arranged for the six to 

cross into Afghanistan to attend the al-Farooq training camp near Kandahar.1989

Shortly after arriving, however, the men began to look for opportunities to

leave.1990

Alwan, Taher, al-Bakri, Mosed, and Galab returned to the United States in

June; Goba returned in August.1991

In May 2002, al-Bakri traveled to the Middle East for a September wedding to 

a woman in Bahrain selected by his father.1992 Bahraini authorities arrested him

from his wedding bed on September 9.1993 The other five men were arrested back

home on September 13 and 14, on a criminal complaint for material support of

terrorism.1994

The defendants appeared before the U.S. District Court for the Western District of New York s Magistrate Judge H. Kenneth Schroeder, Jr., on September 14

and 16.1995 All six defendants received appointed counsel; Judge Schroeder made

a deliberate effort to appoint well-known and well-respected attorneys, appointing 

the Federal Defender to represent Goba and attorneys from the court s Criminal

Justice Act panel to represent the other defendants.1996

 1987. United States v. Goba, 240 F. Supp. 2d 242, 251 (W.D.N.Y. Jan. 16, 2003); United 

States v. Goba, 220 F. Supp. 2d 182, 189 (W.D.N.Y. 2002); see id. at 197, 207 08, 210 11, 213;

Powell, supra note 1977; Purdy & Bergman, supra note 1977; Temple-Raston, supra note 135, at

94.

1988. Goba, 240 F. Supp. 2d at 252; Goba, 220 F. Supp. 2d at 189; see id. at 197 98, 202, 216; Sleeper Cell, supra note 1977; Powell, supra note 1977; Purdy & Bergman, supra note 1977; 

Temple-Raston, supra note 135, at 94.

1989. See Powell, supra note 1977; Temple-Raston, supra note 135, at 88 89, 99 109; see also Cucullu, supra note 1040, at 214 (reporting that at the camp the men became friends with Australian David Hicks, who would become a Guantánamo Bay detainee).

1990. See Sleeper Cell, supra note 1977; Purdy & Bergman, supra note 1977; Temple-Raston, 

supra note 135, at 110 25.

1991. Goba, 240 F. Supp. 2d at 251; Goba, 220 F. Supp. 2d at 189 90; see id. at 211; Sleeper 

Cell, supra note 1977; Purdy & Bergman, supra note 1977; Temple-Raston, supra note 135, at

129.1992. See Temple-Raston, supra note 135, at 7.

1993. See Sleeper Cell, supra note 1977; John Kifner, Bahrain Presence at Crucial Time Led

to Arrest, N.Y. Times, Sept. 28, 2002, at A11; Purdy & Bergman, supra note 1977; Santora, supra 

note 1980; Temple-Raston, supra note 135, at 1, 3, 154, 205.

1994. Goba, 240 F. Supp. 2d at 244 45 & n.2; Goba, 220 F. Supp. 2d at 184; Docket Sheet, United States v. Goba, No. 1:02-cr-214 (W.D.N.Y. Oct. 21, 2002) [hereinafter Goba Docket 

Sheet]; see Sleeper Cell, supra note 1977; Powell, supra note 1977; Santora, supra note 1980; 

Temple-Raston, supra note 135, at 160 61.

1995. Goba, 240 F. Supp. 2d at 245 n.3; Goba, 220 F. Supp. 2d at 184; Goba Docket Sheet, supra note 1994. Tim Reagan interviewed Judge Schroeder for this report in the judge s chambers on October

31, 2007.

1996. Goba, 240 F. Supp. 2d at 245; Goba Docket Sheet, supra note 1994; Interview with

Hon. H. Kenneth Schroeder, Jr., Oct. 31, 2007.
National Security Case Management Studies (11/14/2011) 229

All pretrial matters in criminal cases are referred to magistrate judges in this

district.1997 On September 18 through 20, Judge Schroeder held a detention hearing in the court s large ceremonial courtroom.1998 The prosecution of alleged Al- Qaeda trainees near the first anniversary of the September 11, 2001, attacks drew

international notice. The federal courthouse in Buffalo is located on Niagara

Square, which is a plaza in front of Buffalo s city hall approximately 100 yards

across. On the days of the detention hearing, the Square was filled with large media vans for news media from all over the world.1999 Public picketers also occupied space in the plaza and around the courthouse; a popular picket read, Jail, No

Bail. 2000 Judge Schroeder strove to provide the government and the defendants

with a fair and peaceful hearing, mindful that the world was watching how we

treated criminal defendants.2001 Following the three days of hearing, the court accepted additional proffers from both sides and concluded the hearing on October

3.2002

Judge Schroeder ruled on October 8 that all defendants except for Alwan

should be detained.2003 Told that supporters were willing to post $600,000 bond

per defendant, Judge Schroeder set Alwan s bail at $600,000.2004 But Alwan was

unable to post such an amount after all, so he remained detained.2005

The six men were indicted on October 21.2006 The court assigned the case to

District Judge William M. Skretny for trial.2007

The government filed a complaint against a seventh man Jaber Elbaneh on 

September 17, 2002,2008 and an indictment against him on December 15, 2003.2009

He traveled to Yemen instead of returning from Afghanistan and became one of

 1997. Interview with Hon. William M. Skretny, Oct. 31, 2007; Interview with Hon. H. Kenneth Schroeder, Jr., Oct. 31, 2007.

1998. Goba, 240 F. Supp. 2d at 245; Goba, 220 F. Supp. 2d at 185; Goba Docket Sheet, supra

note 1994; Interview with Hon. H. Kenneth Schroeder, Jr., Oct. 31, 2007.

1999. Interview with Hon. H. Kenneth Schroeder, Jr., Oct. 31, 2007.

2000. Id.

2001. Id.

2002. Goba, 240 F. Supp. 2d at 245; Goba, 220 F. Supp. 2d at 185, 196 223; Goba Docket 

Sheet, supra note 1994; Interview with Hon. H. Kenneth Schroeder, Jr., Oct. 31, 2007.

2003. Goba, 240 F. Supp. 2d at 245; Goba, 220 F. Supp. 2d at 194 96; Goba Docket Sheet, supra note 1994; Interview with Hon. H. Kenneth Schroeder, Jr., Oct. 31, 2007; see Goba, 240 F. Supp. 2d at 244.

2004. Goba, 220 F. Supp. 2d at 194; Goba Docket Sheet, supra note 1994; Interview with

Hon. H. Kenneth Schroeder, Jr., Oct. 31, 2007.

2005. Interview with Hon. H. Kenneth Schroeder, Jr., Oct. 31, 2007; see Goba, 240 F. Supp. 2d at 244.

2006. Goba, 240 F. Supp. 2d at 244; see Purdy & Bergman, supra note 1977; Santora, supra 

note 1980; Temple-Raston, supra note 135, at 193.

2007. Goba Docket Sheet, supra note 1994. Tim Reagan interviewed Judge Skretny for this report in Judge Schroeder s chambers on October 31, 2007, following a private interview with Judge Schroeder. 

2008. Docket Sheet, United States v. Elbaneh, No. 1:02-mj-111 (W.D.N.Y. Sept. 17, 2002).

2009. Docket Sheet, United States v. Elbaneh, No. 1:03-cr-255 (W.D.N.Y. Dec. 15, 2003).
230 National Security Case Management Studies (11/14/2011)

the FBI s most-wanted terrorism suspects.2010 He was arrested in Yemen by Yemeni authorities in 2004, but he escaped two years later.2011 He surrendered to

Yemeni authorities in May 2007, who agreed not to extradite him to the U.S.2012

He was observed in public in Yemen in February 2008.2013 Yemeni authorities

arrested him again following American press reports of his boasting that his freedom was protected by Yemen s president.2014 On January 15, 2010, Judge Skretny 

appointed an attorney to represent him in U.S. court, should he ever appear.2015

A significant obstacle to the other men s defense was the government s refusal, for national-security reasons, to allow them to seek interviews with Derwish 

and al-Dosari.2016 This matter, however, was not presented to the court.2017

Each of the men agreed to plead guilty in early 2003 and was sentenced in

December 2003 to from seven to ten years in prison followed by three years of

supervised release.2018 It was reported that the defendants might have been regarded as enemy combatants had they not pleaded guilty.2019

Galab, the first to plead, was sentenced to the shortest term seven years.2020

Mosed and Taher each were sentenced to eight years; Alwan was sentenced to

 2010. http://www.fbi.gov/wanted/wanted_terrorists/@@wanted-group-listing; see Sleeper 

Cell, supra note 1977; Temple-Raston, supra note 135, at 200, 206-10; U.S. Fugitive Born in Ye- men Surrenders in Terror Case, N.Y. Times, May 25, 2007, at A11 [hereinafter U.S. Fugitive]; 

Craig Whitlock, Al-Qaeda Operative Loses Freedom in Yemen, Wash. Post, May 19, 2008, at

A10; see also Soufan, supra note 64, at 512 (noting that only indicted terrorists appear on the

FBI s most wanted terrorists site). 2011. See Dan Herbeck, Yemen Holds Lackawanna 6 Figure, Buffalo News, Jan. 21, 2010, at

A1 ( he and 22 other men, including many with alleged ties to terrorism, escaped [in February

2006] after digging a tunnel below a high-security prison in Sana, Yemen s capital ); Whitlock, supra note 2010; Craig Whitlock, Bounties a Bust in Hunt for Al-Qaeda, Wash. Post, May 17, 2008, at A1 [hereinafter Bounties]. 

2012. See Herbeck, supra note 2011 (reporting that Yemen has no extradition agreement with

the United States and that Yemen s government has refused requests from the U.S. government

to extradite him ); Temple-Raston, supra note 135, at 254; U.S. Fugitive, supra note 2010; Whitlock, supra note 2010; Robert F. Worth, Wanted by F.B.I., but Walking Out of a Yemen Hearing, N.Y. Times, Mar. 1, 2008, at A3.

2013. See Whitlock, Bounties, supra note 2011; Worth, supra note 2012. 2014. See Whitlock, supra note 2010; Whitlock, supra note 2011; see also Herbeck, supra

note 2011 (reporting that Elbaneh was sentenced to 10 years in Yemen s prison system for crimes

in Yemen).

2015. Order, United States v. Elbaneh, No. 1:03-cr-255 (W.D.N.Y. Jan. 15, 2010); see Herbeck, supra note 2011. 2016. See Temple-Raston, supra note 135, at 189, 193.

2017. Interview with Hon. William M. Skretny, Oct. 31, 2007; Interview with Hon. H. Kenneth Schroeder, Jr., Oct. 31, 2007.

2018. Goba Docket Sheet, supra note 1994; see Temple-Raston, supra note 135, at 198 205.

2019. Powell, supra note 1977 ( U.S. Attorney Michael Battle, whose region encompasses

Lackawanna, said his office never explicitly threatened to invoke enemy combatant status but that

all sides knew the government held that hammer. ); Temple-Raston, supra note 135, at 200 ( The

threat was unspoken . . . . ). 2020. Goba Docket Sheet, supra note 1994; see David Staba, Qaeda Camp Attendee Gets 7

Years, N.Y. Times, Dec. 17, 2003, at A37; Temple-Raston, supra note 135, at 198 99. 
National Security Case Management Studies (11/14/2011) 231

nine and one-half years.2021 Both Goba, who organized the trip, and al-Bakri, who

stayed at the training camp the longest, were sentenced to ten years.2022 As a reward for subsequent assistance in other prosecutions, Goba and Alwan s sentences were reduced to nine years.2023 It was reported that Goba, Alwan, and Taher were offered entry into the witness protection program.2024

Derwish apparently was killed in November 2002 in a U.S. military action in

Yemen.2025 Al-Dosari was arrested by Pakistani authorities and, in January 2002, transferred to Guantánamo Bay.2026 He attempted suicide several times while

there.2027 The government released him to Saudi Arabia on July 16, 2007.2028

 Galab was released from prison on October 17, 2008. http://www.bop.gov (reg. no. 11871- 055); see Lou Michel, U.S. Gives Half of the Lackawanna Six a Fresh Start, Buffalo News, June

13, 2009, at A1.

2021. Goba Docket Sheet, supra note 1994; see David Staba, Last in Group Gets Sentence for Aiding Al Qaeda, N.Y. Times, Dec. 18, 2003, at A41 (reporting a sentence of nine and one-half 

years for Alwan); David Staba, New York Man in Qaeda Case Will Serve 8 Years, N.Y. Times, Dec. 10, 2003, at A28 (reporting a sentence of eight years for Mosed); David Staba, Qaeda Trai- nee Is Sentenced to 8-Year Term, N.Y. Times, Dec. 5, 2003, at A32 [hereinafter Qaeda Trainee] 

(reporting a sentence of eight years for Taher); Temple-Raston, supra note 135, at 199. 

Mosed was released from prison on September 1, 2009. http://www.bop.gov (reg. no. 11875- 055).

2022. Sentence Reduction Order at 1, United States v. Goba, No. 1:02-cr-214 (W.D.N.Y. Dec. 14, 2007); Goba Docket Sheet, supra note 1994; see United States v. Goba, 220 F. Supp. 2d 182, 199, 217, 222 (W.D.N.Y. 2002); Purdy & Bergman, supra note 1977 (reporting that Goba and al- Bakri were the only two who finished training); David Staba, Judge Questions Sentence in al

Qaeda Case, N.Y. Times, Dec. 11, 2003, at A37 (reporting a sentence of ten years for Goba); Staba, Qaeda Trainee, supra note 2021 (reporting a sentence of ten years for al-Bakri); Temple- Raston, supra note 135, at 199.

Al-Bakri was the last to plead. See Purdy, Sixth Man Pleads, supra note 1978. He was released 

from prison on July 1, 2011. http://www.bop.gov (reg. no. 11879-055).

2023. Amended Judgment, Goba, No. 1:02-cr-214 (W.D.N.Y. June 29, 2010) (Alwan);

Amended Judgment, id. (Jan. 3, 2008) (Goba); Sentence Reduction Order, supra note 2022; see 

Sentence Reduction Motion, id. (May 20, 2010); Order, id. (Jan. 7, 2008) (denying Goba s motion

for a further reduction of sentence).

As one example of Goba s cooperation, on May 18, 2007, Goba testified at the trial of Jose

Padilla about the terrorist training camp Padilla allegedly applied to join. United States v. Jay- yousi, 657 F.3d 1085, 1094 (11th Cir. 2011); see Abby Goodnough, Witness Describes Training

Padilla Reportedly Received, N.Y. Times, May 19, 2007, at A9; Jay Weaver, Jihadist Testifies in Padilla Trial, Miami Herald, May 19, 2007, at 3A; Peter Whoriskey, Defense Cites Ambiguities in 

Evidence Against Padilla, Wash. Post, May 19, 2007, at A6; see also supra, Dirty Bomber. 2024. Michel, supra note 2020. 2025. See Sleeper Cell, supra note 1977; Herbeck, supra note 2011; Powell, supra note 1977; 

Purdy & Bergman, supra note 1977; Soufan, supra note 64, at 506 07; Temple-Raston, supra

note 135, at 195 98, 249 50, 252.

2026. See Sleeper Cell, supra note 1977; Powell, supra note 1977; Purdy & Bergman, supra

note 1977; Temple-Raston, supra note 135, at 139 40, 148.

2027. See Khan, supra note 1169, at 210, 298; Temple-Raston, supra note 135, at 247 49.

2028. See id. at 252.
232 National Security Case Management Studies (11/14/2011)

Challenge: Classified Evidence

As a precaution in case Judge Schroeder was called upon to review classified evidence, classified information security officers discreetly facilitated a background

check on him.2029 Article III judges are automatically cleared to see classified evidence, but magistrate judges are not.2030

The government filed potentially sensitive affidavits with Judge Schroeder to

support search warrants and detention.2031 Defense counsel were able to see these

affidavits so that they could rebut them, and defense counsel were not required to 

obtain security clearances.2032

Challenge: Court Security

For this high-profile terrorism prosecution, the Marshal established extra security

at the courthouse doors.2033 The courthouse received security sweeps three times a 

day, and security included a bomb-sniffing dog.2034 During the days of pleas and

sentences, armed surveillance officers were posted at the windows in Judge

Skretny s chambers.2035

Challenge: Religious Accommodation

The court timed hearings to accommodate both daily prayers and religious holidays for the Muslim defendants.

All testimony at the detention hearing before Judge Schroeder was taken from

government witnesses under oath.2036 But the defendants pleas before Judge

Skretny were taken by affirmation.2037

 2029. Interview with Hon. H. Kenneth Schroeder, Jr., Oct. 31, 2007.

2030. Security Procedures Established Pursuant to PL 96-456, 94 Stat. 2025, by the Chief Justice of the United States for the Protection of Classified Information ¶ 4, 18 U.S.C. app. 3 § 9 note; 

Interview with Hon. William M. Skretny, Oct. 31, 2007; Interview with Hon. H. Kenneth

Schroeder, Jr., Oct. 31, 2007; Interview with Dep t of Justice Litig. Sec. Group Staff, Apr. 24, 2007; see Reagan, supra note 173, at 3.

2031. Interview with Hon. H. Kenneth Schroeder, Jr., Oct. 31, 2007.

2032. Id.

2033. Interview with Hon. William M. Skretny, Oct. 31, 2007.

2034. Id.; Interview with Hon. H. Kenneth Schroeder, Jr., Oct. 31, 2007.

2035. Interview with Hon. William M. Skretny, Oct. 31, 2007.

2036. Interview with Hon. H. Kenneth Schroeder, Jr., Oct. 31, 2007.

2037. Interview with Hon. William M. Skretny, Oct. 31, 2007.
National Security Case Management Studies (11/14/2011) 233

A Plot to Kill President Bush

United States v. Abu Ali

(Gerald Bruce Lee, E.D. Va.)2038

On November 22, 2005, Ahmed Omar Abu Ali was convicted of plotting to kill

President George W. Bush and aiding Al-Qaeda.2039 Judge Gerald Bruce Lee of

the U.S. District Court for the Eastern District of Virginia presided over the

case.2040

Abu Ali, whose parents are Jordanian, was born in Houston, Texas, and raised 

in Falls Church, Virginia.2041 He was a 1999 valedictorian at the Islamic Saudi

Academy, a school funded by Saudi Arabia in Alexandria, Virginia, and then he

studied engineering at the University of Maryland.2042 In 2002, he went to Saudi

Arabia to attend the University of Medina.2043 He apparently had significant contacts with Al-Qaeda.2044 He was arrested in Saudi Arabia, by officers of Saudi

Arabia s counterterrorism Mabahith, on June 8, 2003, as part of an investigation

of the May 12, 2003, Riyadh bombings.2045

 2038. An appeal was heard by Fourth Circuit Judges J. Harvie Wilkinson III, Diana Gribbon

Motz, and William B. Traxler, Jr.

2039. Sentencing Order at 1 & n.1, United States v. Abu Ali, No. 1:05-cr-53 (E.D. Va. Apr. 17, 2006); see Caryle Murphy, Man Given 30 Years in Plot Against Bush, Wash. Post, Mar. 30, 2006, at A3; David Stout, American Is Sentenced to 30 Years in Terror Case, N.Y. Times, Mar. 30, 2006, at A18. See generally Stephen I. Vladeck, Terrorism Trials and the Article III Courts

after Abu Ali, 88 Tex. L. Rev. 1501 (2010).

2040. Docket Sheet, Abu Ali, No. 1:05-cr-53 (E.D. Va. Feb. 3, 2005) [hereinafter E.D. Va. Docket Sheet]; see Murphy, supra note 2039; Stout, supra note 2039; see also Gerald Bruce Lee, United States v. Abu Ali: Jury Questionnaire (Oct. 25, 2005); Gerald Bruce Lee, United States v. Abu Ali: Preliminary Venire Instructions (Oct. 25, 2005).

Tim Reagan and Joy Richardson interviewed Judge Lee for this report in the judge s chambers

on October 2, 2006.

2041. United States v. Abu Ali, 528 F.3d 210, 221; Sentencing Order, supra note 2039; see 

Paul Bradley, Prosecutors Say Terror Suspect Lied, Richmond Times Dispatch, Feb. 24, 2005, at

A5; Michael Isikoff, A Tangled Web, Newsweek, Mar. 7, 2005, at 32; Murphy, supra note 2039; 

Stout, supra note 2039. Abu Ali s father was a computer analyst for Saudi Arabia s embassy. Abu Ali, 528 F.3d at 221; 

see Isikoff, supra. 2042. Abu Ali, 528 F.3d at 221; Sentencing Order, supra note 2039, at 7; Josh Meyer, Student 

Allegedly Talked of Assassination Plots, L.A. Times, Mar. 2, 2005, at A19; Joel Mowbray, Why 

Strike Canada? Jihadists Want an Islamic State, Wash. Times, June 12, 2006, at A19.

2043. Abu Ali, 528 F.3d at 221; United States v. Abu Ali, 395 F. Supp. 2d 338, 343 (E.D. Va. 2005); Sentencing Order, supra note 2039, at 12; see Meyer, supra note 2042; Stout, supra note 

2039. 2044. Abu Ali, 528 F.3d at 221 24; see Isikoff, supra note 2041; Mowbray, supra note 2042. 2045. Abu Ali, 528 F.3d at 223 24, 238; Abu Ali, 395 F. Supp. 2d at 341, 344, 367, 384; see 

Abu Ali v. Ashcroft, 350 F. Supp. 2d 28, 30 (D.D.C. 2004); Bradley, supra note 2041; Isikoff, supra note 2041; Murphy, supra note 2039; Stout, supra note 2039.
234 National Security Case Management Studies (11/14/2011)

On July 28, 2004, Abu Ali s parents sought release of their son, filing a habeas corpus petition in the U.S. District Court for the District of Columbia.2046 On 

December 16, Judge John D. Bates denied the government s motion to dismiss the

petition for lack of jurisdiction,2047 but on September 19, 2005, Judge Bates dismissed the petition as moot, because Abu Ali had been indicted and transferred to

Virginia.2048

Abu Ali was held in Saudi Arabia until February 21, 2005, following a February 3 indictment for conspiracy to establish terrorist operations.2049 The indictment later was expanded to include conspiracy to kill the President.2050 He argued 

unsuccessfully that his confession was inadmissible because he was tortured while 

held in Saudi Arabia.2051

Although sentencing guidelines would dictate a life sentence, Judge Lee sentenced him on March 29, 2006, to 30 years in prison followed by 30 years of supervised release.2052 The court of appeals vacated the sentence;2053 although Judge 

Diana Gribbon Motz determined that the sentence was within Judge Lee s discretion,2054 Judges J. Harvie Wilkinson III and William B. Traxler, Jr., determined

that the sentence insufficiently reflected the gravity of the crime.2055 On July 27,

 2046. Docket Sheet, Abu Ali v. Ashcroft, No. 1:04-cv-1258 (D.D.C. July 28, 2004); see

Hafetz, supra note 502, at 196.

2047. Abu Ali v. Ashcroft, 350 F. Supp. 2d 28 (D.D.C. 2004); see Hafetz, supra note 502, at

196 97.

2048. Abu Ali v. Gonzales, 387 F. Supp. 2d 16 (D.D.C. 2005); see Hafetz, supra note 502, at

197.

2049. Abu Ali, 528 F.3d at 225; Abu Ali, 395 F. Supp. 2d at 341 & n.1, 357, 367, 385; United 

States v. Abu Ali, 396 F. Supp. 2d 703, 704 (E.D. Va. 2005); see Bradley, supra note 2041; Jerry

Markon & Dana Priest, Terrorist Plot to Kill Bush Alleged, Wash. Post, Feb. 23, 2005, at A1;

Murphy, supra note 2039. 2050. Abu Ali, 528 F.3d at 225; Abu Ali, 396 F. Supp. 2d at 704.

2051. Abu Ali, 528 F.3d at 231 34; Abu Ali, 395 F. Supp. 2d at 341, 373, 386 87; see Bradley, 

supra note 2041; Hafetz, supra note 502, at 197; Isikoff, supra note 2041; Jerry Markon, Conviction Upheld in Terror Plot, Wash. Post, June 7, 2008, at B3; Markon & Priest, supra note 2049; 

Meyer, supra note 2042; Murphy, supra note 2039. Portions of the confession are included in an NBC News report: http://www.msnbc.msn.com/ 

id/10266654/. 2052. Sentencing Order, supra note 2039; see Stout, supra note 2039. It was reported that Abu Ali was sent to the Super Max prison in Florence, Colorado. Daniel

McGrory, Al-Qaeda Man Who Plotted to Kill Bush Is Sent to Superjail, London Times, June

20, 2006, at 8.

2053. Abu Ali, 528 F.3d at 269, cert. denied, ___ U.S. ___, 129 S. Ct. 1312 (2009); see Markon, supra note 2051. 2054. Abu Ali, 528 F.3d at 269 82 (Motz, dissenting).

2055. Id. at 258 69 (opinion for the court).

Tim Reagan interviewed Judge Traxler for this report at the Federal Judicial Center on November 12, 2008.
National Security Case Management Studies (11/14/2011) 235

2009, Judge Lee resentenced Abu Ali to life in prison.2056 The court of appeals

affirmed the life sentence.2057

Challenge: Examination of Foreign Witnesses and Witness Security

To decide whether Abu Ali s confession should be suppressed, Judge Lee arranged for seven days of video depositions of Mabahith officers in Saudi Arabia.2058 Because the identities of Mabahith officers are secret,2059 the Saudi government would not permit them to come to the United States to testify.2060 There 

also was the risk that dangerous groups in Saudi Arabia would object to the officers cooperation with an American prosecution.2061

Judge Lee sent to Saudi Arabia two prosecutors, two defense attorneys, a

camera operator, and an interpreter.2062 A live video feed was established between 

Saudi Arabia and the United States, and the judge, additional counsel for both

sides, and the court reporter were in Alexandria.2063 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.2064

Portions of the deposition were put into evidence at a suppression hearing, in

addition to live testimony from FBI agents (who had interviewed the Mabahith

officers when Abu Ali was transported from Saudi Arabia to the United States),

 2056. E.D. Va. Docket Sheet, supra note 2040; see Hafetz, supra note 502, at 197; Jerry Markon, Falls Church Man s Sentence in Terror Plot Is Increased to Life, Wash. Post, July 28, 2009, at A3.

2057. United States v. Abu Ali, 410 F. App x 673 (4th Cir. 2011). 2058. United States v. Abu Ali, 395 F. Supp. 2d 338, 344 (E.D. Va. 2005); Order at 2, United

States v. Abu Ali, No. 1:05-cr-53 (E.D. Va. Sept. 16, 2005) [hereinafter E.D. Va. Sept. 16, 2005, Order]; Interview with Hon. Gerald Bruce Lee, Oct. 2, 2006; see David H. Laufman, Op-Ed, Ter- ror Trials Work, Legal Times, Nov. 5, 2007, at 58 (prosecuting attorney in the case observing that 

for the first time, the Saudi government permitted Saudi security officers (including a general) to

testify in an American criminal proceeding and to face rigorous cross-examination by defense attorneys even though the officers would have to answer questions about Saudi interrogation methods said to violate international human rights standards ); Vladeck, supra note 2039, at 1510

( Over Abu Ali s objection, such depositions were taken in July 2005 using procedures that, whatever their merits, were certainly novel. ). 2059. E.D. Va. Sept. 16, 2005, Order, supra note 2058; Interview with Hon. Gerald Bruce Lee, 

Oct. 2, 2006.

The Mabahith is the Saudi domestic security service. E.D. Va. Sept. 16, 2005, Order, supra

note 2058. 2060. Abu Ali, 528 F.3d at 239; Interview with Hon. Gerald Bruce Lee, Oct. 2, 2006; see E.D. 

Va. Sept. 16, 2005, Order, supra note 2058, at 2.

2061. Interview with Hon. Gerald Bruce Lee, Oct. 2, 2006; see E.D. Va. Sept. 16, 2005, Order, supra note 2058, at 5.

2062. Abu Ali, 528 F.3d at 239; Abu Ali, 395 F. Supp. 2d at 344; Interview with Hon. Gerald

Bruce Lee, Oct. 2, 2006.

2063. Abu Ali, 528 F.3d at 239 40; Abu Ali, 395 F. Supp. 2d at 344; Interview with Hon. Gerald Bruce Lee, Oct. 2, 2006.

2064. Abu Ali, 528 F.3d at 239 40; Abu Ali, 395 F. Supp. 2d at 344; Interview with Hon. Gerald Bruce Lee, Oct. 2, 2006.
236 National Security Case Management Studies (11/14/2011)

expert witnesses, and other percipient witnesses.2065 The judge ruled against suppression, but he ruled that the defense could argue coercion to the jury.2066 So the

split-screen video deposition evidence was played to the jury as well.2067

The Mabahith officers testified pseudonymously.2068 In court, the judge, the

attorneys, the defendant, and the jury could see the images, but the public had

access only to the audio portions of the depositions.2069

Taking the video depositions of foreign witnesses was challenging for several

reasons.2070 First, there was a substantial difference in time zones.2071 Second, a

secure communication line was necessary, and the availability of a secure line

was not reliable.2072 Third, the heat in Saudi Arabia sometimes caused technical

difficulties.2073

Judge Lee acknowledges something he would do differently if he had it to do

over: He would send at least one more interpreter.2074 One interpreter was not

enough, because, at the very least, interpreters need breaks.2075

Challenge: Attorney Client Contacts

During the video depositions of the Mabahith officers, Abu Ali was able to

communicate via cell phone with his defense counsel in Saudi Arabia during the

frequent breaks in the proceedings. In addition, the court was willing to stop the

depositions if Abu Ali s counsel in Saudi Arabia wanted to consult with their

client. 2076

Challenge: Classified Evidence

Some of the evidence presented in Abu Ali s trial was classified.2077 Classified 

evidence was stored in the court s sensitive compartmented information facility

(SCIF).2078 One of Abu Ali s attorneys was denied a security clearance and the

other did not apply for one, so the court appointed an attorney who already had

 2065. Abu Ali, 395 F. Supp. 2d at 344; Interview with Hon. Gerald Bruce Lee, Oct. 2, 2006.

2066. Abu Ali, 395 F. Supp. 2d at 341, 373, 386 87; Interview with Hon. Gerald Bruce Lee, Oct. 2, 2006.

2067. Interview with Hon. Gerald Bruce Lee, Oct. 2, 2006; see Abu Ali, 528 F.3d at 238 39.

2068. Abu Ali, 395 F. Supp. 2d at 344; E.D. Va. Sept. 16, 2005, Order, supra note 2058, at 4

5; Interview with Hon. Gerald Bruce Lee, Oct. 2, 2006.

2069. E.D. Va. Sept. 16, 2005, Order, supra note 2058, at 4, 7, 9 10; Interview with Hon. Gerald Bruce Lee, Oct. 2, 2006.

2070. Interview with Hon. Gerald Bruce Lee, Oct. 2, 2006.

2071. Id.

2072. Id.

2073. Id.

2074. Id.

2075. Id.

2076. United States v. Abu Ali, 528 F.3d 210, 240 (4th Cir. 2008).

2077. Interview with Hon. Gerald Bruce Lee, Oct. 2, 2006.

2078. Id.; see Reagan, supra note 173, at 19 (describing SCIFs).
National Security Case Management Studies (11/14/2011) 237

one.2079 Only the cleared attorney, and not Abu Ali or either uncleared attorney, was allowed to see classified evidence.2080

The court of appeals held that it was improper, but harmless error in this case, for the district court to permit the jury to see classified evidence that the defendant 

could not see.2081 At issue were two messages that the government claimed were

coded communications between the defendant and fellow jihadists.2082

The government produced unredacted copies of the messages to cleared counsel.2083 Uncleared counsel and the defendant received declassified copies complete in content and designating the dates of the messages, but redacted to omit

certain identifying and forensic information. 2084 Uncleared counsel were concerned that the redacted information might be relevant to when the government

acquired the messages, which would be material to the defendant s ultimately unsuccessful argument that the government s cooperation with Saudi Arabia triggered a requirement of Miranda warnings upon Abu Ali s arrest.2085 The district

court denied uncleared counsel access to the classified evidence at a hearing pursuant to the Classified Information Procedures Act (CIPA), from which Abu Ali

and his uncleared counsel were excluded, and at which Abu Ali was represented

by cleared counsel.2086

Although the defendant was only permitted to see redacted messages, the jury

was shown unredacted versions, which the court of appeals held was clearly contrary to the rights guaranteed to Abu Ali by the Confrontation Clause. 2087

If classified information is to be relied upon as evidence of guilt, the district court may

consider steps to protect some or all of the information from unnecessary public disclosure in the interest of national security and in accordance with CIPA, which specifically

contemplates such methods as redactions and substitutions so long as these alternatives

do not deprive the defendant of a fair trial. However, the government must at a minimum

provide the same version of the evidence to the defendant that is submitted to the jury. We do not balance a criminal defendant s right to see the evidence which will be used to

convict him against the government s interest in protecting that evidence from public disclosure. If the government does not want the defendant to be privy to information that is

classified, it may either declassify the document, seek approval of an effective substitute, or forego its use altogether. What the government cannot do is hide the evidence from the 

defendant, but give it to the jury. Such plainly violates the Confrontation Clause.2088

 2079. Abu Ali, 528 F.3d at 248 49; Interview with Hon. Gerald Bruce Lee, Oct. 2, 2006.

2080. Abu Ali, 528 F.3d at 248 55; Interview with Hon. Gerald Bruce Lee, Oct. 2, 2006.

2081. Abu Ali, 528 F.3d at 248 57.

2082. Id. at 236 37, 248.

2083. Id. at 249. 

2084. Id.

2085. Id. at 250; see id. at 227 31 (holding that Miranda warnings were not required).

2086. Id. at 250; see 18 U.S.C. app. 3 (text of CIPA); Reagan, supra note 173 (describing 

CIPA procedures).

2087. Abu Ali, 528 F.3d at 253; see id. at 255 ( CIPA does not . . . authorize courts to provide

classified documents to the jury when only . . . substitutions are provided to the defendant. ). 2088. Id. at 255.
238 National Security Case Management Studies (11/14/2011)

The court held, however, that the error was harmless beyond a reasonable

doubt.2089

Challenge: Classified Arguments

In the appeal, part of the record and part of the briefing concerning classified evidence were classified.2090 Classified materials were filed through the classified 

information security officer.2091 Part of oral argument was conducted in closed

session.2092

All of Judge Traxler s law clerks are career clerks, and two of them had top 

secret security clearances.2093 One of the two clerks with security clearances was 

assigned to help with the case.2094 Judge Traxler reviewed most of the classified

materials for the case in his Greenville, South Carolina, chambers;2095 there is a

SCIF in the Greenville courthouse.2096 Occasionally, classified material would be

submitted at a time when Judge Traxler was in Richmond, Virginia, to hear other

matters, and he reviewed the materials in his Richmond chambers.2097 Some material presented to the judges in this appeal was for judges eyes only, and even

law clerks with security clearances could not see it.2098

Judge Traxler observed two important challenges presented by classified materials: (1) constraints on communication and (2) burdens on protecting documents. The second challenge requires, for example, a law clerk at lunch to leave

classified materials she is working with in the judge s office under his watch.2099

Or a judge or law clerk taking a break to get coffee must take classified docu-

 2089. Id. at 255 57; id. at 256 ( In this case, we are satisfied that the jury s decision to convict 

Abu Ali was not substantially swayed by the jury s access to the limited information redacted

from the documents given to Abu Ali. ). 2090. Id. at 244 n.13; Interview with 4th Cir. Clerk s Office Staff, Feb. 26, 2008; see, e.g., Order, United States v. Abu Ali, Nos. 06-4334 and 06-4521 (4th Cir. Nov. 27, 2006) [hereinafter 4th

Cir. Classified Briefing Order] (accepting for filing classified portions of the appellant s brief and

joint appendix); Docket Sheet, Abu Ali, No. 06-4521 (4th Cir. May 22, 2006) [hereinafter 4th Cir. Governmentt Appeal Docket Sheet] (appeal by the government, noting Abu Ali s filing of a classified supplemental brief on Mar. 5, 2007, and a classified supplemental appendix on Mar. 6, 2007, and noting the government s filing of a classified supplemental brief and a classified supplemental 

appendix on April 27, 2007); Docket Sheet, Abu Ali, No. 06-4334 (4th Cir. Apr. 10, 2006) (appeal

by the defendant, same).

2091. 4th Cir. Classified Briefing Order, supra note 2090. An under seal, in camera, ex parte notice was filed in the district court on April 27, 2007. 4th

Cir. Governmentt Appeal Docket Sheet, supra note 2090 (noting that an original document was

filed with the classified information security officer).

2092. Abu Ali, 528 F.3d at 244 n.13; Interview with 4th Cir. Clerk s Office Staff, Feb. 26, 2008; see Larry O Dell, Torture Alleged in Bush-Plot Case, Richmond Times Dispatch, June 24, 2007, at B3.

2093. Interview with Hon. William B. Traxler, Jr., Nov. 12, 2008.

2094. Id.

2095. Id.

2096. Id.; Interview with 4th Cir. Clerk s Office Staff, Feb. 26, 2008. 2097. Interview with Hon. William B. Traxler, Jr., Nov. 12, 2008.

2098. Id.

2099. Id.
National Security Case Management Studies (11/14/2011) 239

ments along.2100 The communication challenge has many forms: (1) conversations

in chambers about classified portions of the case must be held behind closed

doors, excluding staff members not cleared; (2) judges -eyes-only material cannot

be discussed even with cleared clerks; and (3) communications among members

of the panel about classified matters can generally happen only in person or by

secure fax the latter was accomplished by Judge Traxler s cleared clerk taking

documents to the FBI s office in town for faxing.2101

Anticipating that the appellate court s opinion would require a classification

review, the court ordered that the government determine whether internal court

documents proposed for public release by the Court contain any classified information . . . within 72 hours after submission of the documents to the Court Security Officer. 2102 The court also ordered that the security officer and all who participate in the classification review be walled off from government counsel and

otherwise protect the confidentiality of . . . internal court documents during the

pendency of this appeal and thereafter. 2103

While the appeal was pending, the government filed in the district court an in

camera ex parte notice, and the court of appeals denied Abu Ali s motion to compel disclosure of it.2104

 2100. Id.

2101. Id.

2102. Order at 2, United States v. Abu Ali, Nos. 06-4334 and 06-4521 (4th Cir. Aug. 29, 2007) 

[hereinafter 4th Cir. Classification Review Order].

Classified information security officers, who help courts handle classified information, were

formerly known by the ambiguous term court security officers. See supra, Introduction. 2103. 4th Cir. Classification Review Order , supra note 2102, at 1 2.

2104. E.D. Va. Docket Sheet, supra note 2040.
240 National Security Case Management Studies (11/14/2011)

Paintball

United States v. Royer and United States v. Al-Timimi 

(Leonie M. Brinkema, E.D. Va.), United States v. 

Chandia (Claude M. Hilton, E.D. Va.), and United 

States v. Benkahla (James C. Cacheris, E.D. Va.)

On June 27, 2003, the United States began arresting and charging 11 men who

had been playing paintball to train for jihad since 2000 in Spotsylvania County, Virginia, about 60 miles south of Washington, D.C.2105 The indictment listed 32

terrorism counts.2106 Six defendants pleaded guilty; the court acquitted two defendants and convicted three defendants at bench trials before Judge Leonie M. Brinkema in the Eastern District of Virginia.2107 One related case was prosecuted before Judge Brinkema,2108

and another related case was prosecuted before Judge

Claude M. Hilton.2109

Nine defendants are American citizens, and three served in the U.S. military.2110 At core, they were charged with conspiracy, in violation of the Neutrality

Act,2111 to support Lashkar-e-Taiba (LET), a terrorist group that opposes Indian

 2105. United States v. Benkahla, 530 F.3d 300, 303 (4th Cir. 2008); United States v. Chandia, 514 F.3d 365, 370 (4th Cir. 2008); Docket Sheet, United States v. Royer, No. 1:03-cr-296 (E.D. Va. June 25, 2003) [hereinafter Royer Docket Sheet]; see Abu Ali v. Ashcroft, 350 F. Supp. 2d 28, 

32 (D.D.C. 2004); Khan Habeas Relief Opinion at 2, Royer, No. 1:03-cr-296 (E.D. Va. May 12, 2011); Eric Lichtblau, Group of Muslims Charged With Plotting Against India, N.Y. Times, June 

28, 2003, at A7; Jerry Markon, Virginia Jihad Defendant Sentenced, San Jose Mercury News, Aug. 26, 2006, at A7; Milton Viorst, The Education of Ali al-Timimi, Atlantic Monthly, June

2006, at 69, 77.

2106. United States v. Khan, 461 F.3d 477, 485 n.3 (4th Cir. 2006); United States v. Khan, 309 

F. Supp. 2d 789, 796 (E.D. Va. 2004); Khan Habeas Relief Opinion, supra note 2105, at 3. 2107. Benkahla, 530 F.3d at 303 04; Khan, 461 F.3d at 485 86; Khan, 309 F. Supp. 2d 789;

Chandia, 514 F.3d at 370; Khan Habeas Relief Opinion, supra note 2105, at 3; see Paul Bradley, Lengthy Sentences for Two in VA Jihad, Richmond Times Dispatch, June 16, 2004, at B1; Jerry Markon, Va. Jihad Case Hailed as Key in War on Terror, Wash. Post, June 8, 2006, at A3

[hereinafter Case Hailed]; Markon, supra note 2105; Larry O Dell, Court Hears Appeal of Jihad

Cases, Richmond Times Dispatch, May 26, 2006, at B10.

Tim Reagan interviewed Judge Brinkema for this report in the judge s chambers on January 5, 2007.

2108. Docket Sheet, United States v. Al-Timimi, No. 1:04-cr-385 (E.D. Va. Sept. 23, 2004)

[hereinafter Al-Timimi Docket Sheet].

2109. Docket Sheet, United States v. Chandia, No. 1:05-cr-401 (E.D. Va. Sept. 14, 2005)

[hereinafter Chandia Docket Sheet].

Ahmed Omar Abu Ali apparently was at one time a suspect in the paintball case. United States 

v. Abu Ali, 395 F. Supp. 2d 338, 356 (E.D. Va. 2005); see Isikoff, supra note 2041. Subsequently

he was tried for other crimes. See supra, A Plot to Kill President Bush. 2110. See Lichtblau, supra note 2105. 2111. 18 U.S.C. § 960.
National Security Case Management Studies (11/14/2011) 241

rule over Kashmir.2112 The trial showed that the men played paintball to prepare

for possible assistance to rebel forces in Chechnya.2113

Judge Brinkema tried four defendants in one bench trial,2114acquitting one on

February 20, 2004,2115and convicting three on March 4.2116 The convicted defendants were sentenced on June 15,2117 and they were resentenced on July 29, 2005,2118 in light of the intervening Supreme Court determination in United States 

v. Booker that federal sentencing guidelines are advisory.2119

Judge Brinkema convicted Masoud Ahmad Khan, a native-born American citizen of Pakistani descent residing in Gaithersburg, Maryland, of eight counts and

sentenced him to life in prison without the possibility of parole.2120 Khan spent

time at an LET training camp in Pakistan.2121 LET is the military wing of Markaz

Dawa Wa al Irshad, which was founded to organize Pakistani Muslims to conduct

violent jihad against Russians in Afghanistan.2122 Beginning in 1999, LET s primary focus was combating India s control in Kashmir.2123 But the court found that 

the defendants participation in the LET training camps was to prepare to fight

against the United States in Afghanistan on behalf of the Taliban.2124 At the training camp, Khan fired an AK-47 rifle, an antiaircraft gun, and a rocket-propelled 

grenade.2125 By December 2001, the United States had substantially defeated the

 2112. Khan, 461 F.3d at 484; Khan Habeas Relief Opinion, supra note 2105, at 2 3; see Lichtblau, supra note 2105; Markon, supra note 2105; Mary Beth Sheridan, Hardball Tactics in an Era of Threats, Wash. Post, Sept. 3, 2006, at A1.

The name of the group means army of the pure. Brendan Smith, Chandia Challenges Law on 

Terror Group, Legal Times, Oct. 29, 2007, at 10. It was designated a terrorist organization in 2001 

after a deadly attack on India s parliament building in New Delhi. Id.

2113. United States v. Khan, 309 F. Supp. 2d 789, 803 07 (E.D. Va. 2004); see also Lichtblau, 

supra note 2105. 2114. Khan, 461 F.3d at 485 86 & n.4; Khan, 309 F. Supp. 2d at 796; Khan Habeas Relief

Opinion, supra note 2105, at 3. 2115. Khan, 461 F.3d at 486; Khan, 309 F. Supp. 2d at 796; see Judge Acquits Muslim Accused of Taliban Ties, L.A. Times, Feb. 21, 2004, at 24 [hereinafter Judge Acquits].

2116. Khan, 461 F.3d at 486; Khan, 309 F. Supp. 2d at 796, 827; Khan Habeas Relief Opinion, supra note 2105, at 3 4. 2117. Royer Docket Sheet, supra note 2105; Khan Habeas Relief Opinion, supra note 2105, at

4; see Bradley, supra note 2107. 2118. Khan, 461 F.3d at 486; Royer Docket Sheet, supra note 2105; Khan Habeas Relief Opinion, supra note 2105, at 4. 2119. 543 U.S. 220 (2005) (decided Jan. 12, 2005).

2120. Khan, 461 F.3d at 486; Khan, 309 F. Supp. 2d at 796; Khan Habeas Relief Opinion, supra note 2105, at 4; see Bradley, supra note 2107; Sheridan, supra note 2112. 2121. Khan, 461 F.3d at 485; Khan, 309 F. Supp. 2d at 803, 807; Khan Habeas Relief Opinion, supra note 2105, at 25 ( During the several weeks he stayed in [LET] camps, [Khan] engaged in

paramilitary training and after returning to the United States he stayed in touch with an LET

operative and purchased military equipment for him. ). 2122. Khan, 461 F.3d at 484; Khan, 309 F. Supp. 2d at 806 07.

2123. Khan, 461 F.3d at 484; Khan, 309 F. Supp. 2d at 807; see Sheridan, supra note 2112. 2124. Khan, 309 F. Supp. 2d at 810.

2125. Khan, 461 F.3d at 485; Khan, 309 F. Supp. 2d at 811; Khan Habeas Relief Opinion, supra note 2105, at 27.
242 National Security Case Management Studies (11/14/2011)

Taliban2126and declared LET a terrorist organization.2127 Khan returned to the

United States that month.2128 After returning to the United States, Khan made a

ghost purchase of a robotic surveillance airplane on behalf of a prominent member of LET, who used the plane in Kashmir.2129 Judge Brinkema found Khan

guilty of conspiracy, conspiracy to levy war against the United States, conspiracy 

to contribute services to the Taliban, conspiracy to provide material support to

LET, conspiracy to possess and use firearms in connection with a crime of violence, and three counts of using and discharging a weapon in relation to a crime

of violence.2130 In 2011, on habeas corpus review, Judge Brinkema and the government agreed that one of the conspiracy convictions and sentences should be

vacated, but Khan remained sentenced to life in prison.2131

Judge Brinkema convicted Seifullah Chapman, a former Marine and police officer residing in Alexandria, Virginia, of five counts and sentenced him to 65

years in prison.2132 Chapman also spent time at the LET training camp in Pakistan.2133 In addition, Chapman purchased the video camera and transmitter for the

robot plane on behalf of the prominent LET member.2134 Judge Brinkema found

Chapman guilty of conspiracy, conspiracy to provide material support to LET, conspiracy to possess and use firearms in connection with a crime of violence, possession of firearms in furtherance of a crime of violence, and using and discharging a weapon in relation to a crime of violence.2135

Judge Brinkema convicted Hammad Abdur-Raheem, residing in Falls Church, 

Virginia, and formerly a soldier in the U.S. Army, of three counts and sentenced

 2126. Khan, 461 F.3d at 485; Khan, 309 F. Supp. 2d at 811.

2127. Khan, 309 F. Supp. 2d at 812; Khan Habeas Relief Opinion, supra note 2105, at 2. 2128. Khan, 461 F.3d at 485; Khan, 309 F. Supp. 2d at 811.

2129. Khan, 461 F.3d at 484; Khan, 309 F. Supp. 2d at 813 14; Khan Habeas Relief Opinion, supra note 2105, at 17; see United States v. Benkahla, 530 F.3d 300, 303 (4th Cir. 2008).

2130. Khan, 461 F.3d at 486; Khan, 309 F. Supp. 2d at 796, 818, 820, 821, 823, 826 27, 827;

Khan Habeas Relief Opinion, supra note 2105, at 4; Royer Docket Sheet, supra note 2105 (noting 

a court verdict against Masoud Ahmad Khan on Mar. 4, 2004).

2131. Khan Habeas Relief Opinion, supra note 2105, at 2, 31 & n.2, certificate of appealability denied, Opinion, Khan v. United States, No. 1:08-cv-533 (E.D. Va. Oct. 20, 2011), available at

2011 WL 5008572. 2132. Khan, 461 F.3d at 486; Khan, 309 F. Supp. 2d at 796, 803, 816; see Bradley, supra note 

2107; Markon, supra note 2107; Sheridan, supra note 2112. The original sentence of 85 years was 

reduced to 65 years on July 29, 2005. Royer Docket Sheet, supra note 2105 (July 29, 2005, minute 

entry).

2133. Khan, 461 F.3d at 484, 490; Khan, 309 F. Supp. 2d at 807, 811.

2134. Khan, 461 F.3d at 484, 489; Khan, 309 F. Supp. 2d at 812 13.

2135. Khan, 461 F.3d at 486; Khan, 309 F. Supp. 2d at 796, 818, 821, 823, 824, 826, 827;

Royer Docket Sheet, supra note 2105 (noting a court verdict against Seifullah Chapman on Mar. 4, 2004).

Chapman s petition for habeas corpus relief was unsuccessful. Opinion, United States v. Chapman, No. 10-6338 (4th Cir. Oct. 4, 2010); Royer Docket Sheet, supra note 2105 (noting Dec. 

23, 2009, dismissal of petition).
National Security Case Management Studies (11/14/2011) 243

him to four and one-third years in prison.2136 Judge Brinkema found Abdur- Raheem guilty of conspiracy, conspiracy to provide material support to LET, and

conspiracy to possess and use firearms in connection with a crime of violence.2137

Although the court of appeals reversed her downward departure from the sentencing guidelines and remanded for resentencing,2138 Judge Brinkema reimposed the

same 52-month sentence, determining that she had not clearly articulated her reasons for the downward departure the first time.2139 The government appealed

again,2140 but withdrew the appeal2141 in light of the Supreme Court s holding on

December 10, 2007, in Gall v. United States, that even sentences outside Sentencing Guidelines are reviewed for abuse of discretion.2142 Abdur-Raheem was released on November 30, 2007.2143

The court of appeals affirmed the convictions of Khan, Chapman, and Abdur- Raheem.2144

Judge Brinkema acquitted Caliph Basha Ibn Abdur-Raheem, of Arlington, Virginia.2145

Randall Todd Royer pleaded guilty and was sentenced on April 9, 2004, to 20

years in prison for using firearms and explosives in relation to a crime of violence.2146 In April 2000, Royer attended an LET training camp in Pakistan, where he fought on the front lines against India and he fired AK-47 and PK weapons.2147

 2136. Khan, 309 F. Supp. 2d at 796, 803, 814; see Bradley, supra note 2107. The original sentence of eight years was reduced to four and one-third years on July 29, 2005. Royer Docket Sheet, 

supra note 2105 (July 29, 2005, minute entry).

2137. Khan, 461 F.3d at 486; Khan, 309 F. Supp. 2d at 796, 818, 821, 823, 827; Royer Docket 

Sheet, supra note 2105 (noting a court verdict against Hammad Abdur-Raheem on Mar. 4, 2004).

2138. Khan, 461 F.3d at 483, 498 501; see Jerry Markon, Resentencing Is Ordered for Jihad Defendant, Wash. Post, Sept. 2, 2006, at B5.

2139. Transcript, United States v. Royer, No. 1:03-cr-296 (E.D. Va. Aug. 16, 2007, filed Aug. 14, 2006) [hereinafter Royer Aug. 16, 2007, Transcript]; Royer Docket Sheet, supra note 2105

(noting resentencing on Aug. 16, 2007). Resentencing was delayed by a petition to the Supreme

Court for certiorari, which the Court denied on May 21, 2007. Chapman v. United States, 550 U.S. 

956 (2007).

2140. Docket Sheet, United States v. Abdur-Raheem, No. 07-4941 (4th Cir. Oct. 2, 2007).

2141. Government Motion to Dismiss, id. (Dec. 18, 2007).

2142. Gall v. United States, 552 U.S. 38 (2007).

2143. http://www.bop.gov (reg. no. 46814-083); see Royer Aug. 16, 2007, Transcript, supra

note 2139 (noting expected release date of Dec. 1, 2007).

2144. United States v. Khan, 461 F.3d 477 (4th Cir. 2006); see Markon, supra note 2138; Sheridan, supra note 2112. The Supreme Court denied petitions for certiorari on May 21, 2007. Chapman v. United States, 550 U.S. 956 (2007); Khan v. United States, 550 U.S. 956 (2007).

2145. Khan, 461 F.3d at 486; United States v. Khan, 309 F. Supp. 2d 789, 796 (E.D. Va. 2004); see Judge Acquits, supra note 2115. 2146. Khan, 461 F.3d at 485; Royer Docket Sheet, supra note 2105; see Sheridan, supra note 

2112. 2147. Khan, 309 F. Supp. 2d at 796, 808.
244 National Security Case Management Studies (11/14/2011)

Ibrahim Ahmed al-Hamdi, the son of a Yemeni diplomat, pleaded guilty and

was sentenced on April 9, 2004, to 15 years in prison.2148 Al-Hamdi attended an

LET training camp in Pakistan.2149

Yong Ki Kwon, who resided in Fairfax, Virginia, pleaded guilty and was sentenced on November 7, 2003, to 11 and one-half years in prison.2150 After Kwon

cooperated with the government, his sentence was reduced to three years and two

months.2151 He is now out of prison.2152 Kwon attended an LET training camp in

Pakistan, where he fired an AK-47 and a rocket-propelled grenade.2153

Khwaja Mahmood Hasan, of Fairfax, Virginia, pleaded guilty and was sentenced on November 7, 2003, to 11 and one-quarter years in prison.2154 After Hasan cooperated with the government, his sentence was reduced to three years and

one month.2155 He is now out of prison.2156 Hasan attended an LET training camp

in Pakistan, where he fired an AK-47 and a rocket-propelled grenade.2157

Muhammed Aatique, of Norristown, Pennsylvania, pleaded guilty and was

sentenced on September 22, 2003, to 10 and one-half years in prison.2158 After he

cooperated with the government, his sentence was reduced to three years and two

months.2159 He was released from prison on March 31, 2006.2160

Donald Thomas Surratt II, a former Marine Corps instructor residing in Maryland, pleaded guilty and was sentenced on November 7, 2003, to three years and

ten months in prison.2161 After he cooperated with the government, his sentence

was reduced to one year and 11 months.2162 He was released from prison on February 14, 2006.2163

 2148. Khan, 461 F.3d at 485; Khan, 309 F. Supp. 2d at 796, 808; Royer Docket Sheet, supra 

note 2105; see Sheridan, supra note 2112. 2149. Khan, 309 F. Supp. 2d at 807, 811.

2150. Khan, 461 F.3d at 485; Khan, 309 F. Supp. 2d at 796.

2151. Royer Aug. 16, 2007, Transcript, supra note 2139; Royer Docket Sheet, supra note 2105

(noting a reduction-of-sentence order on Feb. 24, 2006); see Sheridan, supra note 2112. 2152. See Viorst, supra note 2105, at 77.

2153. Khan, 309 F. Supp. 2d at 811.

2154. Khan, 461 F.3d at 485; Khan, 309 F. Supp. 2d at 796, 803; Royer Docket Sheet, supra 

note 2105. 2155. Royer Aug. 16, 2007, Transcript, supra note 2139; Royer Docket Sheet, supra note 2105

(noting a reduction-of-sentence order on Feb. 24, 2006).

2156. See Viorst, supra note 2105, at 77; see also Sheridan, supra note 2112 (reporting that

Hasan spent less than three years in jail).

2157. Khan, 309 F. Supp. 2d at 811.

2158. Khan, 461 F.3d at 485; Khan, 309 F. Supp. 2d at 796; Royer Docket Sheet, supra note 

2105. 2159. Royer Aug. 16, 2007, Transcript, supra note 2139; Royer Docket Sheet, supra note 2105

(Aug. 26, 2005, reduction of sentence for Muhammed Aatique); see Sheridan, supra note 2112. 2160. http://www.bop.gov (reg. no. 57593-066).

2161. Khan, 461 F.3d at 485; Khan, 309 F. Supp. 2d at 796, 803; Royer Docket Sheet, supra 

note 2105; see Sheridan, supra note 2112. 2162. Royer Aug. 16, 2007, Transcript, supra note 2139. 2163. http://www.bop.gov (reg. no. 46809-083).
National Security Case Management Studies (11/14/2011) 245

Judge Brinkema also acquitted Sabri Benkahla on March 9, 2004, in a separate bench trial.2164 Benkahla was arrested in Saudi Arabia in 2003 and charged

with supplying services to the Taliban during a 1999 trip to south Asia.2165 Judge 

Brinkema found that Benkahla attended an LET training camp, but the government did not prove that he did so at a time when LET was designated a terrorist

organization or at a place in Afghanistan under Taliban control, as alleged in the

indictment.2166 After his acquittal, Benkahla was interviewed by the FBI twice

on April 22 and on July 7 and called to testify before a grand jury twice on 

August 26 and on November 16 all in 2004.2167 His Fifth Amendment right not

to testify was removed by a grant of use immunity, which would prevent the government from prosecuting him for truthful revelations.2168 He denied attending

any training camp, and he denied using any firearms.2169 On February 9, 2006, he

was indicted for perjury during his grand jury testimony and for obstruction of

justice.2170 On July 13, the indictment was expanded to charge him for false

statements to the FBI.2171 The court assigned Benkahla s perjury case to Judge

James C. Cacheris,2172who told the jury at various times during the trial that it

was a perjury case, not a terrorism case, that they were deciding.2173 The jury

 2164. United States v. Benkahla, 530 F.3d 300, 303 04 (4th Cir. 2008); Khan, 461 F.3d at

485; United States v. Benkahla, 437 F. Supp. 2d 541, 544 46 (E.D. Va. 2006); Khan, 309 F. Supp. 

2d at 796 n.2; Khan Habeas Relief Opinion, supra note 2105, at 3 n.2; Royer Docket Sheet, supra 

note 2105; see Matthew Barakat, Va. Man Convicted of Lying in Terror Probe, Richmond Times

Dispatch, Feb. 6, 2007, at B2.

2165. Benkahla, 530 F.3d at 304; Benkahla, 437 F. Supp. 2d at 544 45.

2166. Benkahla, 530 F.3d at 304; Benkahla, 437 F. Supp. 2d at 545 46; see Matthew Barakat, Jihadist Suspect on Trial, Richmond Times Dispatch, Jan. 30, 2007, at B2 [hereinafter Jihadist 

Suspect]; Barakat, supra note 2164. 2167. Benkahla, 530 F.3d at 303; United States v. Benkahla, 501 F. Supp. 2d 748, 750 51 

(E.D. Va. 2007); Opinion at 1 3, United States v. Benkahla, No. 1:06-cr-9 (E.D. Va. Oct. 2, 2006) 

[hereinafter Benkahla Dismissal Denial], available at 2006 WL 2871234; see Barakat, Jihadist 

Suspect, supra note 2166. 2168. Benkahla, 530 F.3d at 304; Benkahla, 437 F. Supp. 2d at 544 n.1 & 555; Benkahla, 501

F. Supp. 2d at 750 n.1; see Barakat, supra note 2164. 2169. Benkahla, 530 F.3d at 304 05; Habeas Denial Opinion at 2 3, Benkahla, No. 1:06-cr-9 

(E.D. Va. July 8, 2010) [hereinafter Benkahla Habeas Denial Opinion], available at 2010 WL

2721384, appeal dismissed, 420 F. App x 275 (4th Cir. 2011); Benkahla, 437 F. Supp. 2d at 544

45; see Barakat, supra note 2164. 2170. Benkahla, 530 F.3d at 305; Benkahla, 437 F. Supp. 2d at 544; Docket Sheet, Benkahla, No. 1:06-cr-9 (E.D. Va. Feb. 9, 2006) [hereinafter Benkahla Docket Sheet]; see Jerry Markon, Va. 

Jihad Probe Sees New Charge, Wash. Post, Fe. 23, 2006, at B4.

2171. Benkahla, 530 F.3d at 305; Benkahla Habeas Denial Opinion, supra note 2169, at 3;

Benkahla Dismissal Denial, supra note 2167, at 1, 3 4; Benkahla Docket Sheet, supra note 2170. 2172. Tim Reagan interviewed Judge Cacheris for this report in the judge s chambers on November 6, 2008.

2173. Interview with Hon. James C. Cacheris, Nov. 6, 2008; see James C. Cacheris, United 

States v. Benkhala: Voir Dire Questions (Jan. 25, 2007).
246 National Security Case Management Studies (11/14/2011)

found Benkahla guilty on February 5, 2007; Judge Cacheris sentenced him on July 24 to ten years and one month in prison.2174 The court of appeals affirmed.2175

On the one hand, there is some potential for abuse in the government s procedure of acquittal, questioning on matters related to the acquittal, and second prosecution for some

form of perjury. . . . [P]rosecutors frustrated at an acquittal should not lightly be able to

take a second bite at the apple by bringing perjury charges afterwards. . . . On the other hand, a defendant does not win with acquittal a license to commit perjury.2176 Ali al-Timimi was regarded as the paintballers spiritual leader.2177 He was a

cofounder of a Muslim center in Falls Church called the Dar Al-Arqam Center, where many of the paintballers met each other.2178 He was sentenced in 2005 to

life in prison on an April 26, 2005, conviction of soliciting others to wage war

against the United States and providing services to the Taliban.2179 His appeal to

the U.S. Court of Appeals for the Fourth Circuit was interrupted by a remand to

the district court on April 25, 2006, for a determination of whether the prosecution of al-Timimi relied on undisclosed surveillance.2180

Al-Timimi was born in the United States to Iraqi immigrants.2181 His father 

was a lawyer who worked in Iraq s embassy and his mother was a clinical psychologist.2182 When al-Timimi was a teenager, his family spent some time in Saudi Arabia, where al-Timimi adopted a fundamentalist Salafiya approach to Is-

 2174. Benkahla, 530 F.3d at 305 06; Benkahla Habeas Denial Opinion, supra note 2169, at 6;

United States v. Benkahla, 501 F. Supp. 2d 748, 751, 762 (E.D. Va. 2007); Benkahla Docket 

Sheet, supra note 2170; see Barakat, supra note 2164; Jerry Markon, 10-Year Sentence for Perjury, Wash. Post, July 25, 2007, at B5.

2175. Benkahla, 530 F.3d 300, cert. denied, ___ U.S. ___, 129 S. Ct. 950 (2009).

2176. Benkahla, 530 F.3d at 306; see id. at 308 ( the investigations in which Benkahla was interviewed and the questions he was asked show no sign of having been manufactured for the sake

of a second prosecution ). 2177. See Markon, Case Hailed, supra note 2107; Markon, supra note 2105; Viorst, supra 

note 2105, at 69, 79.

2178. United States v. Chandia, 514 F.3d 365, 369 (4th Cir. 2008); Benkahla Habeas Denial

Opinion, supra note 2169, at 1; United States v. Khan, 309 F. Supp. 2d 789, 802 (E.D. Va. 2004).

2179. Chandia, 514 F.3d at 369 n.1; see Markon, Case Hailed, supra note 2107; Markon, supra note 2105; Viorst, supra note 2105, at 78; see also Khan, 309 F. Supp. 2d at 821 ( As we have

found, the government s evidence established beyond a reasonable doubt that on September 16, 2001, Ali Al-Timimi urged the attendees at the meeting at Kwon s house to heed the call of Mullah Omar for all Muslims to help defend the Taliban. ); Donahue, supra note 636, at 168 ( Dr. Ali

al-Timimi was sentenced to life in prison for urging young men at a dinner party to go on jihad. ). To select jurors for his trial, Judge Brinkema used a jury questionnaire. See Leonie M. Brinkema, United States v. Al-Timimi: Jury Questionnaire (Mar. 28, 2005).

2180. Order, United States v. Al-Timimi, No. 05-4761 (4th Cir. Apr. 25, 2006) [hereinafter Al- Timimi Remand Order]; Transcript, United States v. Al-Timimi, No. 1:04-cr-385 (E.D. Va. Jan. 16, 2007, filed May 17, 2007) [hereinafter Al-Timimi Jan. 16, 2007, Transcript]; see Al-Timimi

Docket Sheet, supra note 2108 (noting May 19, 2006, reopening of the district court case); see 

also Jerry Markon, Va. Terror Case Sent Back to Lower Court, Wash. Post, Apr. 26, 2006, at A10.

2181. See Viorst, supra note 2105, at 69.

2182. See Sheridan, supra note 2112; Viorst, supra note 2105, at 69.
National Security Case Management Studies (11/14/2011) 247

lam.2183 A graduate of the University of Maryland, he matriculated at George Mason University for a doctorate in computational biology.2184

On June 6, 2006, a jury convicted Ali Asad Chandia, a former personal assistant to al-Timimi, of aiding LET by supplying them with paintballs and other 

equipment.2185 Judge Hilton sentenced him to 15 years in prison on August 25, 2006, applying a terrorism sentencing enhancement.2186 The government filed a

sealed motion, and Judge Brinkema filed a sealed order that same day in this

case.2187 On January 23, 2008, the court of appeals remanded the case for resentencing, because Judge Hilton had not supported the enhancement with a finding

of specific intent.2188 On May 2, 2008, Judge Hilton again sentenced Chandia to

15 years in prison,2189 and the court of appeals again remanded for more factfinding.2190 A third sentencing to 15 years2191 is on appeal.2192 Chandia is a Pakistani

citizen who taught third grade at an Islamic school called the Al-Huda School in

College Park, Maryland.2193 Although linked to the paintballers, he did not actually play the game.2194

Challenge: Classified Evidence

Approximately three months before the beginning of his trial, al-Timimi filed a

sealed motion, and then he moved under the Classified Information Procedures

Act (CIPA) to use classified information.2195 Judge Brinkema conducted a sealed

 2183. See Sheridan, supra note 2112; Viorst, supra note 2105, at 72.

2184. See Viorst, supra note 2105, at 73.

2185. United States v. Chandia, 514 F.3d 365, 370 (4th Cir. 2008); see Matthew Barakat, Teacher Convicted of Aiding Terror Group, Cincinnati Post, June 7, 2006, at A9; Jerry Markon, Final Defendant Guilty in Va. Jihad, Wash. Post, June 7, 2006, at A12 [hereinafter Final Defendant]; Markon, supra note 2107; Markon, supra note 2105; Sheridan, supra note 2112; Smith, supra note 2112 ( Chandia provided material support to LET by paying $622 to ship 50,000 

paintballs to Pakistan. ). 2186. Chandia, 514 F.3d at 370 71; Chandia Docket Sheet, supra note 2109; see Markon, supra note 2105. 2187. Chandia Docket Sheet, supra note 2109. 2188. Chandia, 514 F.3d at 369, 375 77.

2189. Chandia Docket Sheet, supra note 2109. 2190. United States v. Chandia, 395 F. App x 53 (4th Cir. 2010). 2191. Chandia Docket Sheet, supra note 2109 (noting sentencing on Mar. 14, 2011).

2192. Docket Sheet, United States v. Chandia, No. 11-4323 (4th Cir. Mar. 24, 2011) (noting

that oral argument is tentatively scheduled for the week of Jan. 24 27, 2012).

2193. See Barakat, supra note 2185; Corrections, Wash. Post, May 26, 2006, at A2; Markon, 

Final Defendant, supra note 2185; Jerry Markon & Mary Beth Sheridan, Jurors Hear Clashing

Profiles of Accused Jihad Network Member, Wash. Post, May 23, 2006, at B6; Sheridan, supra 

note 2112. 2194. United States v. Chandia, 514 F.3d 365, 373 (4th Cir. 2008); see Barakat, supra note 

2185. 2195. Al-Timimi Docket Sheet, supra note 2108 (noting the filing of a sealed motion on Dec. 23, 2004, and the filing of a CIPA notice on Dec. 29, 2004.); see Reagan, supra note 173, at 8 18 

(describing CIPA procedures).
248 National Security Case Management Studies (11/14/2011)

CIPA hearing on January 19, 2005, and issued a sealed protective order on March, 

21, 2005, ten days before the commencement of voir dire.2196

According to the remand order in al-Timimi s appeal, The motion to vacate

and to remand raises appellant s concern, based on recent developments, that the

government may have undisclosed intercepts of either the appellant or various

individuals material to his trial. 2197

A problem that developed for the court in determining whether all discoverable information had been disclosed to al-Timimi s attorneys was the fact that the

attorneys representing the government in the case did not necessarily have access

to all of the information.2198

Challenge: Closed Proceedings

On July 21, 2006, Judge Brinkema conducted a closed hearing on administrative

motions in al-Timimi s remand, but the transcript of the hearing was unsealed the

following month after a classification review.2199 Another sealed proceeding was 

held on January 16, 2007, and its transcript was unsealed seven months later.2200

The transcript of a closed proceeding held on October 23, 2008, was unsealed only seven days after the event.2201 The transcript of a closed February 19, 2009, proceeding2202 was never unsealed, because no one ordered it.2203

The presence of al-Timimi in court sometimes necessitated cryptic dialogue. On one occasion, for example, Judge Brinkema, observed, I want to try to do this

hearing as much as possible with Mr. Timimi present, because obviously, it s his

case, and he has a right to be present as much as possible, so we may have to talk

elliptically, all right? 2204

 2196. Id. 2197. Al-Timimi Remand Order, supra note 2180, at 1; see Al-Timimi Docket Sheet, supra

note 2108 (referring to warrants under the Foreign Intelligence Surveillance Act).

2198. Transcript, United States v. Al-Timimi, No. 1:04-cr-385 (E.D. Va. July 21, 2006, filed

July 24, 2006) [hereinafter Al-Timimi July 21, 2006, Transcript].

2199. Al-Timimi Docket Sheet, supra note 2108 (noting the unsealing of the transcript on Aug. 14, 2006); see Matthew Barakat, Eavesdropping Did Not Taint Case, Richmond Times Dispatch, 

July 22, 2006, at B8. 

Appearing at the hearing were four attorneys and a special agent for the government and one

attorney for al-Timimi. Al-Timimi July 21, 2006, Transcript, supra note 2198. Al-Timimi s attorney s secret clearance was signed an hour before the hearing. Id. Waiting in the hall was a second

al-Timimi attorney, who had not yet received his clearance. Id.

2200. Al-Timimi Jan. 16, 2007, Transcript, supra note 2180; Al-Timimi Docket Sheet, supra

note 2108 (noting the unsealing of the transcript on Aug. 16, 2007).

By the time of this hearing, both defense attorneys had obtained secret clearances. Al-Timimi 

Jan. 16, 2007, Transcript, supra note 2180. 2201. Al-Timimi Docket Sheet, supra note 2108. 2202. Id.

2203. E-mail interview with court reporter, July 16, 2010.

2204. Transcript, United States v. Al-Timimi, No. 1:04-cr-385 (E.D. Va. Oct. 23, 2008, filed

Oct. 30, 2008).
National Security Case Management Studies (11/14/2011) 249

Challenge: Classified Arguments

On November 7, 2007, in al-Timimi s case, the government filed a Classified

Supplemenal Memorandum in Support of Government s Response to Defendant s

Post-Remand Motions Concerning Surveillance by the National Security Agency. 2205 A subsequent open hearing revealed that the government made classified 

submissions and appearances to which neither prosecuting nor defense attorneys

had access.2206 Judge Brinkema ordered the government to grant attorneys in the

case and her law clerk clearance to examine at least some of the secret submissions.2207

On October 10, 2008, al-Timimi filed with the classified information security

officer a sealed motion for a finding of materiality.2208

Challenge: Attorney Client Contacts

The court of appeals noted in its Al-Timimi remand order that appellant has also

raised questions relating to alleged violations of attorney client communications

and access to evidence claimed as classified by the government. 2209

According to al-Timimi s attorney, the Bureau of Prisons opened al-Timimi s

clearly labeled attorney client mail and transferred al-Timimi so frequently from

prison to prison that it was difficult for his attorneys to know where he was and

make arrangements to see him.2210 Judge Brinkema ordered al-Timimi returned to

the Eastern District of Virginia.2211

Challenge: Religious Accommodation

Judge Brinkema is concerned about possible bias against witnesses depending

upon whether they swear on a Bible or a Quran before they offer testimony to a

jury.2212 Therefore, Judge Brinkema now takes testimony in all cases from all witnesses by affirmation rather than by oath.2213

 2205. Al-Timimi Docket Sheet, supra note 2108. 2206. See Eric Lichtblau, Wiretap Issue Leads Judge to Warn of Retrial in Terror Case, N.Y. Times, Nov. 21, 2007, at A18; Jerry Markon, Government Secrecy May Lead to New Trial in Va. Terrorism Case, Wash. Post, Nov. 21, 2007, at A8.

2207. See Lichtblau, supra note 2206; Markon, supra note 2206. 2208. E.D. Va. Al-Timimi Docket Sheet, supra note 2108. 2209. Al-Timimi Remand Order, supra note 2180, at 1.

It was reported that authorities obstructed visits between al-Timimi and his appellate attorney. Viorst, supra note 2105, at 78.

2210. Al-Timimi July 21, 2006, Transcript, supra note 2198. 2211. Al-Timimi Docket Sheet, supra note 2108; Al-Timimi July 21, 2006, Transcript, supra 

note 2198. 2212. Interview with Hon. Leonie M. Brinkema, Jan. 5, 2007.

2213. Id.
250 National Security Case Management Studies (11/14/2011)

Minneapolis

United States v. Warsame

(John R. Tunheim, D. Minn.)

On December 8, 2003, the FBI interviewed Mohamed Abdullah Warsame, a Canadian citizen born in Mogadishu, Somalia, and studying at Minneapolis Community and Technical College as a permanent U.S. resident.2214 He lived in Minneapolis with his wife, a naturalized U.S. citizen, and their daughter.2215 The interview was prompted by information obtained by secretly monitoring Warsame s

telecommunications and searching his home.2216 On the following day, Warsame

was arrested as a material witness in a Southern District of New York grand jury

investigation.2217

FBI agents approached Warsame s home on December 8 at a time they knew

he would be alone.2218 Warsame invited the agents in.2219 The agents told Warsame that he was on a terrorist watch list and that an inteview would enable them

to take him off the list.2220 During the interview, Warsame first denied having visited Pakistan and Afghanistan, but then admitted he had when he learned that the 

agents already knew it.2221

In early 2000, Warsame illegally entered Afghanistan from Pakistan to attend

an Al-Qaeda training camp near Kabul.2222 That summer, Warsame trained at

another Al-Qaeda training camp, in Kandahar, which was led by Osama Bin Laden.2223 In 2001, Warsame returned to the United States, maintaining communication and financial contacts with Al-Qaeda.2224

 2214. United States v. Warsame, 488 F. Supp. 2d 846, 849 50 (D. Minn. 2007); see Pam 

Louwagie, Warsame, Al-Qaida Link Detailed, Minneapolis St. Paul Star Trib., Feb. 10, 2004, at

1A; Howie Padilla, Pam Louwagie & Greg Gordon, Al-Qaida Suspect Identified, Minneapolis St. 

Paul Star Trib., Dec. 12, 2003, at 1A (noting that the Twin Cities area has one of the largest Somali communities in the U.S.); Susan Schmidt, Canadian Held for Alleged Al Qaeda Ties, Wash. Post, Jan. 22, 2004, at A3.

2215. Warsame, 488 F. Supp. at 849; see Todd Nelson, Suspect Faces N.Y. Extradition, St. Paul Pioneer Press, Dec. 13, 2003, at A1.

2216. Warsame, 488 F. Supp. at 850; see Pam Louwagie, Terror Suspect s Case Debated in U.S. District Court, Minneapolis St. Paul Star Trib., Nov. 16, 2005, at 1B.

2217. Warsame, 488 F. Supp. at 854; see Greg Gordon & Howie Padilla, Al-Qaida Associate

Held in Hennepin County Jail, Minneapolis St. Paul Star Trib., Dec. 10, 2003, at 1A; Pam Louwagie & Howie Padilla, Student Accused of Link to Al-Qaida, Minneapolis St. Paul Star Trib., Jan. 22, 2004, at 1A; Schmidt, supra note 2214. 2218. Warsame, 488 F. Supp. at 850.

2219. Id.

2220. Interview with Hon. John R. Tunheim, Aug. 18, 2009.

2221. Warsame, 488 F. Supp. at 851; see Bob von Sternberg, Warsame s Statements Suppressed, Minneapolis St. Paul Star Trib., June 1, 2007, at 4B.

2222. United States v. Warsame, 651 F. Supp. 2d 978, 979 (D. Minn. 2009) (quoting plea

agreement).

2223. Id. at 980.

2224. Id.
National Security Case Management Studies (11/14/2011) 251

After substantial questioning during the December 2003 interview, the FBI 

agents asked Warsame to pack a bag and accompany them to a more secure location.2225 Warsame consented.2226 The agents drove Warsame to Camp Ripley, an

Army National Guard military base in Little Falls, Minnesota, but they did not

disclose to Warsame where they were taking him.2227 After a night s sleep on the

base, Warsame said that he wanted to go home.2228 For that reason, and because

the several hours of questioning that day were immediately followed by an arrest, Judge John R. Tunheim, on May 31, 2007, suppressed fruits of that day s interview.2229

On the day of his arrest, Warsame appeared before Magistrate Judge Earl

Cudd at a closed proceeding, and his name was not reported publicly until a

couple of days later.2230 It was subsequently reported that Warsame s public identification thwarted the government s intentions to use him as an informant.2231 At 

another closed proceeding, on December 16, 2003, the government received permission to transfer Warsame to Manhattan for grand jury testimony.2232

A Minnesota grand jury indicted Warsame on January 20, 2004, for providing

material support to Al-Qaeda by attending training camps in Afghanistan.2233

Warsame returned to Minnesota on the following day.2234 The court assigned the

case to Judge Tunheim.2235 A superseding indictment was filed about a year and a

 2225. Warsame, 488 F. Supp. at 851.

2226. United States v. Warsame, 547 F. Supp. 2d 982, 984 (D. Minn. 2008); Warsame, 488 F. Supp. at 851.

2227. Warsame, 488 F. Supp. at 850 51; see Von Sternberg, supra note 2221. 2228. Warsame, 488 F. Supp. at 853.

2229. Id. at 861; see Von Sternberg, supra note 2221. 2230. See Gordon & Padilla, supra note 2217; Padilla et al., supra note 2214. 2231. Greg Gordon, FBI Hoped Warsame Would Act as Spy, Minneapolis St. Paul Star Trib., Feb. 14, 2004, at 1B; Schmidt, supra note 2214. 2232. See Pam Louwagie, Balancing Security and Freedom, Minneapolis St. Paul Star Trib., Jan. 5, 2004, at 1A; Pam Louwagie, Howie Padilla & Margaret Zack, Jailed Student Headed to

N.Y., Minneapolis St. Paul Star Trib., Dec. 17, 2003, at 1B; Todd Nelson, Extradition to New

York Approved for Warsame, St. Paul Pioneer Press, Dec. 17, 2003, at B3.

2233. United States v. Warsame, 651 F. Supp. 2d 978, 979 (D. Minn. 2009); Docket Sheet, United States v. Warsame, No. 0:04-cr-29 (D. Minn. Jan. 20, 2004) [hereinafter D. Minn. Docket

Sheet]; see Bill Gardner, Student Indicted in Terror Probe, St. Paul Pioneer Press, Jan. 22, 2004, at A1; Eric Lichtblau, Terror Indictment, N.Y. Times, Jan. 22, 2004, at A16; Louwagie, supra

note 2214; Louwagie & Padilla, supra note 2217; Schmidt, supra note 2214. 2234. See Schmidt, supra note 2214. 2235. D. Minn. Docket Sheet, supra note 2233. Tim Reagan interviewed Judge Tunheim for this report at the Federal Judicial Center on August 18, 2009.
252 National Security Case Management Studies (11/14/2011)

half later.2236 Warsame s attorneys claimed that he went to Afghanistan in search

of Muslim utopia, but he left after becoming disillusioned.2237

The government appealed Judge Tunheim s suppression order, and the court

of appeals heard arguments on March 13, 2008.2238 The case could not be brought

to trial while the appeal was pending.2239

Midway through his sixth year of detention, Warsame and the government

agreed to a plea bargain.2240 On July 9, 2009, Judge Tunheim sentenced Warsame

to seven years and eight months and signed a stipulated deportation order.2241

Warsame was released from prison on October 8, 2010, and released into

Canada.2242

Challenge: Mental Health During Detention

Detention of terrorism suspects frequently amounts to solitary confinement.2243

Concerned about the defendant s mental health, Judge Tunheim encouraged Warsame s attendance at proceedings to afford him time outside his cell and in the

presence of other people under secure conditions.2244 Judge Tunheim observed

that visits by the Canadian consulate were also helpful.2245

Challenge: Attorney Client Contacts

For over a month, between Warsame s extradition to New York and a couple of

weeks after his indictment, contact between Warsame and his attorneys was prevented by the government s insistence on conditions to which the attorneys could

 2236. Warsame, 651 F. Supp. 2d at 979; D. Minn. Docket Sheet, supra note 2233; United 

States v. Warsame, 537 F. Supp. 2d 1005, 1009 (D. Minn. 2008); see Pam Louwagie, Charges 

Added for Terror Suspect, Minneapolis St. Paul Star Trib., June 23, 2005, at 1A; Beth Silver, New 

Charges Filed in Al-Qaida Case, St. Paul Pioneer Press, June 23, 2005, at B3.

2237. See Pam Louwagie, Terror Suspect s Case Questioned, Minneapolis St. Paul Star Trib., Aug. 29, 2005, at 1B.

2238. Docket Sheet, United States v. Warsame, No. 07-2560 (8th Cir. June 29, 2007).

2239. Interview with Hon. John R. Tunheim, Aug. 18, 2009.

2240. Warsame, 651 F. Supp. 2d at 979; see Pam Louwagie, Terror Suspect Pleads Guilty, Minneapolis St. Paul Star Trib., May 21, 2009, at 1B.

2241. Warsame, 651 F. Supp. 2d 978 (sentencing judgment); Order for Removal, United States 

v. Warsame, No. 0:04-cr-29 (D. Minn. July 9, 2009); Transcript, id. (July 9, 2009, filed Aug. 10, 2009).

In light of the plea bargain, the court of appeals dismissed the government s pending suppression appeal. Judgment, Warsame, No. 07-2560 (8th Cir. Aug. 12, 2009).

2242. http://www.bop.gov (reg. no. 11355-041); see Sandro Contenta, Terrorist Supporter Might Make Toronto His Home, Toronto Star, Oct. 10, 2010, at A6.

2243. Interview with Hon. John R. Tunheim, Aug. 18, 2009; see Contenta, supra note 2242

( Warsame spent 51⁄2 years in solitary confinement during pre-trial custody. He was let out of his

cell only one hour a day. ). 2244. Interview with Hon. John R. Tunheim, Aug. 18, 2009; see Atul Gawande, Hellhole, New Yorker, Mar. 30, 2009, at 36 (describing mental health deterioration resulting from solitary

confinement).

2245. Interview with Hon. John R. Tunheim, Aug. 18, 2009.
National Security Case Management Studies (11/14/2011) 253

not agree.2246 Warsame was represented by the Federal Public Defender s office, and the problematic restrictions would have curtailed who in the office could

communicate with Warsame.2247 In time, attorneys for both sides were able to

strike an agreement.2248

Challenge: Classified Evidence

The case against Warsame relied on classified evidence, and in addition a substantial amount of classified information was discoverable.2249 Warsame s attorneys and Judge Tunheim s staff all obtained security clearances.2250 A protective

order governed defense handling of classified materials.2251 Judge Tunheim decided to preside over pretrial matters rather than refer them to a magistrate judge

to spare another chambers having to obtain security clearances.2252

Supporters of Warsame thought that retained counsel would provide better representation than the federal defender s office, so they hired a law professor in

Chicago to represent him.2253 But because the professor could not identify local

counsel likely to obtain a security clearance, Judge Tunheim continued the appointment of the federal defender s office as second counsel.2254

Early in the case, the government produced to defense counsel discoverable 

classified evidence, and Warsame s attorneys had to review the classified material 

in a secure room at the courthouse, which included a safe suitable for storing classified materials.2255 The attorneys had to prepare any documents based on or referring to classified material in the secure room.2256 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.2257 Judge Tunheim could keep classified materials in a safe in his chambers office.2258

 2246. See Lisa Donovan, Civil Rights, Terror on Trial, St. Paul Pioneer Press, Feb. 9, 2004, at

B1 [hereinafter Civil Rights]; Lisa Donovan, Warsame Has First Hearing in Open Courtroom, St. Paul Pioneer Press, Feb. 3, 2004, at B2.

2247. See Pam Louwagie, Feds Want Restrictions in Terror Case, Minneapolis St. Paul Star

Trib., Feb. 3, 2004, at 1B.

2248. Interview with Hon. John R. Tunheim, Aug. 18, 2009; see Donovan, Civil Rights, supra

note 2246; Lisa Donovan, Warsame s Attorneys, Prosecutors Strike Deal, St. Paul Pioneer Press, Feb. 5, 2004, at B4; Pam Louwagie, Warsame, Lawyer Will Be Allowed to Confer on Case, Minneapolis St. Paul Star Trib., Feb. 5, 2004, at 3B.

2249. Interview with Hon. John R. Tunheim, Aug. 18, 2009.

2250. Id.

2251. Protective Order, United States v. Warsame, No. 0:04-cr-29 (D. Minn. Mar. 8, 2005).

2252. Interview with Hon. John R. Tunheim, Aug. 18, 2009.

2253. Id.

2254. Id.

2255. Id.; see Louwagie, supra note 2237. 2256. Interview with Hon. John R. Tunheim, Aug. 18, 2009; see Louwagie, supra note 2237. 2257. Interview with Hon. John R. Tunheim, Aug. 18, 2009.

2258. Id.
254 National Security Case Management Studies (11/14/2011)

Later in the case, the government s presentation of classified evidence was

mostly to Judge Tunheim for his approval of what could be presented at trial.2259

Some information the government was willing to declassify, and for other information the government proposed unclassified substitutions modifications to the

evidence intended to redact classified information while retaining evidentiary value.2260 Judge Tunheim compared all proposed substitutions with their corresponding originals and frequently asked for modifications.2261 On reflection, Judge

Tunheim thinks it would have been better for him to keep the originals for possible later reference rather than let the government retrieve them.2262 As a result of

this process, Warsame s attorneys saw only declassified evidence or unclassified

substitutions.2263

Challenge: FISA Evidence

Some evidence against Warsame was obtained as a result of warrants granted pursuant to the Foreign Intelligence Surveillance Act (FISA).2264 The FISA court issued secret warrants for surveillance of persons with whom Warsame was communicating, and later approved a tap of Warsame s telephone and a physical

search of his apartment.2265 The government notified Warsame that it intended to

use some of this evidence against him at trial.2266

In camera, Judge Tunheim conducted an ex parte comprehensive and careful

review of the FISA applications, orders, and other related materials, reviewing

probable cause determinations de novo, and he determined that FISA procedures

were followed properly.2267

 2259. Id.

2260. Id.; Substitution Protective Order 3, United States v. Warsame, No. 0:04-cr-29 (D. Minn. 

July 9, 2009) (approving specific unclassified substitutions as providing the defendant with substantially the same ability to make his defense as would disclosure of the specific classified information); Substitution Protective Order 2, id. (Oct. 3, 2008) (same); Substitution Protective Order

1, id. (Mar. 8, 2005) (same).

2261. Interview with Hon. John R. Tunheim, Aug. 18, 2009.

2262. Id.

2263. Id.

2264. United States v. Warsame, 547 F. Supp. 2d 982, 984 85 (D. Minn. 2008); see United 

States v. Warsame, 488 F. Supp. 2d 846, 850 n.1 (D. Minn. 2007); Pam Louwagie, Eavesdropping 

Debate Touches Local Case, Minneapolis St. Paul Star Trib., Dec. 22, 2005, at 1B.

2265. Warsame, 547 F. Supp. 2d at 984; Interview with Hon. John R. Tunheim, Aug. 18, 2009.

2266. Warsame, 547 F. Supp. 2d at 985 86.

2267. Id., 547 F. Supp. 2d 982.
National Security Case Management Studies (11/14/2011) 255

Mistaken Rendition

El-Masri v. Tenet

(T.S. Ellis III, E.D. Va.)2268

Khaled el-Masri, a German citizen and resident of Lebanese heritage who was

born in Kuwait, claims that the U.S. Central Intelligence Agency abducted him on 

December 31, 2003, while he was on vacation in Macedonia and imprisoned him

for five months as part of its extraordinary rendition program and then abandoned

him in Albania after realizing that it had apprehended the wrong person.2269 El- Masri s captors thought he was Khalid al-Masri, who was believed to have been

involved in the September 11, 2001, attacks.2270 It apparently took two orders by

the National Security Advisor, Condoleezza Rice, over several weeks to release

el-Masri.2271

On March 2, 2007, the U.S. Court of Appeals for the Fourth Circuit affirmed

the dismissal of el-Masri s civil suit for damages as precluded by the state-secrets 

privilege.2272 The Supreme Court denied certiorari.2273

 2268. The appeal was heard by Fourth Circuit Judges Robert B. King, Dennis W. Shedd, and

Allyson K. Duncan.

2269. El-Masri v. United States, 479 F.3d 296, 300 (4th Cir. 2007); El-Masri v. Tenet, 437 F. Supp. 2d 530, 532 34 (E.D. Va. 2006); see Complaint at 1 2, 7 17, El-Masri v. Tenet, No. 1:05- cv-1417 (E.D. Va. Dec. 6, 2005), available at http://www.aclu.org/images/extraordinaryrendition/ 

asset_upload_file829_22211.pdf; see also Hafetz, supra note 502, at 58 59; David Johnston, Rice 

Ordered Release of German Sent to Afghan Prison in Error, N.Y. Times, Apr. 23, 2005, at A3;

Bob Kemper, A Privilege or a Free Pass?, Wash. Lawyer, Nov. 2009, at 24, 24 (reporting that

German investigators and a fellow detainee in the Afghan prison have confirmed El-Masri s story

and the identities of his captors); Neil A. Lewis, Federal Judge Dismisses Lawsuit by Man Held in 

Terror Program, N.Y. Times, May 19, 2006, at A22 [hereinafter Man Held]; Neil A. Lewis, Man 

Mistakenly Abducted by CIA Seeks Reinstatement of Suit, N.Y. Times, Nov. 29, 2006, at A15 [hereinafter Mistakenly Abducted]; Jules Lobel, Extraordinary Rendition and the Constitution: The

Case of Maher Arar, 28 Rev. Litig. 479, 480 (2008); Margulies, supra note 1018, at 192 ( On

New Year s Eve 2003, Khaled Masri traveled by bus from his home in Ulm, Germany, to Macedonia, after he and his wife got into an argument. ); The Passionate Eye: CIA s Secret War (CBC 

television broadcast Oct. 15, 2006); Dana Priest, The Wronged Man, Wash. Post, Nov. 29, 2006, at C1; Romero & Temple-Raston, supra note 275, at 66 69; Don Van Natta, Jr., & Souad Mekhennet, German s Claim of Kidnapping Brings Investigation of U.S. Link, N.Y. Times, Jan. 9, 2005, at 11; Steven M. Watt & Ben Wizner, The Not-So-Secret Man, in The Guantánamo Lawyers, supra note 1023, at 387 (reflections by el-Masri s attorneys). 2270. See Van Natta & Mekhennet, supra note 2269. 2271. See Johnston, supra note 2269; Lewis, Man Held, supra note 2269. 2272. El-Masri, 479 F.3d 296; see id. at 310 ( virtually any conceivable response to El-Masri s

allegations would disclose privileged information ); El-Masri, 437 F. Supp. 2d at 539, 541 (district court s dismissal); see also Kemper, supra note 2269, at 24; Adam Liptak, U.S. Appeals

Court Upholds Dismissal of Abuse Suit Against C.I.A., Saying Secrets Are at Risk, N.Y. Times, Mar. 3, 2007, at A6; Lewis, Man Held, supra note 2269; Lewis, Mistakenly Abducted, supra note 

2269; Priest, supra note 2269. 2273. El-Masri v. United States, 552 U.S. 947 (2007); see Robert Barnes, Supreme Court

Won t Review Alleged CIA Abduction, Wash. Post, Oct. 10, 2007, at A4; Linda Greenhouse, Jus-
256 National Security Case Management Studies (11/14/2011)

El-Masri s complaint, which he filed on December 6, 2005, alleges that he

was beaten, stripped, sodomized with a foreign object, and then flown to Kabul, Afghanistan, where he was imprisoned in the Salt Pit for another four

months.2274 The U.S. District Court for the Eastern District of Virginia assigned

the case to Judge T.S. Ellis III.2275 According to Judge Ellis,

Following his abduction, El-Masri alleges the Macedonia authorities imprisoned him in a

Skopje hotel room for 23 days, refusing to let him contact a lawyer, a German consular

officer, a translator or his wife, and interrogating him continuously about his alleged association with Al Qaeda, an association he consistently denied. . . .

. . .

. . . El-Masri says he remained imprisoned in Kabul until May 28, 2004, after which

he was flown in a private jet, again blindfolded, from Kabul to Albania, where he was

deposited by his captors on the side of an abandoned road. With the assistance of Albanian authorities, El-Masri eventually made his way back to his home in Germany only to

find that his wife and four children, believing he had abandoned them, had left Germany

to live in Lebanon.2276

It took four days for el-Masri to find his wife and children.2277

It was reported that el-Masri received very little psychiatric treatment for the

trauma he experienced until he was committed to a psychiatric institution following his setting fire to a supermarket in Ulm, Germany, on May 17, 2007.2278 On 

March 30, 2010, he was sentenced to two years in prison for attacking the mayor

of his home town.2279

 tices Turn Aside Case of Man Accusing C.I.A. of Torture, N.Y. Times, Oct. 10, 2007, at A16;

Kemper, supra note 2269, at 24. 2274. El-Masri, 437 F. Supp. 2d at 533; Complaint, supra note 2269, at 8 14; see Jane Mayer, The Black Sites, New Yorker, Aug. 13, 2007, at 46, 54 55 (describing the conditions of el-Masri s

detention); see also James Risen, State of War 30 (2006) ( CIA sources say that Salt Pit is in Afghanistan and is used to house low-level prisoners. ); Romero & Temple-Raston, supra note 275, at 

69 (describing the Salt Pit as a secret U.S.-run prison just north of Kabul and noting that the suit

was filed on a day that Rice, who had become Secretary of State, arrived in Berlin for a visit with

Chancellor Angela Merkel).

2275. Docket Sheet, El-Masri v. Tenet, No. 1:05-cv-1417 (E.D. Va. Dec. 6, 2005) [hereinafter

E.D. Va. Docket Sheet]; see Kemper, supra note 2269, at 24. Tim Reagan interviewed Judge Ellis for this report in the judge s chambers on September 5, 2007.

2276. El-Masri, 437 F. Supp. 2d at 532 34; see Complaint, supra note 2269, at 7, 14 16; see 

also Johnston, supra note 2269; Van Natta & Mekhennet, supra note 2269. It was reported that German officials may have known of el-Masri s detention within a few

days of his capture. Souad Mekhennet & Craig S. Smith, German Spy Agency Admits Mishandling 

Abduction Case, N.Y. Times, June 2, 2006, at A8; Don Van Natta, Jr., Germany Weighs If It

Played Role in Seizure by U.S., N.Y. Times, Feb. 21, 2006, at A1.

2277. See Van Natta & Mekhennet, supra note 2269. 2278. See Souad Mekhennet, Ex-C.I.A. Detainee Held in Arson Attack, N.Y. Times, May 18, 2007, at A8; Tony Paterson, CIA Torture Victim Committed After Supermarket Arson Attack, Indep. (London), May 19, 2007, at 3; see also Priest & Arkin, supra note 239, at xxiii (concluding

that the CIA s bungled operation cost el-Masri his sanity).

2279. See Ex-CIA Torture Victim Convicted of Assault, Toronto Star, Mar. 31, 2010, at 17.
National Security Case Management Studies (11/14/2011) 257

In 2007, a German court issued arrest warrants for 13 CIA operatives who

participated in el-Masri s abduction.2280 The German government, however, did

not seek the operatives extradition,2281and a Gernan court rejected a suit by el- Masri to compel prosecution.2282 On allegations that the plane that transported el- Masri stopped in La Palma, Spain, prosecutors asked a Spanish court to also issue

arrest warrants for the operatives.2283

On April 9, 2008, the ACLU filed a petition on el-Masri s behalf with the Organization of American States Inter-American Commission on Human

Rights.2284

Challenge: Classified Arguments

The government asserted the state-secrets privilege

by submitting an ex parte classified declaration labeled JUDGE S EYES ONLY, and

also an unclassified declaration for the public record. The latter document states in general terms that damage to the national security could result if the defendants in this case

were required to admit or deny El-Masri s allegations. The former is a detailed explanation of the facts and reasons underlying the assertion of the privilege.2285 The classified declaration was delivered to the judge by a classified information security officer, who took responsibility for its storage when the judge was

not privately reviewing it.2286

Without revealing the contents of classified submissions, Judge Ellis noted

that

the substance of El-Masri s publicly available complaint alleges a clandestine intelligence

program, and the means and methods the foreign intelligence services of this and other

countries used to carry out the program. And, as the public declaration makes pellucidly

clear, any admission or denial of these allegations by defendants in this case would reveal 

the means and methods employed pursuant to this clandestine program and such a revelation would present a grave risk of injury to national security. This conclusion finds firm

support in the details disclosed in the [Director of the CIA s] classified ex parte declaration.2287

 2280. See Jeffrey Fleishman & John Goetz, Germany May Indict U.S. Agents in Abduction, N.Y. Times, Jan. 31, 2007, at 1; Mark Landler, German Court Challenges CIA Over Abduction, N.Y. Times, Feb. 1, 2007, at A1 ( They include the four pilots of the Boeing 737 that picked up

Mr. Masri, a mechanic and several CIA operatives, people familiar with the case said. ); Lobel, supra note 2269, at 480; Craig Whitlock, Germans Charge 13 CIA Operatives, Wash. Post, Feb. 1, 2007, at A1.

2281. See Michael Slackman, Of icials Pressed Germans on Kidnapping by C.I.A., N.Y. Times, Dec. 9, 2010, at A13.

2282. See Court Rejects Lawsuit Related to a C.I.A. Kidnapping, N.Y. Times, Dec. 11, 2010, at A10.

2283. See Manuel Altozano, High Court Seeks Arrest of CIA Agents for 2004 Kidnap, El País, May 12, 2010, at 1.

2284. http://www.aclu.org/files/pdfs/safefree/elmasri_iachr_20080409.pdf. 2285. El-Masri v. Tenet, 437 F. Supp. 2d 530, 537 (E.D. Va. 2006); see E.D. Va. Docket

Sheet, supra note 2275 (noting a Mar. 23, 2006, notice of in camera submission).

2286. Interview with Hon. T.S. Ellis III, Sept. 5, 2007.

2287. El-Masri, 437 F. Supp. 2d at 537.
258 National Security Case Management Studies (11/14/2011)

The court of appeals also reviewed the classified declaration and announced

that the extensive information it contains is crucial to our decision in this matter. 2288 The appeal was heard on November 28, 2006, by Circuit Judges Robert

B. King, Dennis W. Shedd, and Allyson K. Duncan.2289 Sometime before oral argument, Judge King, who was to author the opinion, drove from his home in

Charleston, West Virginia, to Richmond, Virginia, to review the classified declaration.2290 A deputy clerk with a security clearance brought the declaration to

Judge King s chambers, where the judge reviewed the declaration in private, and

a cleared deputy clerk returned the declaration to the court s sensitive compartmented information facility (SCIF) when the judge was finished.2291 Judges Shedd 

and Duncan reviewed the declaration in their Richmond chambers when they 

were in town for a sitting.2292

Two Supreme Court justices reviewed the classified declaration to consider el- Masri s petition for certiorari,2293 which the court denied.2294

 2288. El-Masri v. United States, 479 F.3d 296, 312 (4th Cir. 2007).

2289. Docket Sheet, El-Masri v. Tenet, No. 06-1667 (4th Cir. June 14, 2006). 

For this report, Tim Reagan interviewed interviewed Judge Duncan by telephone on November 

8, 2007; Judge King in the judge s Richmond chambers on March 19, 2008; and Judge Shedd by

telephone on September 3, 2009.

2290. Interview with Hon. Robert B. King, March 19, 2008. The drive is approximately 320

miles.

2291. Id.; see Reagan, supra note 173, at 19 (describing SCIFs).

The court created the SCIF for the Zacarias Moussaoui case. Interview with 4th Cir. Clerk s

Office Staff, Feb. 26, 2008; see supra, Twentieth Hijacker. 2292. Interview with Hon. Dennis W. Shedd, Sept. 3, 2009; Interview with Hon. Allyson Kay

Duncan, Nov. 8, 2007.

2293. Interview with Dep t of Justice Litig. Sec. Group Staff, Nov. 6, 2007. 2294. El-Masri v. United States, 552 U.S. 947 (2007).
National Security Case Management Studies (11/14/2011) 259

Detainee Documents

ACLU v. Department of Defense

(Alvin K. Hellerstein, S.D.N.Y.)

Several civil rights organizations the ACLU, the Center for Constitutional

Rights, Physicians for Human Rights, Veterans for Common Sense, and Veterans

for Peace sought injunctive relief in aid of Freedom of Information Act (FOIA)

requests to the government specifically the Departments of Defense, Homeland 

Security, Justice, and State, and the CIA by filing an action in the Southern District of New York on June 2, 2004.2295 The court assigned the case to Judge Alvin

K. Hellerstein.2296

The FOIA requests were presented to the various government agencies from

October 2003 to May 2004.2297 They sought records concerning three topics pertaining to terrorism suspects detained by the government at extraterritorial military facilities since September 11, 2001: (1) records of treatment, (2) records of

deaths, and (3) records of rendition to countries known to use torture.2298 The only 

document produced before the lawsuit was filed was a set of State Department

talking points.2299

A little over three months after the case was filed, Judge Hellerstein ordered

the government agencies to produce or identify all responsive documents within

one month.2300 Juge Hellerstein scheduled a status conference for 10 days following that deadline.2301

It is the duty of the court to uphold FOIA by striking a proper balance between plaintiffs right to receive information on government activity in a timely manner and the government s contention that national security concerns prevent timely disclosure or identification. . . . .

 2295. Complaint, ACLU v. Dep t of Defense, No. 1:04-cv-4151 (S.D.N.Y. June 2, 2004); see

Amended Complaint, id. (July 6, 2004).

2296. Docket Sheet, id. (June 2, 2004).

Tim Reagan interviewed Judge Hellerstein for this report in the judge s chambers on November 5, 2009.

2297. ACLU v. Dep t of Defense, 339 F. Supp. 2d 501, 502 (S.D.N.Y. 2004); Amended Complaint, supra note 2295, at 2 3; see Amrit Singh, Freedom of Information, in The Guantánamo

Lawyers, supra note 1023, at 246, 246.

2298. ACLU v. Dep t of Defense, 723 F. Supp. 2d 621, 623 (S.D.N.Y. 2010); ACLU, 339 F. Supp. 2d at 502; Amended Complaint, supra note 2295, at 2.

Amnesty Internatioanl, the Center for Constitutional Rights, and Washington Square Legal

Services are pursuing a separate FOIA action before Judge Loretta A. Preska against the same

defendants for documents pertaining to extraordinary rendition. Amnesty Int l USA v. CIA, 728 F. 

Supp. 2d 479 (S.D.N.Y. 2010) (largely approving CIA s response to FOIA requests); Docket

Sheet, Amnesty Int l USA v. CIA, No. 1:07-cv-5435 (S.D.N.Y. June 7, 2007); see CIA Sustained

in Sheilding Interrogation Documents, Nat l L.J., Aug. 16, 2010, at 8. 2299. See Scott Shane, A.C.L.U. Lawyers Mine Documents for Truth, N.Y. Times, Aug. 31, 2009, at A4. 

2300. ACLU, 339 F. Supp. 2d at 505.

2301. Id.
260 National Security Case Management Studies (11/14/2011)

. . . Documents that have been classified as matters of national defense or foreign

policy may be exempt from FOIA. However, before it can be determined if documents

requested by plaintiffs fall under such exemptions, the documents must first be identified, 

by some form of log, to enable a specific claim of exemption to be asserted and justified. As to documents the existence of which the government contends it may be unable to

confirm or deny, procedures can be established to identify such documents in camera or

to a special master with proper clearance. . . .

. . . . I order that by October 15, 2004 defendants must produce or identify all responsive

documents. . . . Documents that cannot be identified to plaintiffs because of their classified status shall be identified in camera on a log produced to the court, providing the document s classification status and justification thereof.2302 The CIA moved to stay Judge Hellerstein s order as to CIA files on the

ground that the CIA Information Act exempts CIA operational files from

FOIA.2303 Judge Hellerstein denied the stay, ruling that the CIA failed to satisfy

the statutory requirement that the Director of the CIA explicitly claim the exemption with respect to specifically categorized files.2304 Moreover, the statute excepts 

from the exemption files relating to government investigations of illegal conduct.2305 The documents sought by the plaintiffs related to an investigation by the

CIA s Inspector General of the CIA s treatment of detainees.2306

The CIA cured the procedural defect, and Judge Hellerstein ruled that to

comply with the FOIA request, the CIA needed only to search and review relevant 

documents already identified and produced to or collected by the Inspector General.2307 Determinations by the CIA Director that the illegality exception does not

apply are not subject to district court review.2308

By September 2005, The government, after being inattentive for many

months to the obligations imposed on it by FOIA, [had] made large, but not complete, production, reviewing and turning over thousands of documents from various of its agencies. 2309 Judge Hellerstein resolved some pending disputes concerning document production, including by reviewing some documents in camera.2310

Judge Hellerstein s June 2006 rulings on 29 photographs taken by individuals serving in Iraq and Afghanistan

2311

received Supreme Court action. On September 22, 2008, the court of appeals affirmed Judge Hellerstein s order that the

government release 21 of these photographs, with redactions to protect the sub-

 2302. Id. at 504 05 (citation omitted).

2303. ACLU v. Dep t of Defense, 351 F. Supp. 2d 265, 267 (S.D.N.Y. 2005).

2304. Id. at 268, 272, 278.

2305. Id. at 271.

2306. Id. at 268, 271 73.

2307. Order, ACLU v. Dep t of Defense, No. 1:04-cv-4151 (S.D.N.Y. April 18, 2005).

2308. ACLU v. Dep t of Defense, 723 F. Supp. 2d 621 (S.D.N.Y. 2010).

2309. ACLU v. Dep t of Defense, 389 F. Supp. 2d 547, 550 (S.D.N.Y. 2005) (citation omitted).

2310. ACLU, 389 F. Supp. 2d 547.

2311. Supplemental Order, ACLU, No. 1:04-cv-4151 (S.D.N.Y. June 21, 2006), available at

2006 WL 1722574; Order, id. (June 9, 2006), available at 2006 WL 1638025.
National Security Case Management Studies (11/14/2011) 261

jects privacy.2312 On October 28, 2009, the President signed an appropriations

bill for the Department of Homeland Security, which included the Protected National Security Documents Act of 2009. 2313 This act allows the Secretary of Defense to protect from disclosure any detainee photograph taken from September

11, 2001, through January 22, 2009, if disclosure would endanger American citizens, military personnel, or employees abroad.2314 The Supreme Court remanded

the case back to the court of appeals for reconsideration in light of the act,2315 and 

the court of appeals vacated Judge Hellerstein s June 2006 rulings.2316

On December 7, 2007, news media reported that in 2005 the CIA destroyed

videotapes of detainee interrogations.2317 Five days later, plaintiffs moved for contempt and sanctions.2318 On January 2, 2008, Attorney General Michael Mukasey

announced a criminal investigation into the destruction of the tapes.2319 Judge 

Hellerstein stayed consideration of the contempt motion until February 2009 so as 

not to interfere with the criminal investigation.2320 On July 30, 2009, Judge Hellerstein, finding that the investigation continued, ordered the government to prepare an index of documents relevant to the contempt motion.2321 On November 9, 2010, the government announced that the tape destruction would result in no

criminal charges.2322 Judge Hellerstein, on October 5, 2011, denied the contempt

motion, because a finding of contempt would not cure any present impropriety, but he did agree to award the plaintiffs attorney fees for the motion.2323

By the end of August 2009, the plaintiffs had obtained 2,814 documents from

the Defense Department, 998 from the State Department, 872 from the FBI, 145

from other Justice Department units, and 49 from the CIA.2324 Information based

in part on this FOIA action is presented in the ACLU s online Torture Report.2325

 2312. ACLU v. Dep t of Defense, 543 F.3d 59 (2d Cir. 2008), vacated, ___ U.S. ___, 130 S. Ct. 777 (2009).

2313. Pub. L. No. 111-83§ 565, 123 Stat. 2142, 2184 85 (2009).

2314. Id.; see Adam Liptak, Supreme Court Overturns Decision on Detainee Photos, N.Y. Times, Dec. 1, 2009, at A18.

2315. Dep t of Defense v. ACLU, ___ U.S. ___, 130 S. Ct. 777 (2009); see Liptak, supra note 

2314. 2316. Order, ACLU v. Dep t of Defense, No. 06-3140 (2d Cir. May 6, 2010).

2317. Eggen & Warrick, CIA Destroyed Videos, supra note 1261; Mazzetti, supra note 1261. 2318. Opinion at 1, ACLU v. Dep t of Defense, No. 1:04-cv-4151 (S.D.N.Y. July 30, 2009) 

[hereinafter July 30, 2009, Opinion].

2319. See Eggen & Warrick, Criminal Probe Opened, supra note 1261; Mazzetti & Johnston, supra note 1261. 2320. July 30, 2009, Opinion, supra note 2318, at.1.

2321. July 30, 2009, Opinion, supra note 2318. 2322. See Mazzetti & Savage, supra note 1261. 2323. Opinion, ACLU, No. 1:04-cv-4151 (S.D.N.Y. Oct. 5, 2011), available at 2011 WL

4636596. 2324. See Shane, supra note 2299; see also Singh, supra note 2297, at 251 (more than 100,000 

pages).

2325. http://www.thetorturereport.org.
262 National Security Case Management Studies (11/14/2011)

Pending are appeals of some of Judge Hellerstein s rulings in this case2326 and 

a companion case2327concerning legal memoranda prepared by the Justice Department s Office of Legal Counsel.2328

Challenge: Classified Evidence

All of Judge Hellerstein s law clerks have security clearances.2329 They begin the

process of getting cleared at hiring, before they start work.2330 However, the government did not extend the law clerks need to know to all classified materials that

Judge Hellerstein had to review.2331 As a result, Judge Hellerstein developed a

procedure where he could examine documents on the record by being the only

one looking at them.2332 A court reporter without a clearance could record the

proceeding and law clerks, who had clearances but still were not cleared to see the 

documents, could attend.2333 Judge Hellerstein did not retain the documents after

he examined them and ruled on whether or not they had to be produced either redacted or unredacted.2334

Judge Hellerstein described one occasion in a published opinion:

On September 30, 2009, I conducted an in camera, ex parte review of the documents 

at issue in the fourth and fifth motions for summary judgment. Government attorneys and 

a court reporter were present. I reviewed the documents and expressed preliminary rulings, and at times, posed questions to the Government attorneys about the documents. The transcript of this proceeding was classified but was released, in redacted form, several weeks later. After the ex parte session ended, I heard oral argument in open court on

various of the legal issues at hand, and expressed initial rulings . . . .2335

 2326. Docket Sheet, ACLU v. Dep t of Defense, No. 10-4668 (2d Cir. Nov. 17, 2010) (plaintiffs appeal, noting argument planned for early in 2012); Docket Sheet, ACLU v. Dep t of Defense, No. 10-4290 (2d Cir. Oct. 26, 2010) (government s appeal). 2327. Docket Sheet, ACLU v. Dep t of Justice, No. 10-4647 (2d Cir. Nov. 15, 2010) (plaintiffs appeal, noting argument planned for early in 2012); Docket Sheet, ACLU v. Dep t of Justice, No. 10-4289 (2d Cir. Oct. 25, 2010) (government s appeal). 2328. Complaint, ACLU v. Dep t of Justice, No. 1:05-cv-9620 (S.D.N.Y. Nov. 15, 2005).

2329. Interview with Hon. Alvin K. Hellerstein, Nov. 5, 2009.

2330. Id.

2331. Id.

2332. Id.

2333. Id.

2334. Id.

2335. ACLU v. Dep t of Defense, 723 F. Supp. 2d 621, 624 (S.D.N.Y. 2010).
National Security Case Management Studies (11/14/2011) 263

Prosecution of a Charity

United States v. Holy Land Foundation

(A. Joe Fish and Jorge A. Solis, N.D. Tex.)

On July 27, 2004, the government indicted the Holy Land Foundation for Relief

and Development, once the largest Islamic charity in the United States, and seven

of its leaders, for providing funds to Hamas.2336 The U.S. District Court for the

Northern District of Texas assigned the case to Judge A. Joe Fish.2337

The Occupied Land Fund was established in 1989 by Shukri Abu Baker and

Ghassan Elashi; in 1991, the fund reorganized as the Holy Land Foundation.2338

The foundation was an offshoot of the Islamic Association for Palestine, an information group.2339 Both groups were headquartered in Richardson, Texas, approximately 15 miles north of Dallas.2340 The FBI had been investigating the

foundation s ties to Hamas since shortly after its reorganization.2341

The foundation and its principals had already been parties in other cases. Parents of David Boim, a 17-year-old boy killed in a 1996 terrorist attack in Israel, filed a federal civil action in Chicago in 2000 against the Holy Land Foundation

and other defendants, alleging that the defendants provided financial support to

Hamas, whom the parents alleged killed their son.2342

 2336. Indictment, United States v. Holy Land Foundation, No. 3:04-cr-240 (N.D. Tex. July 26, 

2004); see James Brooke & Elaine Sciolino, U.S. Muslims Say Their Aid Pays for Charity, Not

Terror, N.Y. Times, Aug. 16, 1995, at 1; Eric Lichtblau, Arrests Tie Charity Group to Palestinian Terrorists, N.Y. Times, July 28, 2004, at A10; Michelle Mittelstadt, Matt Stiles & Frank Trejo, Muslim Charity, Leaders Indicted U.S. Says, Dallas Morning News, July 28, 2004, at 1A.

2337. Docket Sheet, Holy Land Foundation, No. 3:04-cr-240 (N.D. Tex. July 26, 2004) [hereinafter N.D. Tex. Holy Land Foundation Docket Sheet].

Tim Reagan interviewed Judge Fish for this report in the judge s chambers on October 6, 2009.

2338. Holy Land Foundation v. Ashcroft, 333 F.3d 156, 160 (D.C. Cir. 2003); Holy Land

Foundation v. Ashcroft, 219 F. Supp. 2d 57, 64 (D.D.C. 2002); Representation Order at 18, Holy 

Land Foundation, No. 3:04-cr-240 (N.D. Tex. May 24, 2010); see Brooke & Sciolino, supra note 

2336; Steve McGonigle, Tie to Hamas Leader Minimized, Dallas Morning News, Dec. 16, 2001, at 35A; Gayle Reaves & Steve McGonigle, Paper Trail Leads to Hamas, Dallas Morning News, Apr. 8, 1996, at 1A.

2339. See Brooke & Sciolino, supra note 2336; Reaves & McGonigle, supra note 2338. 2340. See Brooke & Sciolino, supra note 2336; Reaves & McGonigle, supra note 2338. 2341. See Todd J. Gillman, FBI Looks Into Islamic Fund Raising, Dallas Morning News, Nov. 18, 1994, at 29A; Steve McGonigle, Charity Inquiry Dated to 1989, Dallas Morning News, Dec. 20, 2002, at 33A; Jason Trahan, Stakes High in Holy Land Trial, Dallas Morning News, July 16, 2007, at 1A; Peter Whoriskey, Mistrial Declared in Islamic Charity Case, Wash. Post, Oct. 23, 2007, at A3. 

2342. Complaint, Boim v. Quranic Literacy Inst., No. 1:00-cv-2905 (N.D. Ill. May 12, 2000);

see Boim v. Holy Land Found., 549 F.3d 685, 687 (7th Cir. 2008); Boim v. Quranic Literacy Inst., 349 F. Supp. 2d 1097 (N.D. Ill. 2004) (resolving motions in limine); Boim v. Quranic Literacy

Inst., 340 F. Supp. 2d 885 (N.D. Ill. 2004) (resolving motions for summary judgment); Boim v. Quranic Literacy Inst., 127 F. Supp. 2d 1002 (N.D. Ill. 2001) (denying motions to dismiss), af d, 291 F.3d 1000 (7th Cir. 2002); see also Steve McGonigle, Suit Accuses Islamic Groups of Aiding
264 National Security Case Management Studies (11/14/2011)

On November 29, 2004, the district court granted the plaintiffs summary

judgment on liability against some of the defendants, including the foundation.2343

The jury returned a damages verdict of $52 million,2344 which the court statutorily 

trebled to $156 million.2345 On December 3, 2008, however, the court of appeals, en banc, reversed the district court s summary judgment against the foundation, because the district court had improperly given preclusive effect to another district court s affirming a seizure of the foundation s assets.2346

On December 4, 2001, the Treasury Department s Office of Foreign Asset

Control designated the foundation a terrorist organization and froze its assets.2347

On March 11, 2002, the foundation challenged the designation and the freezing in

the U.S. District Court for the District of Columbia.2348 On June 20, 2003, the

court of appeals affirmed a judgment in the government s favor.2349

The foundations s co-defendants in the Northern District of Texas prosecution 

were CEO Abu Baker; chairman Elashi; Mohammed El-Mezain, director of endowments; Mufid Abdulqader, a top fundraiser; Abdulrahman Odeh, the foundation s New Jersey representative; Haitham Maghawri; and Akram Mishal.2350

Maghawi and Mishal were living abroad and considered fugitives.2351

 in Terrorist Attack, Dallas Morning News, May 13, 2000, at 29A; Matt O Connor, Parents of Boy

Slain in Israel File Suit, Chi. Trib., May 15, 2000, Metro Chicago, at 1.

2343. Boim, 549 F.3d at 688; Boim, 340 F. Supp. 2d 885; see Laurie Cohen, 3 Islamic Fun- draisers Held Liable in Terror Death, Chi. Trib., Nov. 11, 2004, Metro Chicago, at 1; Steve

McGonigle, Former Richardson Charities Tied to Hamas, Judge Rules, Dallas Morning News, Nov. 11, 2004, at 14A.

2344. Boim, 549 F.3d at 688; Verdict Form, Boim, No. 1:00-cv-2905 (N.D. Ill. Dec. 8, 2004).

2345. Boim, 549 F.3d at 688; Amended Judgment, Boim, No. 1:00-cv-2905 (N.D. Ill. Feb. 25, 2005); see 18 U.S.C. § 2333(a); see also Matt O Connor, $156 Million Award in Terrorist Killing, Chi. Trib., Dec. 9, 2004, Metro, at 1.

2346. Boim, 549 F.3d at 691, cert. denied, ___ U.S. ___, 130 S. Ct. 458 (2009).

2347. Holy Land Foundation v. Ashcroft, 333 F.3d 156, 159 60 (D.C. Cir. 2003); Holy Land

Foundation v. Ashcroft, 219 F. Supp. 2d 57, 62, 64 (D.D.C. 2002); Representation Order, supra

note 2338, at 18; see United States v. Holy Land Foundation, 493 F.3d 469, 471 n.3 (5th Cir. 2007); Leslie Eaton, U.S. Prosecution of Muslim Group Ends in Mistrial, N.Y. Times, Oct. 23, 2007, at A1; David Jackson, Holy Land Charity Shut Down, Dallas Morning News, Dec. 5, 2001, at 1A; Whoriskey, supra note 2341. Hamas, a word that means zeal in Arabic, is an acronym for Harakat al-Muqawama alIslamiyya, which means The Islamic Resistance Movement. Holy Land Foundation, 493 F.3d

at 471 n.1; see Hundley, How Israel Helped Militants Gain Power, Chi. Trib., Feb. 2, 1993, News, 

at 1; Reaves & McGonigle, supra note 2338. The government declared Hamas a terrorist organization on January 23, 1995. Holy Land Foundation, 333 F.3d at 159; Holy Land Foundation, 219 F. Supp. 2d at 64 n.2.

2348. Docket Sheet, Holy Land Foundation v. Ashcroft, No. 1:02-cv-442 (D.D.C. Mar. 8, 2002); see Holy Land Foundation, 219 F. Supp. 2d at 64.

2349. Holy Land Foundation, 333 F.3d 156; see Holy Land Foundation, 219 F. Supp. 2d 57;

see Michelle Mittelstadt, Ruling Keeps Charity s Assets Frozen, Dallas Morning News, June 21, 2003, at 1A.

2350. Indictment, supra note 2336; see Mittelstadt et al., supra note 2336; Trahan, supra note 

2341. 2351. See Mittelstadt et al., supra note 2336; Trahan, supra note 2341.
National Security Case Management Studies (11/14/2011) 265

On December 17, 2002, the government indicted Elashi in a separate case

against his family s computer company, Infocom, alleging that the Elashis and

their company (1) violated export regulations in their export of goods to Libya

and Syria and (2) funneled money to Hamas through a cousin s husband, Mousa

Abu Marzook, who was once the head of Hamas s political branch.2352 Ghassan 

Elashi s indictment was included in a superseding indictment in a case against the

computer company and Ghassan s brothers Bayan and Basman Elashi and Ihsan

Elashyi, which was filed on February 20, 2002.2353 Also included in the superseding indictment were a fifth brother, Hazim Elashi; the men s cousin, Nadia Elashi;

and her husband Abu Marzook.2354 The court assigned the case to Judge Sam A. Lindsay.2355

On July 7, 2004, a jury found the brothers and their company guilty of export

improprieties.2356 On April 13, 2005, a separate jury found Ghassan, Bayan, and

Basman Elashi and their company guilty of funneling funds to terrorists.2357 Judge 

Lindsay sentenced Ghassan Elashi to a term of six years and eight months on October 16, 2006.2358 The other brothers sentences ranged from five to seven

years.2359 Nadia Elashi and Abu Marzook were fugitives.2360

Jury selection in the Holy Land Foundation trial began on July 16, 2007.2361

Judge Fish used a jury questionnaire.2362

 2352. United States v. Elashyi, 554 F.3d 480, 489 91 & n.2 (5th Cir. 2008); United States v. Elashi, 440 F. Supp. 2d 2d 536, 541 43 (N.D. Tex. 2007); Docket Sheet, United States v. Elashi, No. 3:02-cr-52 (N.D. Tex. Feb. 20, 2002) [hereinafter N.D. Tex. Elashi Docket Sheet]; see Eric 

Lichtblau & Judith Miller, 5 Brothers Charged with Aiding Hamas, N.Y. Times, Dec. 19, 2002, at

A19; Cam Simpson, Tech Company Execs, Chief in Hamas Indicted by U.S., Chi. Trib., Dec. 19, 2002, News, at 14.

2353. N.D. Tex. Elashi Docket Sheet, supra note 2352. 2354. Id.

2355. Id.

2356. Id.

2357. Elashi, 440 F. Supp. 2d at 544; N.D. Tex. Elashi Docket Sheet, supra note 2352; see

Roy Appleton & Matt Stiles, Dallas Morning News, 3 Guilty of Terror Dealings, Apr. 14, 2005, at 

1B.

2358. N.D. Tex. Elashi Docket Sheet, supra note 2352; see Michael Grabell, Holy Land

Founder Gets 6 Years, Dallas Morning News, Oct. 13, 2006, at 5B.

2359. N.D. Tex. Elashi Docket Sheet, supra note 2352 (noting Bayan Elashi s sentence of seven years and Basman Elashi s sentence of six years and eight months on Oct. 16, 2006, Hazim

Elashi s sentence of five years on Feb. 1, 2006, and Ihsan Elashyi s sentence of six years on Jan. 27, 2006); see Michael Grabel, Richardson Man Gets 7 Years in 04 Export Case, Dallas Morning

News, Oct. 12, 2006, at 11B; Tim Wyatt, 2 Sentenced for InfoCom Exports, Dallas Morning

News, Jan. 26, 2006, at 9B.

2360. N.D. Tex. Elashi Docket Sheet, supra note 2352; see Appleton & Stiles, supra note 

2357. 2361. Representation Order, supra note 2338, at 4; see Neil MacFarquhar, As Muslim Group

Goes on Trial, Other Charities Watch Warily, N.Y. Times, July 17, 2007, at A14; Trahan, supra

note 2341. In advance of jury selection, Judge Fish granted defendants motion for information on how

the grand and petit jury were constituted so that the defendants could assess whether or not there
266 National Security Case Management Studies (11/14/2011)

During the first few days of jury selection, Judge Fish conducted proceedings

to establish waivers of conflict relating to defense attorneys representing both the

Holy Land Foundation and Abu Baker, its CEO.2363 Elashi had signed a waiver of

conflict on behalf of the foundation, but his attorney announced during these proceedings that he may not have had the authority to speak for the foundation.2364

The foundation s attorney said that she did not think there existed anyone who

could speak for the foundation, so Judge Fish granted her firm s request to withdraw from representation of the foundation, and trial proceeded without the foundation s having counsel.2365

On September 19, the jury began to deliberate.2366 Jurors deliberated on 197

counts for 19 days.2367 On Thursday, October 18, the jury announced a partial 

verdict, but Judge Fish was at a judges conference out of town.2368 So the verdict

was presented to Magistrate Judge Paul D. Stickney, who kept it sealed until

Judge Fish s return.2369

On Monday, Judge Fish unsealed the verdict.2370 According to the verdict, one 

defendant was acquitted, but the jury was deadlocked on some charges for each of 

the other defendants.2371 When the judge polled the jury, three jurors said that the

verdict did not represent their views, so Judge Fish ordered the jury to resume de-

 was a structural or statistical bias against Arabs or Muslims. Opinion, Holy Land Foundation v. Ashcroft, No. 3:04-cr-240 (N.D. Tex. Feb. 27, 2007), available at 2007 WL 1452489. 2362. A. Joe Fish, United States v. Holy Land Foundation: Jury Questionnaire (July 16, 2007).

2363. Representation Order, supra note 2338, at 4 5; Transcript at 1013 16, Holy Land Foun- dation, No. 3:04-cr-240 (N.D. Tex. July 20, 2007, filed Sept. 25, 2008); Transcript at 821 23 id.

(July 18, 2007, filed Sept. 25, 2008) [hereinafter N.D. Tex. Holy Land Foundation July 18, 2007, Transcript]; Transcript at 523 26, id. (July 17, 2007, filed Sept. 25, 2008) [hereinafter N.D. Tex. Holy Land Foundation July 20, 2007, Transcript]; Interview with Hon. A. Joe Fish, Oct. 6, 2009.

2364. Representation Order, supra note 2338, at 4 5; N.D. Tex. Holy Land Foundation July 

18, 2007, Transcript, supra note 2363, at 822. 2365. Representation Order, supra note 2338, at 5, 13; N.D. Tex. Holy Land Foundation July 

20, 2007, Transcript, supra note 2363, at 1013 16; Interview with Hon. A. Joe Fish, Oct. 6, 2009;

see Jason Trahan, Lawyers Debate Holy Land Foundation s Right to Attorney for Appeal, Dallas

Morning News, Jan. 13, 2010, at B7.

2366. See Jason Trahan, Jury in Complex Holy Land Case Begins Deliberations, Dallas Morning News, Sept. 20, 2007, at 11B; see also A. Joe Fish, United States v. Holy Land Foundation:

Jury Instructions (Sept. 19, 2007).

2367. See Leslie Eaton, Reading of Verdict in Terror Case Is Delayed, N.Y. Times, Oct. 19, 2007, at A18; Jason Trahan, Holy Land Verdict Sealed, Dallas Morning News, Oct. 19, 2007, at

1A.

2368. Interview with Hon. A. Joe Fish, Oct. 6, 2009 (reporting that Judge Fish was at an annual conference for judges handling multidistrict consolidations); see Eaton, supra note 2367; 

Trahan, supra note 2367. 2369. Interview with Hon. A. Joe Fish, Oct. 6, 2009; see Eaton, supra note 2367; Trahan, supra note 2367. Because they knew that Judge Fish would be out of town, several of the government s attorneys in the case were also away. See Trahan, supra note 2367. 2370. Interview with Hon. A. Joe Fish, Oct. 6, 2009; see Eaton, supra note 2347; Jason Trahan, There Was Not Enough Evidence, Dallas Morning News, Oct. 23, 2007, at 1A; Whoriskey, 

supra note 2341. 2371. Interview with Hon. A. Joe Fish, Oct. 6, 2009.
National Security Case Management Studies (11/14/2011) 267

liberations.2372 After additional deliberation, the jury returned that day deadlocked 

on counts against all defendants, so Judge Fish declared a mistrial.2373 Mohammed el-Mezain, the foundation s former chairman, was acquitted of all but

one charge.2374 The jury was deadlocked on counts against all of the other defendants.2375

On November 12, 2007, Judge Fish assumed senior status and took himself

out of the draw for criminal cases, so Judge Jorge A. Solis assumed responsibilities for the retrial.2376 Judge Solis also used a jury questionnaire.2377

Opening arguments in the retrial began on September 22, 2008.2378 On November 24, after eight days of deliberation, the jury found all defendants guilty on 

all 108 counts included in the retrial.2379 Judge Solis sentenced Elashi to 65 years

in prison, a sentence to be served consecutive to the sentence in his computer- company prosecution.2380 Abu Baker was also sentenced to 65 years; Abdulqader

was sentence to 20 years; el-Mezain and Odeh were each sentenced to 15

years.2381 Appeals are pending.2382

 2372. See Eaton, supra note 2347. 2373. Interview with Hon. A. Joe Fish, Oct. 6, 2009; see Eaton, supra note 2347; Trahan, supra note 2370; Whoriskey, supra note 2341. 2374. Jury Verdicts, United States v. Holy Land Foundation, No. 3:04-cr-240 (N.D. Tex. Oct. 22, 2007); see Eaton, supra note 2347; Trahan, supra note 2370. 2375. See Eaton, supra note 2347; Trahan, supra note 2370. 2376. Federal Judicial Center Biographical Directory of Federal Judges, http://www.fjc.gov/ 

public/home.nsf/hisj; Interview with Hon. A. Joe Fish, Oct. 6, 2009; see Jason Trahan, For Holy

Land Judge, a Change, Dallas Morning News, Nov. 13, 2007, at 1B; Jason Trahan, Senate Attor- ney Named U.S. Judge, Dallas Morning News, Nov. 26, 2007, at 1B.

Tim Reagan interviewed Judge Solis for this report in the judge s chambers on October 6, 2009.

2377. Jorge A. Solis, United States v. Holy Land Foundation: Jury Questionnaire (Sept. 4, 2008).

2378. See Carrie Johnson & Walter Pincus, Terrorism Financing Case Back in Court, Wash. Post, Sept. 21, 2008, at A2. 

2379. See Tanya Eiserer & Jason Trahan, 5 Ex-Leaders Guilty in Holy Land Trial, Dallas

Morning News, Nov. 25, 2008, at 1A; Gretel C. Kovach, U.S. Wins Convictions in Retrial of Ter- rorism-Financing Case, N.Y. Times, Nov. 25, 2008, at A16; see also Jorge A. Solis, United States 

v. Holy Land Foundation: Supplemental Jury Instructions (Nov. 24, 2008); Jorge A. Solis, United 

States v. Holy Land Foundation: Jury Instructions (Nov. 10, 2008).

2380. Judgment, United States v. Holy Land Foundation, No. 3:04-cr-240 (N.D. Tex. May 29, 2009); see Jason Trahan, 5 Decry Jail Terms in Holy Land Case, Dallas Morning News, May 28, 2009, at 1A.

2381. Judgment, Holy Land Foundation, No. 3:04-cr-240 (N.D. Tex. May 29, 2009) (Baker s

sentence); Judgments, id. (May 28, 2009) (Abdulqader, El-Mezain, and Odeh s sentences); see

Trahan, supra note 2380. 2382. Docket Sheet, United States v. El-Mezain, No. 09-10560 (5th Cir. May 29, 2009) (lead 

case, appeal by el-Mezain and the Holy Land Foundation, noting that oral arguments were held on 

Sept. 1, 2011); Docket Sheet, United States v. Odeh, No. 09-10569 (5th Cir. June 1, 2009); Docket 

Sheet, United States v. Abdulqader, No. 09-10565 (5th Cir. May 29, 2009); Docket Sheet, United 

States v. Baker, No. 09-10564 (5th Cir. May 29, 2009); Docket Sheet, United States v. Elashi, No. 

09-10563 (5th Cir. May 29, 2009).
268 National Security Case Management Studies (11/14/2011)

On July 1, 2009, Judge Solis resolved a third-party matter of judicial confidentiality.2383 In preparation for the first trial, the government filed a trial brief on

May 29, 2007.2384 As an attachment, to lay the foundation for possible admissible

hearsay during trial, the government included a list of 246 individuals and organizations headed Unindicted Co-conspirators and/or Joint Venturers. 2385 Three 

organizations on the list asked the court to remove from the public record all references to them.2386 Judge Solis agreed to seal the trial brief attachment, but declined to excise other references to the organizations in the trial record.2387 Judge 

Solis sealed his order and all documents pertaining to the organizations requests

for relief.2388 Not only were the documents sealed, but their docket entries were

also omitted from the public docket sheet. One organization appealed the sealing

of the order, and, on October 20, 2010, the court of appeals ordered the order unsealed.2389 Docket entries for the other sealed documents then became public, showing only the filing dates of sealed documents.2390 No one challenged the sealing of the trial brief attachment, and it remains sealed.2391 In May 2011, however, Judge Solis granted a motion by two of the listed organizations to unseal their filings so that they could provide them to a congressional investigation.2392

On September 24, 2009, the court of appeals remanded the case back to Judge

Solis for findings on the prosecution of the foundation without representation.2393

Because the docket sheet showed the foundation to still be represented by its original attorneys, Judge Solis did not know that the foundation was not represented at 

trial until sentencing.2394 On May 24, 2010, Judge Solis appointed a University of

Texas law professor to represent the foundation pro bono and ruled that the foundation had been effectively represented de facto during the trials.2395 Appeals 

were heard on September 1, 2011.2396

 2383. Sealing Opinion, Holy Land Foundation, No. 3:04-cr-240 (N.D. Tex. July 1, 2009); see

United States v. Holy Land Foundation, 624 F.3d 685, 689 (5th Cir. 2010).

2384. Trial Brief, Holy Land Foundation, No. 3:04-cr-240 (N.D. Tex. May 29, 2007); see Holy 

Land Foundation, 624 F.3d at 688.

2385. Holy Land Foundation, 624 F.3d at 688.

2386. Id. at 688 89 & n.1; Trial Brief, supra note 2384, at 1 2.

2387. Holy Land Foundation, 624 F.3d at 689; Sealing Opinion, supra note 2383. 2388. Holy Land Foundation, 624 F.3d at 689; Sealing Opinion, supra note 2383, at 20.

2389. Holy Land Foundation, 624 F.3d 685; see Jason Trahan, Judge s Ruling: Release of List

Violated Group s Rights, Dallas Morning News, Nov. 7, 2010, at B1.

2390. N.D. Tex. Holy Land Foundation Docket Sheet, supra note 2337. 2391. Holy Land Foundation, 624 F.3d at 689 n.3; N.D. Tex. Holy Land Foundation Docket 

Sheet, supra note 2337. 2392. Order, United States v. Holy Land Foundation, No. 3:04-cr-240 (N.D. Tex. May 2, 2011).

2393. Order, United States v. El-Mezain, No. 09-10560 (5th Cir. Sept. 24, 2009).

2394. Representation Order, supra note 2338, at 12; Interview with Hon. Jorge A. Solis, Oct. 6, 2009.

2395. Representation Order, supra note 2338, at 14 19; see Trahan, supra note 2365. 2396. http://www.ca5.uscourts.gov/OralArgRecordings/09/09-10560_9-1-2011.wma (audio re- cording of oral argument).
National Security Case Management Studies (11/14/2011) 269

Challenge: Classified Evidence

Some of the government s evidence concerning the defendants was classified.2397

This included information obtained under the Foreign Intelligence Surveillance

Act (FISA) and information provided by the government of Israel.2398

Judge Fish s law clerks received security clearances.2399 Judge Fish could

store classified documents in chambers safes.2400 All defense counsel also received security clearances,2401 but they were not allowed to reveal classified information to the defendants.2402 Judge Fish had to find space in the courthouse

that could be fitted as a room for defense attorneys to store and review classified

documents.2403 A separate safe was established for each defendant.2404

Judge Solis s staff also received security clearances, including a career law

clerk, his courtroom deputy, and his court reporter.2405 Judge Solis also kept classified documents in a chambers safe.2406

 The Holy Land Foundation appealed the decision that it had been represented de facto at trial. Docket Sheet, United States v. Holy Land Foundation, No. 10-10590 (5th Cir. June 15, 2009); see 

also Docket Sheet, United States v. Holy Land Foundation, No. 10-10661 (5th Cir. June 29, 2010) 

(third-party appeal). The government appealed Judge Solis s appointment of an attorney to

represent the Holy Land Foundation. Docket Sheet, United States v. Holy Land Foundation, No. 10-10690 (5th Cir. July 13, 2010). The attorney whom Judge Fish had permitted to withdraw from 

representing the Holy Land Foundation appealed Judge Solis s characterization of her as being

less than candid with the court about whether the Holy Land Foundation was represented at the

second trial. Docket Sheet, United States v. Abu Baker, No. 10-10586 (5th Cir. June 15, 2009).

Pending resolution of the foundation s appeal is a petition to recover foundation assets in satisfaction of a judgment against Hamas for a September 4, 1997, suicide bombing in Jerusalem. Stay

Order, Holy Land Foundation, No. 3:04-cr-240 (N.D. Tex. Aug. 19, 2011); Amended Memorandum Opinion and Order, id. (Aug. 19, 2011); see Memorandum Opinion, Rubin v. Hamas, No. 1:02-cv-975 (D.D.C. Sept. 27, 2004), available at 2004 WL 2216489. 2397. Opinion at 4, Holy Land Foundation, No. 3:04-cr-240 (N.D. Tex. Nov. 2, 2006) [hereinafter Nov. 2, 2006, Opinion]; see also id. at 13 ( the defendants have thousands of pages of classified documents that they need to translate and digest in order to prepare for trial ). 2398. Nov. 2, 2006, Opinion, supra note 2397, at 3.

2399. Interview with Hon. A. Joe Fish, Oct. 6, 2009.

2400. Id.

2401. Opinion at 5 6, Holy Land Foundation, No. 3:04-cr-240 (N.D. Tex. Dec. 8, 2006) [hereinafter Dec. 8, 2006, Opinion]; Nov. 2, 2006, Opinion, supra note 2397, at 17; see Steve McGonigle, Attorney: Terror Case Not Derailed, Dallas Morning News, Feb. 17, 2006, at 1B.

2402. Dec. 8, 2006, Opinion, supra note 2401, at 3; Nov. 2, 2006, Opinion, supra note 2397, at 

17.

2403. Interview with Hon. A. Joe Fish, Oct. 6, 2009; Interview with Dep t of Justice Litig. Sec. Group Staff, Oct. 18, 2011.

Because of the level of classification of the documents with which defense attorneys worked, the secure room did not have to satisfy all of the technical specifications of a sensitive compartmented information facility (SCIF). Interview with Dep t of Justice Litig. Sec. Group Staff, Oct. 23, 2009

2404. Interview with Dep t of Justice Litig. Sec. Group Staff, Oct. 18, 2011. 2405. Interview with Hon. Jorge A. Solis, Oct. 6, 2009.

2406. Id.
270 National Security Case Management Studies (11/14/2011)

Challenge: FISA Evidence

Evidence against the defendants was based in part on wiretaps authorized by the 

FISA court.2407

In April 2005, the government mistakenly disclosed to cleared defense counsel the contents of FISA warrant applications.2408 This is not the usual procedure

for affording a defendant an opportunity to challenge evidence based on FISA

warrants.2409 The usual procedure is for the government to present the FISA warrant records to the district judge ex parte.2410 In fact, Judge Fish spent several days 

conducting an in camera review of FISA warrants leading to evidence the government sought to use in the case.

2411

Judge Fish 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.2412 The FBI asked the judge for

relief because the attorneys refused to return them.2413 Judge Fish issued an order

preserving the status quo and then ultimately granted the FBI substantially the relief requested.2414

The government also produced to defense counsel evidence obtained as a result of the FISA warrants.2415 Much of this evidence was in the form of declassified tech-cuts, which are English-language summaries of recorded conversations.2416 Defense counsel discovered some errors in the summaries, and Judge

Fish declared the errors to be disturbing, but the defendants did not present evidence of sufficient inaccuracies to require a remedy.2417

The government also declassified some of the defendants recorded conversations, and that evidence could be shared with the defendants.2418 The court approved an offer by the government to seek declassification of additional conversations, which were in Arabic, that defense counsel, who did not speak Arabic, could specifically identify.2419 Defense counsel argued that the offer was unconstitutional because it required them to reveal too much about their own conversa-

 2407. See McGonigle, supra note 2401. 2408. See id.

2409. See id.

2410. See id.

2411. Opinion at 5, United States v. Holy Land Foundation, No. 3:04-cr-240 (N.D. Tex. July

11, 2007), available at 2007 WL 2011319. 2412. Interview with Hon. A. Joe Fish, Oct. 6, 2009.

2413. Id.

2414. Id.

2415. Nov. 2, 2006, Opinion, supra note 2397, at 3.

2416. Dec. 8, 2006, Opinion, supra note 2401, at 7; Nov. 2, 2006, Opinion, supra note 2397, at 

3, 18 n.6.

2417. Opinion at 5, United States v. Holy Land Foundation, No. 3:04-cr-240 (N.D. Tex. Feb. 27, 2007), available at 2007 WL 628059. 2418. Nov. 2, 2006, Opinion, supra note 2397, at 17.

2419. Dec. 8, 2006, Opinion, supra note 2401, at 5 6; Nov. 2, 2006, Opinion, supra note 2397, at 17, 22.
National Security Case Management Studies (11/14/2011) 271

tions with their clients and their trail strategy.2420 Judge Fish overruled this objection.2421

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.2422

Challenge: Witness Security

Two trial witnesses testified under cover.2423 Judge Fish agreed to exclude the

public from the courtroom during their testimony, permit the witnesses to enter

and exit the courtroom through a non-public door, and permit the witnesses to testify under pseudonyms.2424 The defendants and their immediate family members

were permitted to see the witnesses, but members of the press and public could

only listen to an audio feed in another courtroom.2425 The witnesses identities

were not disclosed to defense counsel.2426

Judge Fish also approved a government proposal, to which the defendants did

not object, that the secret witnesses be permitted to consult counsel before answering questions under cross-examination that called on them to reveal classified

information.2427 Judge Fish observed that information that is classified under

Israeli law is also classified under American law. 2428

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.2429 Israeli law prohibits the disclosure of ISA agents identities.2430 He 

 2420. Nov. 2, 2006, Opinion, supra note 2397, at 17; see Opinion at 5, Holy Land Foundation, No. 3:04-cr-240 (N.D. Tex. July 5, 2007), available at 2007 WL 1974769 ( as of the end of February, [2007,] defense counsel had presented no classified communications to the government for

declassification ); Nov. 2, 2006, Opinion, supra note 2397, at 4 ( To the court s knowledge, the

defendants have yet to request that any specific FISA intercepts be declassified. ). 2421. Nov. 2, 2006, Opinion, supra note 2397, at 19 20.

2422. Dec. 8, 2006, Opinion, supra note 2401, at 6.

2423. Interview with Hon. A. Joe Fish, Oct. 6, 2009.

2424. Opinion, Holy Land Foundation, No. 3:04-cr-240 (N.D. Tex. July 11, 2007), available 

at 2007 WL 2004458; Opinion, id. (May 5, 2007) [hereinafter May 5, 2007, Opinion]; see Jason 

Trahan, Another Anonymous Witness Testifies in Holy Land Case, Dallas Morning News, Aug. 16, 

2007, at 17B [hereinafter Another Anonymous Witness]; Jason Trahan, Holy Land Trial Turns to

Israeli Agent, Dallas Morning News, Aug. 10, 2006, at 7B [hereinafter Israeli Agent]; Whoriskey, supra note 2341. 2425. May 5, 2007, Opinion, supra note 2424; see Trahan, Israeli Agent, supra note 2424. Judge Fish observed that an advantage of providing a space for members of the public to watch 

a live audiovisual presentation of the trial is that members of the news media can use electronic

devices without disturbing the proceedings. Interview with Hon. A. Joe Fish, Oct. 6, 2009.

2426. See Trahan, Israeli Agent, supra note 2424. 2427. May 5, 2007, Opinion, supra note 2424. 2428. Id. at 6.

2429. Opinion at 3 5, Holy Land Foundation, No. 3:04-cr-240 (N.D. Tex. July 16, 2007), available at 2007 WL 2059722; May 5, 2007, Opinion, supra note 2424; see Trahan, Another 

Anonymous Witness, supra note 2424. 2430. May 5, 2007, Opinion, supra note 2424.
272 National Security Case Management Studies (11/14/2011)

testified under the alias Avi. 2431 The other witness worked for the Israeli Defense Forces, which looks to ISA rules for the protection of its personnel.2432 He 

testified as Major Lior. 2433

Both witnesses testified under cover in the retrial as well.2434

Challenge: Jury Security

So that jurors would not have to pass through a gauntlet of reporters, Judge Fish

had them meet at a secret location from which they were shuttled to the courthouse, and they came to the courtroom floor in a secure elevator.2435 Even Judge

Fish did not know where the jurors met each morning.2436 Jurors took lunch in the

jury room.2437

Judge Solis chose not to implement special procedures for jurors in the retrial

so as not to communicate to the jurors that the case was unusual.2438

 2431. See Trahan, Another Anonymous Witness, supra note 2424. 2432. May 5, 2007, Opinion, supra note 2424; see Trahan, Israeli Agent, supra note 2424. 2433. See Trahan, Israeli Agent, supra note 2424. 2434. Interview with Hon. Jorge A. Solis, Oct. 6, 2009; see Jason Trahan, Jurors to Hear Key

Israeli Witnesses, Dallas Morning News, Oct. 20, 2008, at 1B.

2435. Interview with Hon. A. Joe Fish, Oct. 6, 2009.

2436. Id.

2437. Id.

2438. Interview with Hon. Jorge A. Solis, Oct. 6, 2009.
National Security Case Management Studies (11/14/2011) 273

Chicago

United States v. Abu Marzook 

(Amy St. Eve, N.D. Ill.)

On August 20, 2004, the United States indicted three men for helping to fund

Hamas: Muhammad Abdul Hamid Khalil Salah, Abdelhaleem Hasan Abdelraziq

Ashqar, and Mousa Mohammed Abu Marzook.2439 The U.S. District Court for the

Northern District of Illinois assigned the case to Judge Amy St. Eve, who already

was presiding over a prosecution for obstruction of justice against Ashqar.2440

The Defendants Backgrounds

Muhammad Salah

Salah was born in a Palestinian refugee camp on the West Bank, and he became a

United States citizen after he moved to the Chicago area from Jordan in 1970.2441

He was arrested on January 25, 1993, by Israeli officials at a Gaza Strip checkpoint and charged with providing aid to Hamas.2442 Police found $97,400 in his

 2439. United States v. Marzook, 435 F. Supp. 2d 778, 779 80 (N.D. Ill. 2006) (denying Ashqar s motion to suppress evidence derived from a warrantless search of his home); United States v. 

Marzook, 435 F. Supp. 2d 708, 711 12 (N.D. Ill. 2006) (denying Salah s motion to suppress his

confession); United States v. Marzook, 426 F. Supp. 2d 820 (N.D. Ill. 2006) (denying Salah s motion to dismiss count I); United States v. Abu Marzook, 412 F. Supp. 2d 913, 915 (N.D. Ill. 2006)

(granting a motion to close a hearing); United States v. Marzook, 383 F. Supp. 2d 1056, 1057

(N.D. Ill. 2005) (denying Salah s motion to dismiss count II); Boim v. Quranic Literacy Inst., 340

F. Supp. 2d 885, 894 (N.D. Ill. 2004) (related civil action); Second Superseding Indictment, United States v. Abu Marzook, No. 1:03-cr-978 (N.D. Ill. Aug. 19, 2004); see Eric Lichtblau, U.S. 

Indicts 3 on Charges of Helping Militant Group, N.Y. Times, Aug. 21, 2004, at A6; Todd Lighty

& Laurie Cohen, Hamas Probe Nearly Fell Apart, Chi. Trib., Aug. 22, 2004, Metro, at 1; Matt

O Connor & Laurie Cohen, U.S. Says Bridgeview Man, 2 Others Financed, Recruited for Terror Group, Chi. Trib., Aug. 21, 2004, News, at 1.

2440. Docket Sheet, Abu Marzook, No. 1:03-cr-978 (N.D. Ill. Oct. 9, 2003) [hereinafter N.D. Ill. Abu Marzook Docket Sheet]; see Matt O Connor, Judge Accepts Bail for Hunger-Striking Activist, Chi. Trib., Nov. 4, 2003, Metro, at 1; Palestinian Activist Faces New Charge, Chi. Trib., June 26, 2004, Metro, at 16 [hereinafter New Charge].

The indictment against Salah, Ashqar, and Marzook was filed as the second superseding indictment in the preexisting case against Ashqar.

Tim Reagan interviewed Judge St. Eve for this report in the judge s chambers on July 2, 2007. 2441. See Laurie Cohen & Noreen Ahmed-Ullah, Firing Tied to Israel Sentence, Chi. Trib., June 6, 2003, Metro, at 1; Lighty & Cohen, supra note 2439; Libby Sander, Trial Begins for 2

Charged with Aiding Terror Group, N.Y. Times, Oct. 20, 2006, at A16.

2442. Marzook, 435 F. Supp. 2d at 712, 716; Abu Marzook, 412 F. Supp. 2d at 916; Boim, 340 

F. Supp. 2d at 917; United States v. One 1997 E35 Ford Van, 50 F. Supp. 2d 789, 793 94 (N.D. Ill. 1999); see Drew Bailey, Family Fears for Israeli-Held Chicagoan, Chi. Trib., Jan. 29, 1993, Chicagoland, at 4; David Jackson, Laurie Cohen & Robert Manor, Money Trail Leads to Saudi, U.S. Says, Chi. Trib., Oct. 28, 2001, News, at 1; Libby Sander, 2 Men Cleared of Charges of Aiding Hamas Violence, N.Y. Times, Feb. 2, 2007, at A16 [hereinafter 2 Men Cleared]; Sander, supra

note 2441.
274 National Security Case Management Studies (11/14/2011)

Jerusalem YMCA hotel room.2443 In January 1995, after a trial lasting a year, he

pleaded guilty in an Israeli military court to channeling funds to Hamas s military

operation and was sentenced to five years in prison.2444 He was released in November 1997.2445

On February 10, 1995, the United States froze Salah s assets, and on July 27

the United States classified Salah as a Specially Designated Terrorist. 2446 On 

June 9, 1998, the government filed a civil forfeiture action against Salah and the

Quranic Literacy Institute, for whom Salah volunteered, alleging that they laundered money for Hamas.2447

 Also arrested was another American citizen, Muhammad Jarad, a Chicago grocer. See Bailey, 

supra; Karen Brandon & Stephen Franklin, Chicago Families Defend 2 Men, Denounce Arrests by 

Israeli Police, Chi. Trib., Feb. 1, 1993, News, at 5. Jarad was released in July 1993 after six

months in prison and a plea bargain requiring him to leave Israel after his release. See Sharman 

Stein, Grocer Tied to Terrorists Comes Home, Chi. Trib., July 28, 1993, Chicagoland, at 6. Contra

James Brooke & Elaine Sciolino, Bread or Bullets: Money for Hamas, N.Y. Times, Aug. 16, 1995, at 1 ( After six months in jail, Mr. Jarad was released without charges. ). 2443. In re Ford Van, 50 F. Supp. 2d at 794; see Jackson et al., supra note 2442 (reporting 

$96,400 found); Sander, 2 Men Cleared, supra note 2442 (reporting $97,000 found); Sander, supra note 2441 (same).

2444. Boim, 340 F. Supp. 2d at 918; see Mark Caro, Man, 41, Gets Term in Israel, Chi. Trib., Jan. 4, 1995, Metro Southwest, at 1; Jackson et al., supra note 2442; Sander, supra note 2441. 2445. In re Ford Van, 50 F. Supp. 2d at 795.

Previously a used-car dealer and a grocer in the suburban Chicago community of Bridgeview, more recently Salah drove dialysis patients to and from treatment. See Jackson et al., supra note 

2442; Sander, supra note 2441. In 2003, he was fired from his job as a part-time lecturer on computer systems at City Colleges of Chicago, because he failed to disclose his Israeli conviction on

his application. See Cohen & Ahmed-Ullah, supra note 2441; Lighty & Cohen, supra note 2439. The Chicago Public Schools also removed him from their roster of substitute teachers. See Laurie 

Cohen & Lori Oiszewski, Schools Call Use of Sub Mistake, Chi. Trib., June 8, 2003, Metro, at 3;

Lighty & Cohen, supra note 2439. 2446. Boim, 340 F. Supp. 2d at 917; In re Ford Van, 50 F. Supp. 2d at 793; see Laurie Cohen, Stephen Franklin & Sam Roe, Struggle for the Soul of Islam, Chi. Trib., Feb. 8, 2004, News, at 1;

Matt O Connor, FBI Seizes $1 Million Linked to Terrorism, Chi. Trib., June 10, 1998, News, at 1.

2447. Docket Sheet, United States v. One 1997 E35 Ford Van, No. 1:98-cv-3548 (N.D. Ill. June 9, 1998); see Cohen, et al., supra note 2446; William Gaines & Andrew Martin, Terror- Funding Probe Touches Suburban Group, Chi. Trib., Sept. 8, 1998, News, at 1; Jackson et al., supra note 2442; Lighty & Cohen, supra note 2439. The Quranic Literacy Institute s stated purpose was to translate Islamic texts. In re Ford Van, 50 F. Supp. 2d at 794; see Andrew Martin, Religious Group Denies Terrorist Link, Chi. Trib., Oct. 

20, 1998, Metro Chicago, at 4.

The U.S. District Court for the Northern District of Illinois assigned the forfeiture action to

Judge Wayne R. Andersen. Docket Sheet, supra; see Matt O Connor, Bridgeview Family Challenges Seizure, Chi. Trib., June 16, 1998, Metro Chicago, at 3. On November 20, 2009, Judge Andersen signed a stipulated resolution of the action approving the forfeiture and permitting Salah s

wife to buy from the government his forfeited share of their house. Stipulation, One 1997 E35

Ford Van, No. 1:98-cv-3548 (N.D. Ill. Nov. 20, 2009) (approving forfeiture of $1 million and a

van against the Quranic Literacy Institute and forfeiture of $1.2 million and a house against Salah); see Transcript, id. (Nov. 20, 2009, filed Jan. 26, 2010). The court of appeals denied a third- party appeal, Opinion, United States v. Kadi, No. 10-1758 (7th Cir. May 21, 2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1518 (2011).
National Security Case Management Studies (11/14/2011) 275

In 2000, Salah and the Quranic Literacy Institute were among the defendants

in a civil action for the alleged 1996 Hamas killing of David Boim.2448 The parents attached to their complaint the government s forfeiture action against Salah

and the institute.2449 On December 3, 2008, the court of appeals reversed a summary judgment against Salah, because he was in an Israeli prison between the

time that providing material support to Hamas became a crime and Boim s killing.2450

Abdelhaleem Ashqar

On February 23, 1998, Ashqar was jailed in Manhattan for refusing to testify before a grand jury investigating Hamas funding.2451 Although offered immunity, Ashqar refused to cooperate and was jailed for civil contempt.2452 Ashqar protested his jailing with a hunger strike.2453 Five months into the hunger strike, the

U.S. Court of Appeals for the Second Circuit affirmed a refusal by the district

court to release Ashqar.2454 He was released after six months in prison on a finding that continued confinement would not induce testimony.2455

On June 25, 2003, Ashqar refused to testify before a Chicago grand jury investigating American links to Middle East terrorism, and he was jailed for civil

contempt on September 5.2456 Ashqar again protested his imprisonment for con-

 2448. See supra, Prosecution of a Charity. 2449. Complaint, One 1997 E35 Ford Van, No. 1:98-cv-3548 (N.D. Ill. June 9, 1998), attached as Ex. A, Complaint, Boim v. Quranic Literacy Inst., No. 1:00-cv-2905 (N.D. Ill. May 12, 2000).

2450. Boim v. Holy Land Found., 549 F.3d 685, 691 (7th Cir. 2008), cert. denied, ___ U.S. ___, 130 S. Ct. 458 (2009); Transcript at 4, Boim, No. 1:00-cv-2905 (N.D. Ill. Mar. 6, 2009, filed

May 23, 2011) (noting dismissal of complaint against Salah); see also Opinion, id. (Oct. 27, 2010) 

(denying Salah s petition for costs), available at 2010 WL 4504876. 2451. United States v. Ashqar, 582 F.3d 819, 821 (7th Cir. 2009); In re Grand Jury Subpoena

John Doe, 150 F.3d 170, 171 (2d Cir. 1998); see Benjamin Weiser, 2 Men Jailed Over Refusal to

Aid Inquiry, N.Y. Times, Apr. 18, 1998, at B1.

Ashqar was once a Howard University professor. See Dan Eggen, Two Men Acquitted of Con- spiracy to Fund Hamas Activities in Israel, Wash. Post, Feb. 2, 2007, at A1; Stephen Franklin &

Laurie Cohen, Activist Charged with Contempt, Chi. Trib., Oct. 11, 2003, Metro, at 20; Sander, 2 

Men Cleared, supra note 2442; Sander, supra note 2441. He came to the United States on an academic fellowship. See Sander, supra note 2441. 2452. Ashqar, 582 F.3d at 821; In re Grand Jury Subpoena, 150 F.3d at 171; see Weiser, supra

note 2451. 2453. Ashqar, 582 F.3d at 821; In re Grand Jury Subpoena, 150 F.3d at 171; see Weiser, supra

note 2451. 2454. In re Grand Jury Subpoena, 150 F.3d 170; see Docket Sheet, In re Grand Jury, No. 98- 6137 (2d Cir. June 19, 1998); see also Benjamin Weiser, Appeal Lost by Inmate Who Refuses to

Testify, N.Y. Times, July 22, 1998, at B7.

2455. Ashqar, 582 F.3d at 821; In re Grand Jury Proceedings, 347 F.3d 197, 200 (7th Cir. 2003); see Court Upholds Jailing of Activist, Chi. Trib., Oct. 5, 2003, Metro, at 3 [hereinafter Jailing] (reporting that Ashqar lost about 50 pounds in prison).

2456. Ashqar, 582 F.3d at 821 22; In re Grand Jury Proceedings, 347 F.3d at 201; see Indictment, United States v. Ashqar, No. 1:03-cr-978 (N.D. Ill. Oct. 9, 2003) [hereinafter Ashqar

Indictment]; see also Jailing, supra note 2455.
276 National Security Case Management Studies (11/14/2011)

tempt with a hunger strike.2457 After the court of appeals affirmed the holding of

civil contempt against Ashqar,2458 the government indicted him for criminal contempt.2459 The U.S. District Court for the Northern District of Illinois assigned the

prosecution of Ashqar for criminal contempt to Judge Amy St. Eve,2460who released Ashqar to home detention in Virginia on bail after two months of confinement.2461 On June 24, 2004, the indictment was expanded to include a charge for

obstruction of justice.2462 Ashqar was again temporarily detained following the

2004 superseding indictment for funding Hamas.2463

Mousa Abu Marzook

Abu Marzook, the third man named in the case, but not tried, was a Palestinian

who once was the head of Hamas s political branch.2464

Abu Marzook was an American resident detained in New York as a suspected

terrorist on July 25, 1995, while returning from a five-month trip abroad.2465 During his trip he was expelled from Jordan at the United States urging after setting

up a Hamas support office in Amman.2466 Five days after his detention, Israel de-

 2457. See Jailing, supra note 2455; Franklin & Cohen, supra note 2451. 2458. In re Grand Jury Proceedings, 347 F.3d 197; see Jailing, supra note 2455. 2459. Ashqar Indictment, supra note 2456; see Ashqar, 582 F.3d at 822; see also Franklin &

Cohen, supra note 2451. 2460. N.D. Ill. Abu Marzook Docket Sheet, supra note 2440; see Matt O Connor, Palestinian 

Activist Seeks Release on Bail, Chi. Trib., Oct. 16, 2003, Metro, at 2.

2461. See O Connor, supra note 2440. 2462. Superseding Indictment, United States v. Ashqar, No. 1:03-cr-978 (N.D. Ill. June 24, 2004); see Ashqar, 582 F.3d at 822; see also New Charge, supra note 2440. 2463. See Bail Denial Stands for Man Held in Hamas Case, Chi. Trib., Aug. 24, 2004, Metro, at 4; Suspected Member of Palestinian Militant Group Pleads Not Guilty, Chi. Trib., Aug. 27, 2004, Metro, at 9.

2464. In re Extradition of Marzook, 924 F. Supp. 565, 568 (S.D.N.Y. 1996); Marzook v. Christopher, No. 1:96-cv-4107, 1996 WL 583378, at *1 (S.D.N.Y. Oct. 10, 1996); see Stephen 

Franklin, Terror Bombs Rip Hopes in Mideast, Chi. Trib., July 31, 1997, News, at 1 (identifying

Abu Marzook as Hamas s former political leader); Youssef M. Ibrahim, Hamas Political Chief

Says Group Can t Curb Terrorists, N.Y. Times, Mar. 9, 1996, at 5 ( in his first interview since his

detention, Mr. Abu Marzook, 45, a businessman, said he was the head of the political bureau of

Hamas ); see also Jason Trahan, Agent: Charity Was Part of Plot, Dallas Morning News, Aug. 8, 2007, at 1B (reporting that Abu Marzook is currently Hamas No. 2 political leader ). 2465. In re Marzook, 924 F. Supp. at 574; Marzook, 1996 WL 583378, at *1; see United States 

v. Elashyi, 554 F.3d 480, 490 (5th Cir. 2008); Steven Greenhouse, U.S. Detains Arab Tied to Militants, N.Y. Times, July 28, 1995, at 1; Neil MacFarquhar, Terror Suspect Freed by U.S., N.Y. Times, May 6, 1997, at A1 ( legal resident of the United States since 1982 ). It was reported that the suspicion of Abu Marzook was based in part on information provided

by Salah during Salah s detention and prosecution in Israel. James C. McKinley, Jr., U.S. Charges

a Palestinian in Terror Case, N.Y. Times, Aug. 9, 1995, at 5.

2466. See Greenhouse, supra note 2465; John Kifner, Alms and Arms: Tactics in a Holy War, N.Y. Times, Mar. 15, 1996, at 1; MacFarquhar, supra note 2465.
National Security Case Management Studies (11/14/2011) 277

cided to seek his extradition.2467 On May 7, 1996, the district court in Manhattan

approved extradition.2468

While his appeal was pending, Abu Marzook decided to stop challenging his

extradition, which meant he would have to be extradited or freed within 60

days.2469 A spokesperson for Hamas announced that America would be punished

if Abu Marzook were to be extradited.2470 Fearing retaliatory terrorist attacks in

Israel, Prime Minister Benjamin Netanyahu told the United States on April 2, 1997, that Israel no longer wanted Abu Marzook extradited to Israel.2471 Abu 

Marzook remained detained pending immigration exclusion proceedings, and one

month later, Jordan announced that it would accept Abu Marzook back.2472 Abu 

Marzook was deported to Jordan on May 5.2473

More than two years later, Abu Marzook and two other Hamas leaders were

arrested in Jordan following terrorist bombings in Jerusalem.2474 Jordan deported

him in 1999.2475 Abu Marzook was reported to be in Syria in 2001.2476 In 2002, 

the fugitive Abu Marzook was indicted in the Northern District of Texas for con-

 2467. See Joel Greenberg, Israel to Ask U.S. to Yield Palestinian, N.Y. Times, July 31, 1995, at 3.

2468. In re Marzook, 924 F. Supp. 565; see Marzook, 1996 WL 583378, at *2; see also Don 

Van Natta, Jr., Judge Orders Hamas Leader Extradited to Israel, N.Y. Times, May 9, 1996, at 9.

Abu Marzook became a specially designated terrorist on August 16, 1995. Elashyi, 554 F.3d at 

490, 498.

Judge Kevin Thomas Duffy also denied Abu Marzook s petition for habeas corpus. In re Mar- zook, 924 F. Supp. at 569; Docket Sheet, Abu Marzook v. Christopher, No. 1:95-cv-9799 

(S.D.N.Y. Nov. 20, 1995). Abu Marzook s appeal of this decision was dismissed on August 4, 1997, for failure to comply with the scheduling order. Docket Sheet, Abu Marzook v. Christopher, No. 96-2372 (2d Cir. May 10, 1996). On October 10, 1996, Judge Kimba M. Wood denied another 

petition for habeas corpus. Marzook, 1996 WL 583378; Docket Sheet, Abu Marzook v. Christopher, No. 1:95-cv-4107 (S.D.N.Y. May 31, 1996); see Judge Backs Extradition of a Palestinian to

Israel, N.Y. Times, Oct. 10, 1996, at 17. On February 6, 1997, the court of appeals granted Abu

Marzook s motion to withdraw his appeal of this decision. Docket Sheet, Abu Marzook v. Christopher, No. 96-2841 (2d Cir. Oct. 24, 1996).

2469. See Steven Erlanger, Palestinian Held in U.S. May Halt Fight on Extradition, N.Y. Times, Jan. 29, 1997, at A9.

2470. See Douglas Jehl, Arabs May Punish America for Extradition, Hamas Says, N.Y. Times, Jan. 30, 1997, at A3.

2471. See Stephen Franklin, Israelis Drop Claim to Hamas Leader, Chi. Trib., Apr. 4, 1997, News, at 1.

2472. See Neil MacFarquhar, Jordan to Let Terror Suspect Held in U.S. Into Kingdom, N.Y. Times, May 1, 1997, at A7; MacFarquhar, supra note 2465; Storer H. Rowley, Jordan s Hussein

Steps in, Agrees to Take Hamas Leader Jailed in U.S., Chi. Trib., May 1, 1997, News, at 3.

2473. See MacFarquhar, supra note 2465. 2474. See William A. Orme, Jr., Plot Report in Israel and Arrests in Jordan Renew Fear of

Hamas, N.Y. Times, Sept. 23, 1999, at A7.

2475. See Boim v. Quranic Literacy Inst., 127 F. Supp. 2d 1002, 1006 07 (N.D. Ill. 2001.

2476. William Glaberson, Defending Muslims in Court and Drawing Death Threats as Well as 

a High Profile, N.Y. Times, Sept. 28, 2001, at B8; see Hamas Of icial Denies Accusations, N.Y. Times, Aug. 22, 2004, at 110 (reporting Abu Marzook to be in Syria in 2004); Scott Wilson, Ha- mas to Choose Top Gaza Figure as Prime Minister, Wash. Post, Feb. 17, 2006, at A14 (identifying Abu Marzook as speaking from Syria in 2006).
278 National Security Case Management Studies (11/14/2011)

spiring with a computer business owned by his wife s cousins to fund terrorism.2477 From 2006 through 2011, identified as the deputy political bureau chief of 

Hamas, he published op-eds in the Washington Post,2478 the Los Angeles

Times,2479 and the Guardian.2480

The Main Trial

At the time of the 2004 indictment, Salah was a resident of Bridgeview, Illinois, a

suburb of Chicago; Ashqar was a resident of Alexandria, Virginia, a suburb of 

Washington, D.C.; and Marzook was believed to reside in Syria.2481 Judge St. Eve 

allowed friends and relatives of Salah and Ashqar to post nearly $4 million worth

of property to secure detention by home confinement.2482

Salah s prosecution was based, in part, on a confession to Israeli authorities, following his 1993 arrest, that he provided aid to Hamas.2483 But Salah argued

that the confession was obtained by more than 50 days of torture by the Israeli

secret police.2484 Salah also argued that his financial activity was humanitarian, intended to aid the Palestinian people and not to support terrorism.2485 Judge St. Eve ruled on June 8, 2006, that most of Salah s confession statements were admissible.2486

Ashqar s prosecution was based, in part, on recorded telephone conversations 

he had with Hamas officials and records seized from his home without a warrant

 2477. United States v. Elashi, 440 F. Supp. 2d 536 (N.D. Tex. 2007) (denying co-defendants

post-trial motions for acquittal); Docket Sheet, United States v. Elashi, No. 3:02-cr-52 (N.D. Tex. Feb. 20, 2002); see supra, Prosecution of a Charity ; Lichtblau & Miller, supra note 2352; Simpson, supra note 2352. 2478. Mousa Abu Marzook, Op-Ed, What Hamas Is Seeking, Wash. Post, Jan. 31, 2006, at

A17 (concerning Hamas s victory in Palestinian elections). 2479. Mousa Abu Marzook, Op-Ed, Palestinian Statehood: What Is the U.N. s Role?, L.A. Times, June 12, 2011, at 30 (promoting a U.N. resolution recognizing a Palestinian state); Mousa

Abu Marzook, Op-Ed, Hamas Speaks, L.A. Times, Jan. 6, 2009, at 15 (inviting the President to

visit a Palestinian refugee camp); Mousa Abu Marzook, Op-Ed, Hamas Stand, L.A. Times, July

10, 2007 (concerning the release of a BBC journalist).

2480. Mousa Abu Marzook, Op-Ed, Hamas Is Ready to Talk, London Guardian, Aug. 16, 2007, at 34 (extolling the virtues of Hamas s governing). 2481. See Lichtblau, supra note 2439; Lighty & Cohen, supra note 2439; Matt O Connor, Hamas-Case Men Sent Home, Chi. Trib., Sept. 16, 2004, Metro, at 3; O Connor & Cohen, supra

note 2439. 2482. See O Connor, supra note 2481. 2483. Boim v. Quranic Literacy Inst., 340 F. Supp. 2d 885, 918 19 (N.D. Ill. 2004); see Michael Higgins, Israeli Files Sought in Terrorism Case, Chi. Trib., Dec. 13, 2005, Metro, at 3;

Sander, 2 Men Cleared, supra note 2442; Sander, supra note 2441. 2484. See Sander, 2 Men Cleared, supra note 2442; Sander, supra note 2441. 2485. See Eggen, supra note 2451; Jackson et al., supra note 2442; Sander, 2 Men Cleared, supra note 2442; Sander, supra note 2441. 2486. United States v. Marzook, 435 F. Supp. 2d 708 (N.D. Ill. 2006); see Jeff Coen, Hamas 

Suspect Loses on Key Issue, Chi. Trib., June 9, 2006, Metro, at 1.
National Security Case Management Studies (11/14/2011) 279

while he was a graduate student at the University of Mississippi in 1993.2487 Judge 

St. Eve denied Ashqar s motion to suppress evidence seized, because the search

was reasonable and in good faith, and exclusion would not deter such searches, as

such searches later became legal.2488

The trial began on October 12, 2006.2489 The jury began to deliberate on January 11, 2007,2490 and on February 1, the jury acquitted Salah and Ashqar of aiding 

terrorists.2491 The defendants were convicted, however, of obstructing justice, and

Ashqar was also convicted of criminal contempt.2492 Judge St. Eve sentenced Salah to one year and nine months in prison,2493

and she sentenced Ashqar to eleven

years and three months.2494 The court of appeals affirmed.2495 Salah was released

from prison on April 10, 2009.2496

Challenge: Foreign Government Evidence

Salah sought to discover Israeli police documents to support his claim that his

Israeli confession was obtained by torture and coercion.2497 Judge St. Eve sug-

 2487. Marzook, 435 F. Supp. 2d at 780 81; see Michael Higgins, ACLU Filing Challenges

Hamas-Case Evidence, Chi. Trib., Jan. 11, 2006, Metro, at 6; Sander, 2 Men Cleared, supra note 

2442. 2488. Marzook, 435 F. Supp. 2d at 788 94.

2489. Minute Entry, United States v. Abu Marzook, No. 1:03-cr-978 (N.D. Ill. Oct. 12, 2006).

2490. Minute Entry, id. (Jan. 11, 2007); see Jury Instructions, id. (Jan. 12, 2007); see also

Azam Ahmed, Deliberations Begin in Hamas Case, Chi. Trib., Jan. 12, 2007, Metro, at 8.

2491. Minute Entry, Abu Marzook, No. 1:03-cr-978 (N.D. Ill. Feb. 1, 2007); see United States

v. Ashqar, 582 F.3d 819, 822 (7th Cir. 2009); see also Rudolph Bush & Jeff Coen, Two Found Not 

Guilty of Supporting Hamas, Chi. Trib., Feb. 2, 2007, News, at 1; Eggen, supra note 2451; Sander, 2 Men Cleared, supra note 2442. 2492. Ashqar, 582 F.3d at 822; see Bush & Coen, supra note 2491; Eggen, supra note 2451; 

Sander, 2 Men Cleared, supra note 2442. Salah s conviction for obstruction of justice was for false answers to interrogatories in the

Boims civil case against him. Minute Entry, Abu Marzook, No. 1:03-cr-978 (N.D. Ill. June 25, 2007); see Bush & Coen, supra note 2491; Libby Sander, American Gets Prison for Lying About 

Hamas, N.Y. Times, July 12, 2007, at A17 [hereinafter American Gets Prison].

2493. Judgment, Abu Marzook, No. 1:03-cr-978 (N.D. Ill. July 19, 2007); see Michael Higgins, 21-Month Sentence for Salah, Chi. Trib., July 12, 2007, Metro, at 1; Sander, American Gets

Prison, supra note 2492. 2494. Judgment, Abu Marzook, No. 1:03-cr-978 (N.D. Ill. Nov. 21, 2007); see Ashqar, 582

F.3d at 822; see also Ex-Professor Is Sentenced in a Hamas Case, N.Y. Times, Nov. 22, 2007, at

A23.

2495. Ashqar, 582 F.3d at 821, 827, cert. denied, ___ U.S. ___, 130 S. Ct. 1722 (2010).

Judge St. Eve denied Ashqar s habeas petition alleging ineffective assistance of counsel. Opinion, Ashqar v. United States, No. 1:11-cv-569 (N.D. Ill. Sept. 29, 2011), available at 2011 WL

4540729. 2496. http://www.bop.gov (reg. no. 21677-424).

On September 9, 2011, Judge St. Eve terminated Salah s supervised release seven months early. Minute Entry, Abu Marzook, No. 1:03-cr-978 (N.D. Ill. Sept. 20, 2011). Salah was diagnosed

with stage four kidney cancer in June 2010. Motion, id. (Sept. 13, 2011).

2497. Salah s Discovery Motion, Abu Marzook, No. 1:03-cr-978 (N.D. Ill. Dec. 12, 2005); see 

Higgins, supra, note 2483.
280 National Security Case Management Studies (11/14/2011)

gested that he follow rogatory-letter procedures, but Salah ultimately relied on

testimony from Israeli police officers.2498

Challenge: Witness Security

To prove that Salah s Israeli confession was obtained by torture and coercion, Salah sought testimony from two agents of the Israel Security Agency (ISA).2499 It 

was unprecedented for such officers to provide testimony outside of Israel.2500

Judge St. Eve agreed to close the hearing on Salah s motion to suppress his

confession while the ISA agents testified.2501 The government of Israel waived its

secret classification of the agents testimony as to defense attorneys and Salah.2502

All other persons in court during the testimony had security clearances.2503

To protect the agents identities, they were permitted to use private entrances

to the courthouse and the courtroom.2504 The agents and their Israeli attorneys

were identified in court documents by code names.2505 But Judge St. Eve 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.2506

The hearing was open for the testimony of other witnesses, including Israeli

police officers.2507

 2498. Interview with Hon. Amy St. Eve, July 2, 2007; see 28 U.S.C. § 1781; Fed. R. Civ. P. 28(b).

2499. United States v. Abu Marzook, 412 F. Supp. 2d 913, 916 (N.D. Ill. 2006); see Michael 

Higgins, Terror Funds Hearing May Need Special Rules, Chi. Trib., Dec. 20, 2005, Metro, at 3.

The ISA is an intelligence agency for the State of Israel that provides for Israel s internal security. Abu Marzook, 412 F. Supp. 2d at 916. It is also known as the General Security Service. United States v. Marzook, 435 F. Supp. 2d 708, 712 (N.D. Ill. 2006); Abu Marzook, 412 F. Supp. 2d at 916. Israel maintains the secrecy of the true identities of the ISA agents, as well as identifying characteristics. Abu Marzook, 412 F. Supp. 2d at 918.

2500. Abu Marzook, 412 F. Supp. 2d at 918 ( Israel has never before permitted ISA agents to

give live testimony in the United States. ); Government s Time Extension Motion at 2, Abu Mar- zook, No. 1:03-cr-978 (N.D. Ill. Aug. 19, 2004) ( The appearance of the ISA operational personnel as witnesses in a proceeding outside the State of Israel is unprecedented. ); see Michael Higgins, supra note 2499 (quoting the government s brief). 2501. Marzook, 435 F. Supp. 2d at 714; Abu Marzook, 412 F. Supp. 2d 913; see Michael Higgins, Ruling Backs Closed Court, Chi. Trib., Feb. 1, 2006, Metro, at 3.

2502. Abu Marzook, 412 F. Supp. 2d at 917; see Minute Entry at 4, Abu Marzook, No. 1:03-cr- 978 (N.D. Ill. Aug. 29, 2006) [hereinafter Aug. 29, 2006, Abu Marzook Minute Entry] ( [T]hese

ISA agents and their families face a serious, legitimate risk of grave danger if they are publicly

identified. . . . Terrorist organizations have targeted ISA agents. ). 2503. Abu Marzook, 412 F. Supp. 2d at 919.

2504. Id. at 928; see Higgins, supra note 2501. 2505. See Michael Higgins, In Chicago Court, Israelis Deny 93 Torture of Bridgeview Man, Chi. Trib., May 1, 2006, News, at 12.

2506. Abu Marzook, 412 F. Supp. 2d at 927 28.

2507. Id. at 928; see Higgins, supra note 2501. The hearing was conducted intermittently from March 3 to April 27, 2006. N.D. Ill. Abu Mar- zook Docket Sheet, supra note 2440.
National Security Case Management Studies (11/14/2011) 281

For the trial, Judge St. Eve again permitted the ISA agents to testify using

pseudonyms in a closed courtroom.2508 Again Judge St. Eve permitted the witnesses to use private entrances.2509 She permitted the defendants immediate family members to remain in the courtroom during the agents testimony.2510 Because 

of the presence of the family members and the jury, Judge St. Eve agreed to let

the agents testify in light disguise, so long as the disguise did not interfere with

the jurors ability to judge their credibility.2511 But the agents ultimately decided

to testify without disguise, because of the limitations on who would be in the

courtroom to see them.2512 Judge St. Eve decided that the rest of the trial would be 

public.2513

Judge St. Eve undertook measures to keep the closed portion of the trial as

open as possible. First, she 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.2514 Second, to disguise from the jury that the

courtroom was closed, Judge St. Eve told the jurors that the camera was a precaution in case of an overflow crowd and allowed the witnesses to use the private entrance before the jury was brought in.2515

Challenge: Classified Evidence

A significant challenge in this case was application of the Classified Information

Procedures Act (CIPA)2516 to a substantial amount of classified evidence.2517

Classified documents were stored in a safe in Judge St. Eve s chambers, to which

only the judge and a cleared court reporter had the combination.2518 For hearings

concerning classified documents, the court reporter used a laptop provided by

classified information security officers, which was also stored in the safe.2519

 2508. Aug. 29, 2006, Abu Marzook Minute Entry, supra note 2502, at 2 3; see Rudolph Bush, Hamas-Case Defense Says U.S. Conspiring with Israel, Chi. Trib., Aug. 30, 2006, Metro, at 6

[hereinafter Conspiring with Israel]; Rudolph Bush, Torture of Salah Denied, Chi. Trib., Nov. 2, 2006, Metro, at 3 [hereinafter Torture Denied]; Eggen, supra note 2451. 2509. Aug. 29, 2006, Abu Marzook Minute Entry, supra note 2502, at 6.

2510. Id. at 4; see Bush, Conspiring with Israel, supra note 2508. 2511. Aug. 29, 2006, Abu Marzook Minute Entry, supra note 2502, at 5 6; see Bush, Conspiring with Israel, supra note 2508. 2512. Interview with Hon. Amy St. Eve, July 2, 2007.

2513. Aug. 29, 2006, Abu Marzook Minute Entry, supra note 2502, at 5; see Bush, Conspiring 

with Israel, supra note 2508. 2514. Aug. 29, 2006, Abu Marzook Minute Entry, supra note 2502, at 4 5; see Bush, Conspiring with Israel, supra note 2508; Bush, Torture Denied, supra note 2508. 2515. Aug. 29, 2006, Abu Marzook Minute Entry, supra note 2502, at 5 6.

2516. 18 U.S.C. app. 3; see Reagan, supra note 173. 2517. Interview with Hon. Amy St. Eve, July 2, 2007.

2518. United States v. Abu Marzook, 412 F. Supp. 2d 913, 924 (N.D. Ill. 2006) (describing

documents as kept under seal); Interview with Hon. Amy St. Eve, July 2, 2007 (noting that there

are two cleared court reporters in the Chicago courthouse).

2519. Interview with Hon. Amy St. Eve, July 2, 2007.
282 National Security Case Management Studies (11/14/2011)

Over the course of this litigation, two of Judge St. Eve s law clerks sought security clearances.2520 The clearance process took a substantial fraction of their tenures as law clerks, so Judge St. Eve handled classified issues without law clerk

assistance.2521

Defense counsel elected not to seek security clearances, so Judge St. Eve 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.2522

Deputy marshals electronically monitored for surveillance conferences and

hearings in which classified information was discussed.2523

Judge St. Eve required the government to decide what documents admitted into evidence at Salah s suppression hearing could be released to the public within

seven business days of the documents admissions, and she required the government to decide within seven business days of the hearing transcript s preparation

which portions of the transcript could be released to the public.2524

For the trial, the government proposed the substitution of five admissions in

lieu of classified evidence concerning Salah s interrogation by ISA agents.2525 For 

example, the government offered to admit that the ISA authorized its agents to use 

hoods, handcuffs, and shackles during interrogations.2526 Judge St. Eve approved

these evidence substitutions.2527 She 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.2528 As the trial unfolded, Salah cross- examined the agents extensively, and the vast majority of the topics covered did

not involve classified information.2529

To explain to the jury why some topics were being skirted during examination 

of the witnesses, Judge St. Eve 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

 2520. Id.

2521. Id.

2522. Id.

2523. Id.

2524. United States v. Abu Marzook, 412 F. Supp. 2d 913, 928 (N.D. Ill. 2006); see Higgins, 

supra note 2501. 2525. United States v. Salah, 462 F. Supp. 2d 915, 916 18 (N.D. Ill. 2006).

2526. Id. at 917.

2527. Id. at 925.

2528. Id. at 919 24.

2529. Id. at 925.
National Security Case Management Studies (11/14/2011) 283

particular witness regarding the underlying classified matters set forth in these admissions. You must decide what weight, if any, to give to these admissions.2530 Challenge: Classified Arguments

The government moved for secrecy in the taking of testimony from agents of the

ISA.2531 To support its motion, the government presented a classified affidavit 

from the FBI s Assistant Director for Counterintelligence, which was stored in

Judge St. Eve s safe.2532

Challenge: Classified Opinion

Judge St. Eve s 138-page public opinion denying Salah s motion to suppress his

Israeli confession

2533

occupies 70 pages of the Federal Supplement.2534 Nineteen 

portions of the opinion are redacted.2535 The parties received unredacted copies, and the unredacted original is stored in Judge St. Eve s safe.2536

Challenge: Jury Security

To protect jurors safety, the government moved for an anonymous jury.2537 Defense counsel argued that an anonymous jury is an improper message to jurors

that the defendants are dangerous.2538 Observing that the defendants were not in

custody, had strictly adhered to the terms of their release, and otherwise posed no

danger, Judge St. Eve denied the government s motion.2539

 2530. Id. at 924.

2531. See Higgins, supra note 2501. 2532. Interview with Hon. Amy St. Eve, July 2, 2007; see Higgins, supra note 2501. 2533. Opinion, United States v. Abu Marzook, No. 1:03-cr-978 (N.D. Ill. June 8, 2006).

2534. United States v. Marzook, 435 F. Supp. 2d 708, 708 77 (N.D. Ill. 2006).

2535. Id. at 715 16, 718, 721, 726, 746 47, 750 51,758, 767.

2536. Interview with Hon. Amy St. Eve, July 2, 2007.

2537. Government s Anonymous Jury Motion, Abu Marzook, No. 1:03-cr-978 (N.D. Ill. June

27, 2006); see Jeff Coen, Anonymous Jury Urged in Hamas Funds Case, Chi. Trib., June 28, 2006, Metro, at 4.

2538. Ashqar s Response to Government s Anonymous Jury Motion, Abu Marzook, No. 1:03- cr-978 (N.D. Ill. July 19, 2006); Salah s Response to Government s Anonymous Jury Motion, id.

(July 18, 2006); see Jeff Coen, Hamas-Case Motion Challenged, Chi. Trib., June 29, 2006, Metro, at 3.

2539. Minute Entry, Abu Marzook, No. 1:03-cr-978 (N.D. Ill. Aug. 8, 2006); Interview with

Hon. Amy St. Eve, July 2, 2007; see Rudolph Bush, Hamas-Case Jury To Be Named, Chi. Trib., Aug. 10, 2006, Metro, at 3.
284 National Security Case Management Studies (11/14/2011)

Giving State Secrets to Lobbyists

United States v. Franklin 

(T.S. Ellis III, E.D. Va.)2540

On August 27, 2004, the CBS Evening News reported that the FBI was investigating the possible passing of classified policy papers on Iran by a Defense Department analyst to the government of Israel through two men who worked for the

American Israel Public Affairs Committee (AIPAC).2541 On the following day, The Washington Post identified the analyst as Larry Franklin, an Iran specialist, who formerly worked for the Defense Intelligence Agency.2542

It was reported that for several years the FBI had been investigating not the

analyst but two men who worked at AIPAC.2543 The FBI interviewed the two men 

on the day that the story broke on the CBS Evening News as well as twice earlier

that month.2544 On August 31, the Los Angeles Times reported on the August 27

interviews, identifying the men as Steve Rosen and Keith Weissman,2545and on

the following day the New York Times reported that the men were suspected of

passing classified information to Israel.2546

When the story broke, Franklin was cooperating with the government in its

investigation of Rosen and Weissman.2547 It was reported that Franklin was seen

 2540. An appeal was heard by Fourth Circuit Judges Robert B. King, Roger L. Gregory, and

Dennis W. Shedd. 

2541. United States v. Rosen, 471 F. Supp. 2d 651, 653 (E.D. Va. 2007); United States v. Rosen, 447 F. Supp. 2d 538, 552 53 (E.D. Va. 2006); CBS Evening News (CBS television broadcast

Aug. 27, 2004).

2542. Bradley Graham & Thomas E. Ricks, FBI Probe Targets Pentagon Official, Wash. Post, 

Aug. 28, 2004, at A1; see Thomas E. Ricks & Robin Wright, Analyst Who Is Target of Probe

Went to Israel, Wash. Post, Aug. 29, 2004, at A1 (reporting that Franklin served in the Air Force

Reserve, rising to colonel, including service in Israel).

2543. David Johnston & Eric Schmitt, F.B.I. Is Said to Brief Pentagon Bosses on Spy Case, N.Y. Times, Aug. 31, 2004, at A14; Walter Pincus, A Look at the Dropping of Espionage

Charges, Wash. Post, May 5, 2009, at A19 the [defense] lawyers said that Rosen and Weissman

were under government surveillance, including telephone wiretaps, for five years, from 1999 to

2004 ); Susan Schmidt & Robin Wright, Leak Probe More Than 2 Years Old, Wash. Post, Sept. 2, 

2004, at A6; Warren P. Strobel, Spy Probe Focuses on More Civilians, Miami Herald, Aug. 29, 2004, at 1A.

2544. United States v. Rosen, 474 F. Supp. 2d 799, 800 (E.D. Va. 2007); see David Johnston, F.B.I. Interviews 2 Suspected of Passing Secrets to Israel, N.Y. Times, Sept. 1, 2004, at A15.

2545. Richard B. Schmitt & Tyler Marshall, FBI Questions Israeli Lobbyists in Spying Probe, L.A. Times, Aug. 31, 2004, at 12.

Rosen was AIPAC s director of foreign policy issues and Weissman was a senior Middle East

analyst. E.g., United States v. Rosen, 487 F. Supp. 2d 721, 725 (E.D. Va. 2007).

2546. Rosen, 471 F. Supp. 2d at 653; Rosen, 447 F. Supp. 2d at 553; Johnston, supra note 

2544. 2547. See David Johnston & Eric Schmitt, Pentagon Analyst Was Cooperating When Israel

Spy Case Became Public, N.Y. Times, Aug. 30, 2004, at A12; Pincus, supra note 2543 ( Franklin, wearing a recording device, met with Weissman and induced him into believing that he had to
National Security Case Management Studies (11/14/2011) 285

joining a monitored lunch meeting Rosen and Weissman had with an Israeli embassy official in 2003.2548 An investigation of Franklin revealed that he had given

classified information to Rosen and Weissman and he had improperly stored classified information in his West Virginia home.2549 His security clearance was suspended in June 2004.2550 In July, Franklin cooperated in a recorded sting meeting

with Weissman in which Franklin gave the lobbyist classified information.2551

Weissman passed on the information to Rosen, and then they passed it on to the

Israeli embassy and a reporter for the Washington Post.2552

On May 3, 2005, the government filed a sealed criminal complaint against

Franklin, who surrendered to authorities the next day.2553 The government filed a

sealed indictment against Franklin on May 26 and a superseding indictment on

August 4.2554 The U.S. District Court for the Eastern District of Virginia assigned

the case to Judge T.S. Ellis III.2555 Franklin pleaded guilty on October 5 to conspiracy to communicate secret information and wrongfully keeping classified

documents at home, saying that his motive in passing classified information to

lobbyists was to create a back channel of influence over President Bush s policies

on confronting Iran.2556 On January 20, 2006, Judge Ellis provisionally sentenced

Franklin to 12 years and seven months in prison, leaving room for an adjustment

after the completion of Franklin s assistance in a trial against Rosen and Weiss-

 communicate certain information right away in order to save innocent lives, according to the [defense] lawyers. ). 2548. Michael Isikoff & Mark Hosenball, And Now a Mole?, Newsweek, Sept. 6, 2004, at 50;

David Johnston & David E. Sanger, Pro-Israel Lobby Said to Have Been Inquiry Target, N.Y. Times, Sept. 3, 2004, at A16.

2549. See Jerry Markon, Defense Analyst Charged With Sharing Secrets, Wash. Post, May 5, 2005, at A1 [hereinafter Defense Analyst Charged]; see also Jerry Markon, Defense Worker Charged Again in Secrecy Case, Wash. Post, May 25, 2005, at A4 (reporting that it had been

known since 1997 that Franklin improperly took classified documents home).

2550. See Markon, Defense Analyst Charged, supra note 2549. 2551. United States v. Rosen, 445 F. Supp. 2d 602, 609 10 (E.D. Va. 2006); see Joel Brinkley, 

Lobbyist in Espionage Inquiry Says That He Broke No Laws, N.Y. Times, May 22, 2005, at 130;

Jerry Markon, FBI Tapped Talks About Possible Secrets, Wash. Post, June 3, 2005, at A7 (reporting that Franklin warned Rosen and Weissman that Iranian agents were planning attacks against

American soldiers and Israeli agents in Iraq ). 2552. Rosen, 445 F. Supp. 2d at 609 10; see Markon, supra note 2551. 2553. Docket Sheet, United States v. Franklin, No. 1:05-cr-225 (E.D. Va. May 26, 2005)

[hereinafter E.D. Va. Docket Sheet]; see David Johnston & Eric Lichtblau, Analyst Charged with

Disclosing Military Secrets, N.Y. Times, May 5, 2005, at A1.

2554. E.D. Va. Docket Sheet, supra note 2553. 2555. Id.

Tim Reagan interviewed Judge Ellis for this report in the judge s chambers on September 5, 2007.

2556. United States v. Rosen, 599 F. Supp. 2d 690, 693 & n.4 (E.D. Va. 2009); Rosen, 445 F. Supp. 2d at 608 n.3; E.D. Va. Docket Sheet, supra note 2553; see Eric Lichtblau, Pentagon Analyst Admits He Shared Secret Information, N.Y. Times, Oct. 6, 2005, at A21; Jerry Markon, Defense Analyst Guilty in Israeli Espionage Case, Wash. Post, Oct. 6, 2005, at A2.
286 National Security Case Management Studies (11/14/2011)

man.2557 Franklin s sentence ultimately was reduced, and he was ordered released

on May 31, 2010.2558

AIPAC fired Rosen and Weissman on March 21, 2005.2559 The August 4 superseding indictment added Rosen and Weissman as defendants.2560 The indictment alleged a conspiracy that began in 1999 when Rosen and Weissman had 

conversations with an unnamed foreign official (FO-1) about terrorist activities in

Asia.2561 In 2000, Rosen and Weissman allegedly met with an unnamed government official (USGO-1),

who had access to classified information relating to U.S. strategy pertaining to a certain

Middle East country. Following this meeting, Rosen allegedly had a conversation with a

member of the media in which he communicated classified information relating to the

U.S. government s deliberations on its strategy towards that particular Middle Eastern

country.

The next overt act in furtherance of the alleged conspiracy occurred over one year

later, when, on January 18, 2002, Rosen met with another U.S. government official

(USGO-2). After this meeting, Rosen prepared a memorandum referencing classified information provided by USGO-2 to a foreign national. Rosen met again with USGO-2 on

March 12, 2002 and discussed classified information regarding Al-Qaeda. Rosen allegedly disclosed this classified information to a fellow AIPAC employee the next day, and to

another foreign embassy official (FO-2) the day after that.2562 According to the indictment, Rosen met Franklin in 2002.2563 Franklin allegedly disclosed to Rosen and Weissman, on February 12, 2003, information about 

a draft policy document concerning a certain Middle Eastern country. 2564 Rosen 

allegedly passed information about the document to foreign officials, journalists, and a think-tank fellow.2565 Weissman allegedly participated in several of these

conversations.2566

Judge Ellis ruled that at trial the government would have to prove that the information passed by the defendants qualified as national defense information

 2557. E.D. Va. Docket Sheet, supra note 2553; see David Johnston, Former Military Analyst

Gets Prison Term for Passing Information, N.Y. Times, Jan. 21, 2006, at A14.

2558. E.D. Va. Docket Sheet, supra note 2553 (noting sentencing order on May 26, 2010); see

http://www.bop.gov (reg. no. 70425-083).

2559. United States v. Rosen, 487 F. Supp. 2d 721, 725 26 (E.D. Va. 2007); see David Johnston, Israeli Lobby Reportedly Fires 2 Top Aides in Spying Inquiry, N.Y. Times, Apr. 21, 2005, at

A14.

Rosen and Weissman claimed that the government pressured AIPAC to fire them and stop paying their legal fees or AIPAC itself would face prosecution. Rosen, 487 F. Supp. 2d at 724 25. 

Judge Ellis ruled that this would be a violation of the Sixth Amendment, except that it clearly had

no negative effect on the defendants very able representation by defense counsel. Id. at 726 36.

2560. E.D. Va. Docket Sheet, supra note 2553; see David Johnston, Israel Lobbyists Facing

Charges in Secrets Case, N.Y. Times, Aug. 5, 2005, at A1.

2561. Rosen, 599 F. Supp. 2d at 693; Rosen, 445 F. Supp. 2d at 608.

2562. Rosen, 445 F. Supp. 2d at 608 09; see David Johnston & James Risen, U.S. Diplomat Is

Named in Secrets Case, N.Y. Times, Aug. 18, 2005, at A22 (identifying USGO-2).

2563. Rosen, 445 F. Supp. 2d at 609.

2564. Id.

2565. Id.

2566. Id.
National Security Case Management Studies (11/14/2011) 287

(NDI).2567 To qualify as NDI, information must be closely held by the government and potentially damaging to national security if disclosed. 2568 It is important to recognize that NDI and classified material may not be coextensive

sets. 2569 In short, the government designates what information is labeled and

treated as classified, while a court or jury determines what information qualifies

as NDI . . . . 2570

Rosen and Weissman s trial was originally scheduled to begin in April

2006,2571 but it was postponed several times as the court dealt with constitutional

issues and the handling of classified information.2572 Judge Ellis ruled on August 

10, 2006, that prosecution of Rosen and Weissman under the 1917 Espionage Act

was constitutional.2573

In light of Judge Ellis s other pretrial rulings, the government dismissed the

indictment against Rosen and Weissman on May 1, 2009, approximately ten years 

after launching the investigation.2574

Challenge: Classified Evidence

A large amount of classified evidence was at issue in this case.2575 Judge Ellis s

career law clerk has a top-secret security clearance, and she can help the judge

 2567. United States v. Rosen, 599 F. Supp. 2d 690, 694 95 (E.D. Va. 2009) (enforcing a subpoena for expert testimony from the government s former classification czar); United States v. Rosen, 471 F. Supp. 2d 651, 652 (E.D. Va. 2007); see 18 U.S.C. § 793.

2568. United States v. Rosen, 487 F. Supp. 2d 703, 705 n.1 (E.D. Va. 2007).

2569. Id.

2570. Rosen, 599 F. Supp. 2d 690; see Walter Pincus, Opinion Could Dampen Zeal to Classify

Government Information, Wash. Post, Feb. 23, 2009, at A17; see also Too Secret?, supra note 190

(defense expert and former head of the National Archives Information Security Oversight Office sometimes known as the classification czar opining that what these individuals were accused of passing along, clearly in my mind, did not meet the qualifications or standards for classification ). 2571. See Jerry Markon, Pentagon Analyst Given 121⁄2 Years in Secrets Case, Wash. Post, Jan. 21, 2006, at A1.

2572. See Jerry Markon, Classified Documents Allowed in Espionage Trial, Wash. Post., Feb. 25, 2009, at A4 [hereinafter Classified Documents Allowed] (reporting a tentative trial date of Apr. 

21, 2009); Jerry Markon, Judge Rejects Dismissal of Pro-Israel Lobbyists Case, Wash. Post, Aug. 11, 2006, at A5 [hereinafter Judge Rejects Dismissal]; Pincus, supra note 2543 ( Seven separate

trial dates were set and postponed during the past 31⁄2 years before the date of June 2[, 2009,] was

established. ); Pincus, supra note 2570 (reporting a tentative trial date of Apr. 21, 2009); Richard

B. Schmitt, Lobbyists Lawyers Say Rice Leaked Information, L.A. Times, Apr. 22, 2006, at 24

(reporting that the trial was postponed from May 23, 2006, to Aug. 7, 2006); Richard B. Schmitt, Lobbyists to Stand Trial in Spy Case, L.A. Times, Aug. 11, 2006, at 13 [hereinafter Lobbyists to

Stand Trial] (reporting that the trial was postponed indefinitely from Aug. 7, 2006).

2573. See Markon, Judge Rejects Dismissal, supra note 2572; Schmitt, Lobbyists to Stand Trial, supra note 2572. 2574. E.D. Va. Docket Sheet, supra note 2553; see Neil A. Lewis & David Johnston, U.S. 

Moves to End Secrets Case Against Israel Lobbyists, N.Y. Times, May 2, 2009, at A11; Pincus, supra note 2543. 2575. United States v. Rosen, 557 F.3d 192, 195 (4th Cir. 2009).
288 National Security Case Management Studies (11/14/2011)

deal with issues concerning classified information.2576 One of Judge Ellis s temporary law clerks, however, was a Canadian citizen, and so he was not eligible for 

a security clearance.2577

Defense attorneys and witnesses with appropriate security clearances were

able to review classified evidence in a sensitive compartmented information facility (SCIF) designated for their use in the courthouse.2578

Pursuant to the Classified Information Procedures Act (CIPA),2579 the court of

appeals heard the government s interlocutory appeal concerning the admissibility

of information in two documents, identified as an FBI Report and an Israeli

Briefing Document. 2580 In an opinion by Judge Robert B. King, joined by Judges

Roger L. Gregory and Dennis W. Shedd, the appellate court affirmed Judge Ellis s rulings.2581

As required by section 5(a) of CIPA, the defendants gave notice of their intent 

to introduce classified evidence at trial.2582 Pursuant to section 6 of CIPA, Judge

Ellis determined that a substantial volume of the classified information was indeed relevant and admissible. 2583 As permitted by section 6(c)(1), the government proposed substitutions for the classified evidence by redacting and otherwise summarizing classified information in the original documents. 2584 Judge 

Ellis

ruled that, although some of the government s proposed redactions were acceptable, other

such redactions would not afford the defendants the same opportunity to defend themselves as would the admission of the undredacted documents containing classified information. 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. The court thus directed the parties to fashion substitutions for the classified documents in accordance with the oral rulings it made during the hearing. Thereafter, the court 

 2576. Interview with Hon. T.S. Ellis III, Sept. 5, 2007.

2577. Id.; see 28 C.F.R. § 17.41(b) ( Eligibility for access to classified information is limited

to United States citizens . . . . ). 2578. E.D. Va. Docket Sheet, supra note 2553; see Reagan, supra note 173, at 19 (describing

SCIFs).

2579. 18 U.S.C. app. 3; see Reagan, supra note 173 (discussing CIPA).

2580. Rosen, 557 F.3d at 196; see Markon, Classified Documents Allowed, supra note 2572

( Sources familiar with the documents said the FBI report was on the 1996 Khobar Towers bombing in Saudi Arabia that killed 19 Americans and that the other paper describes a briefing by the

Israeli government. ). 2581. Rosen, 557 F.3d at 194, 199 200; see Neil A. Lewis, Ex-Lobbyists in U.S. Case of Espionage Win a Round, N.Y. Times, Feb. 25, 2009, at A15; Markon, Classified Documents Allowed, supra note 2572. For this report, Tim Reagan interviewed Judge King in the judge s Richmond chambers on

March 19, 2008; Judge Shedd by telephone on September 3, 2009; and Judge Gregory in the

judge s chambers on September 25, 2009. 2582. Rosen, 557 F.3d at 195 ( a large volume of classified evidence ); see 18 U.S.C. app. 3

§ 5(a).

2583. Rosen, 557 F.3d at 195; see 18 U.S.C. app. 3 § 6.

2584. Rosen, 557 F.3d at 196; see 18 U.S.C. app. 3 § 6(c)(1).
National Security Case Management Studies (11/14/2011) 289

entered an order adopting the parties agreed-to substitutions, over the government s objection.2585

Judge Ellis determined that it might be appropriate to introduce classified evidence at trial using the silent witness rule. 2586 The silent witness rule permits

some evidence to be presented to the judge, the jury, and the parties, but not to the 

public.2587 It is a partial closing of the trial.2588 The identities of persons and countries, for example, are withheld by referring to them by codes known only to the

judge, the jury, the parties, and the witness, such as person 1 or country A. 2589

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.2590

Challenge: Subpoenaing a Cabinet Officer

The defendants requested that subpoenas be issued to 20 current and former highranking government officials, including Secretary of State Condolezza Rice, because of her former position as National Security Advisor, and convicted former

Defense Department employee Franklin.2591 The government objected to subpoenas for all but Franklin and three others, arguing that testimony from the others

would be at best cumulative.2592 Judge Ellis sustained the government s objection

as to five witnesses, but overruled its objection as to 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.2593

[N]othing in the Sixth Amendment right to cumpulsory process requires, nor should it require, an accused to refrain from calling government officials as witnesses until he has

exhausted possible non-governmental witnesses to prove a fact. Inconvenience to public

officials in the performance of their official duties is not a basis for infringing a defendant s Sixth Amendment cumpulsory process rights. And this point is particularly clear

 2585. Rosen, 557 F.3d at 196.

2586. United States v. Rosen, 520 F. Supp. 2d 786 (E.D. Va. 2007); see Reggie B. Walton, Prosecuting International Terrorism Cases in Article III Courts, 39 Geo. L.J. Ann. Rev. Crim. Proc. iii, xiv (2010) (noting that Judge Ellis s opinion was the first published opinion to explicitly

approve of the use of the silent witness procedure in the CIPA context ). 2587. Rosen 520 F. Supp. 2d at 793 94.

2588. Id. at 794.

2589. Id. at 793 94.

2590. Id. at 799.

2591. United States v. Rosen, 520 F. Supp. 2d 802, 804, 806 07 (E.D. Va. 2007); see Pincus, 

supra note 2570. 2592. Rosen, 520 F. Supp. 2d at 807 & n.8, 810. 2593. Id. at 814 15; see Neil A. Lewis, Trial to Of er Look at World of Information Trading, N.Y. Times, Mar. 3, 2008, at A14; Philip Shenon, Defense May Seek U.S. Testimony in Secrets

Case, N.Y. Times, Nov. 3, 2007, at A14.
290 National Security Case Management Studies (11/14/2011)

where, as here, the forecasted testimony would likely be more credible and probative

were it to come from a government official, as compared to an AIPAC employee.2594

Challenge: Classified Orders

In a classified order, subsequently made public, Judge Ellis ordered an investigation into how reporters knew that Rosen and Weissman were under investigation

before they were charged.2595

Because so many issues in this case concern classified information, Judge Ellis filed separate orders under seal stating (1) how the silent witness rule would be 

applied2596and (2) specific reasons for his ruling on each requested subpoena of a

high-ranking government official.2597

As the final trial date approached, and shortly before the government dropped

the case, Judge Ellis issued a sealed order concerning the defendants evidence.2598

Challenge: Closed Proceedings

Judge Ellis rejected the government s motion to try the defendants in closed proceedings.2599 But the court held several closed hearings, each of which required a

court reporter with a security clearance.2600

The court of appeals granted the government s motion to hear parts of oral arguments under seal in the government s appeal of Judge Ellis s rulings on the

admissibility of the FBI Report and the Israeli Briefing Document. 2601 Eight 

portions of the court s published opinion resolving the appeal are redacted.2602

 2594. Rosen, 520 F. Supp. 2d at 811 12 (footnote omitted); see id. at 812 ( to warrant the issuance of these disputed subpoenas, defendants must simply make a plausible showing that each

current or former government official sought to be subpoenaed would provide testimony that

would be (i) relevant to the charged crimes, (ii) material, in that the testimony might have an impact on the outcome of the trial, and (iii) favorable to the defense ) (footnote omitted). 2595. See Jerry Markon, Leak Investigation Ordered, Wash. Post, Aug. 23, 2006, at A4.

2596. United States v. Rosen, 520 F. Supp. 2d 786, 789, 802 (E.D. Va. 2007).

2597. Rosen, 520 F. Supp. 2d at 814; E.D. Va. Docket Sheet, supra note 2553. 2598. E.D. Va. Docket Sheet, supra note 2553 (noting a sealed order filed Apr. 14, 2009).

2599. United States v. Rosen, 487 F. Supp. 2d 703 (E.D. Va. 2007); see Walter Pincus, Justice 

Dept. Given 2 Weeks to Weigh Use of Classified Data in Espionage Case, Wash. Post, Apr. 20, 2007, at A16.

2600. E.D. Va. Docket Sheet, supra note 2553 (noting closed hearings on July 10, 2006; Jan. 9, June 7, July 18 19 and 23, Aug. 8 9, 15 17, and 30, Sept. 7, Nov. 7 8, and Dec. 6, 2007; Jan. 10 and 29, Feb. 7 and 8, May 22, June 24, July 16, Aug. 7, Sept. 25, and Nov. 20, 2008; and Jan. 14 and Apr. 1, 2009).

2601. Docket Sheet, United States v. Rosen, No. 08-4358 (4th Cir. Mar. 31, 2008) [hereinafter

4th Cir. Docket Sheet] (government s appeal); see also Docket Sheet, United States v. Rosen, No. 08-4410 (4th Cir. Apr. 11, 2008) (defendants cross-appeal, dismissed).

2602. United States v. Rosen, 557 F.3d 192, 197, 199 200 (4th Cir. 2009).
National Security Case Management Studies (11/14/2011) 291

Challenge: Classified Arguments

In the interlocutory appeal of Judge Ellis s rulings on admissibility of classified

evidence, the parties filed classified briefs with the classified information security

officer and redacted briefs in the public record.2603

Appellate judges options for reviewing classified documents depend on

where they have chambers. Judge Gregory s chambers are at the court of appeals

in Richmond, where classified materials can be stored in a SCIF. Judge Gregory

can retrieve classified materials from the SCIF and bring them back to his chambers for a private review.2604

Judge Shedd s chambers in Columbia are not in a courthouse.2605 When he

needs to review classified materials, he reviews them at the FBI s SCIF in

town.2606 Both Judge Shedd and Judge King, who has chambers in Charleston, West Virginia, can also review classified materials in Richmond when they are

there.2607

 2603. 4th Cir. Docket Sheet, supra note 2601. 2604. Interview with Hon. Roger L. Gregory, Sept. 25, 2009.

2605. Interview with Hon. Dennis W. Shedd, Sept. 3, 2009.

2606. Id.

2607. Interview with Hon. Roger L. Gregory, Sept. 25, 2009; Interview with Hon. Robert B. King, March 19, 2008.
292 National Security Case Management Studies (11/14/2011)

Lodi

United States v. Hayat

(Garland E. Burrell, Jr., E.D. Cal.)

On June 5, 2005, the government arrested Hamid Hayat and his father, Umer, of

Lodi, California, an agricultural town 40 miles south of Sacramento.2608 Umer 

drove an ice cream truck; Hamid worked in a fruit-packing plant.2609

The saga began in 2001, when the government hired Naseem Khan, of Bend, Oregon, to spy on potential terrorist sympathizers in Lodi, where Khan once

lived.2610 A native of Pakistan who became a U.S. citizen during his undercover

work, Khan moved back to Lodi in August 2002.2611 He is reported to have encouraged support of terrorism as part of his undercover work.2612 The government

is reported to have paid him approximately $225,000.2613

 2608. See Randal C. Archibold & Jeff Kearns, In California Terror Case, a Mistrial for a Father, but a Son Is Guilty, N.Y. Times, Apr. 26, 2006, at A17; Greg Krikorian & Rone Tempest, 2 

Men Held in Links to Terror, L.A. Times, June 8, 2005, at 1; Dean E. Murphy & David Johnston, California Father and Son Face Charges in Terrorism Case, N.Y. Times, June 9, 2005, at A18.

2609. See Frontline: The Enemy Within (PBS television broadcast Oct. 10, 2006) [hereinafter

Enemy Within]; Krikorian & Tempest, supra note 2608; Murphy & Johnston, supra note 2608; 

Rone Tempest, Greg Krikorian & Lee Romney, Ties to Terror Camps Probed, L.A. Times, June

9, 2005, at 1.

The younger Hayat s maternal grandfather was Pakistan s minister of religious affairs in the

late 1980s. Mubashir Zaidi, Rone Tempest & Greg Krikorian, Relative Casts Doubt on Charge, L.A. Times, June 11, 2005, at 16.

2610. See Eric Bailey, Attorney Says Lodi Terror Suspect Told Tall Tales to FBI Mole, L.A. Times, Mar. 3, 2006, at 6; Rone Tempest, FBI Informer Begins His Testimony in Terror Trial, L.A. Times, Feb. 23, 2006, at 1 [hereinafter FBI Informer]; Rone Tempest, Lodi Terror Trial Enters Final Round, L.A. Times, Apr. 11, 2006, at 3 [hereinafter Final Round]; Rone Tempest, Onetime Clerk Is at Center of Lodi Trial, L.A. Times, Mar. 21, 2006, at 1 [hereinafter Onetime Clerk]; 

Rone Tempest, Tape Recording Surfaces in Lodi Terrorism Trial, L.A. Times, Apr. 5, 2006, at 3

[hereinafter Tape Recording Surfaces]; Denny Walsh, Hayat Released from Custody, Sacramento

Bee, Aug. 26, 2006, at B1.

2611. See Bailey, supra note 2610; Eric Bailey, Mixed Picture of Suspect, L.A. Times, Mar. 1, 2006, at 3 [hereinafter Mixed Picture]; Tempest, FBI Informer, supra note 2610 ( Naseem Khan, then 28, rented an apartment overlooking the Lodi Mosque, befriended the town s Muslim religious leaders and, over the next three years, secretly taped hundreds of hours of conversations

with members of the largely Pakistani American community as a paid undercover agent for the

FBI. ); Rone Tempest, Lodi Man Describes Terrorist Training, L.A. Times. Mar. 8, 2006, at 3

[hereinafter Terrorist Training]; Rone Tempest, Man Trained To Be Terrorist, Prosecutor Says, L.A. Times, Feb. 17, 2006, at 3 [hereinafter Man Trained]; Tempest, Onetime Clerk, supra note 

2610. 2612. E.g., Redacted Government s Motion for Protective Order at 4, United States v. Hayat, No. 2:05-cr-240 (E.D. Cal. dated Jan. 26, 2006, filed Feb. 1, 2006) ( in a second conversation, the

CW [cooperating witness, namely Khan] congratulated Hamid on what is believed to be Hamid s

acceptance into a training camp. ); see Bailey, Mixed Picture, supra note 2611 ( But in taperecorded telephone conversations, Naseem Khan, a paid government informant, accused Hayat of

being a loafer after his arrival in Pakistan during the summer of 2003. Khan pressed him to be a

man and fulfill his vow to attend a terrorist training camp. ); Enemy Within, supra note 2609
National Security Case Management Studies (11/14/2011) 293

The Hayats went to Pakistan in April 2003.2614 Although Hamid was on the

no-fly list of suspected extremists, he returned from Pakistan to California by

plane via Korea on May 30, 2005.2615 Federal agents discovered his trip while he

was en route, and the plane was diverted to Japan, where agents detained him, interviewed him, and then let him continue on his trip.2616 Four days after Hamid s

return to California, federal agents interviewed him again.2617 They also interviewed his father.2618 Both denied the son s involvement with terrorists.2619 After 

failing a polygraph examination, however, Hamid confessed to attending an Al- Qaeda training camp in Pakistan for six months in 2003 and 2004.2620 The father

 ( Narrator: And then there were the tapes of the informant talking to Hamid in Pakistan in which

Naseem Khan was browbeating him about attending a Madrassa and going to a jihadi camp. );

Tempest, FBI Informer, supra note 2610 ( Some Lodi residents contend that Khan was more than

just a passive mole in the mosque. They said he was often an instigator, asking young men about

waging jihad and encouraging travelers to Pakistan to bring back firebrand speeches and extremist

documents. ). 2613. Randal C. Archibold, Diverging Views of Californian at Terror Trial, N.Y. Times, Feb. 17, 2006, at A14 [hereinafter Diverging Views] (reporting a payment of $250,000); Randal C. Archibold, Prosecution Sees Setback at Terror Trial in California, N.Y. Times, Apr. 10, 2006, at

A20 (about $225,000); Bailey, supra note 2610 (more than $200,000); Bailey, Mixed Picture, supra note 2611 (about $250,000); Enemy Within, supra note 2609 (hundreds of thousands of dollars); Neil MacFarquhar, Echoes of Terror Case Haunt California Pakistanis, N.Y. Times, Apr. 27, 2007, at A1 (about $225,000); Carolyn Marshall, 24-Year Term for Californian in Terrorism

Training Case, N.Y. Times, Sept. 11, 2007, at A20 (more than $200,000); Rone Tempest, Al Qaeda in Lodi Unlikely, L.A. Times, Mar. 30, 2006, at 9 (nearly $230,000 in salary and expenses);

Tempest, FBI Informer, supra note 2610 (nearly $250,000 for his efforts in Lodi alone ); Tempest, Terrorist Training, supra note 2611 (more than $200,000 in salary and bonuses); Tempest, Final Round, supra note 2610 (about $3,500 per month plus expenses); Tempest, Man Trained, supra note 2611 ($250,000); Tempest, Onetime Clerk, supra note 2610 (more than $200,000 in

salary and expenses); Tempest, Tape Recording Surfaces, supra note 2610 (nearly $230,000).

2614. Government s Trial Brief at 3, 6, Hayat, No. 2:05-cr-240 (E.D. Cal. Feb. 14, 2006);

Second Superseding Indictment at 2, id. (Jan. 26, 2006); First Superseding Indictment at 3, id.

(Sept. 22, 2005); see Enemy Within, supra note 2609; Krikorian & Tempest, supra note 2608; 

Tempest, FBI Informer, supra note 2610. 2615. Government s Trial Brief, supra note 2614, at 3 4; see Archibold, Diverging Views, supra note 2613; Krikorian & Tempest, supra note 2608; Murphy & Johnston, supra note 2608. 2616. Government s Trial Brief, supra note 2614, at 4; Second Superseding Indictment, supra 

note 2614, at 3; First Superseding Indictment, supra note 2614, at 3; see Rone Tempest, In Lodi

Terror Case, Intent Was the Clincher, L.A. Times, May 1, 2006, at 1.

2617. Government s Trial Brief, supra note 2614, at 4, 7; see Enemy Within, supra note 2609; 

Krikorian & Tempest, supra note 2608. 2618. Government s Trial Brief, supra note 2614, at 5, 9; see Enemy Within, supra note 2609; 

Krikorian & Tempest, supra note 2608. 2619. Government s Trial Brief, supra note 2614, at 4 5, 8 9; see Krikorian & Tempest, supra

note 2608. 2620. Government s Trial Brief, supra note 2614, at 8; see Krikorian & Tempest, supra note 

2608; Tempest, supra note 2616; Tempest et al., supra note 2609. The court did not permit a retired FBI agent to offer his expert opinion that the interrogation of 

the younger Hayat was so leading, and the defendant so suggestible, as to seriously call into question the reliability of the confession, because such testimony would have been cumulative of the

cross-examination of the interrogation agents. Order at 41 55, United States v. Hayat, No. 2:05-
294 National Security Case Management Studies (11/14/2011)

and son were indicted on June 16, 2005, for making false statements to federal

officials.2621 More than three months later, on September 22, Hamid s indictment

was amended to include a charge of materially supporting terrorism by attending 

the training camp in Pakistan.2622 The government added an additional false

statement charge against each defendant on January 26, 2006.2623 The U.S. District Court for the Eastern District of California assigned the case to Judge Garland E. Burrell, Jr.2624

After arresting the Hayats, the government arrested other Pakistani-American 

and Pakistani men in Lodi.2625 Muslim clerics Shabir Ahmed and Mohamed Adil

Khan and Khan s son Mohammed Hassan Adil were detained on immigration violations.2626 They agreed to return to Pakistan to avoid terrorism-related 

charges.2627

The two Hayats were tried together, but before separate juries.2628 The younger Hayat s jury convicted him of all charges on April 25, 2006, and the father s

jury deadlocked.2629

 cr-240 (E.D. Cal. May 17, 2007) [hereinafter Order Denying New Trial], available at 2007 WL

1454280; see Mark Arax, The Agent Who Might Have Saved Hamid Hayat, L.A. Times, May 28, 2006, West Mag. at 16; Archibold, Diverging Views, supra note 2613; Enemy Within, supra note 

2609; Wadie E. Said, The Terrorist Informant, 85 Wash. L. Rev. 687, 719 (2010); Jon Sherman, A Person Otherwise Innocent : Policing Entrapment in Preventative, Undercover Counterter- rorism Investigations ̧11 U. Pa. J. Const. L. 1475, 1493 (2009).

2621. Indictment, Hayat, No. 2:05-cr-240 (E.D. Cal. June 16, 2005); see Eric Bailey, Lodi Men 

Accused of Lying to FBI, L.A. Times, June 17, 2005, at 1; Dean E. Murphy, Two Indicted in Ter- rorism Case, N.Y. Times, June 17, 2005, at A24; Tempest, supra note 2616; Rone Tempest &

Greg Krikorian, Affidavit Changed in Terrorism Accusation, L.A. Times, June 10, 2005, at 1.

2622. First Superseding Indictment, supra note 2614; see Tempest, supra note 2616; Rone

Tempest, Lodi Man Indicted in Alleged Terrorism, L.A. Times, Sept. 23, 2005, at 3 [hereinafter

Lodi Man Indicted].

2623. Second Superseding Indictment, supra note 2614. 2624. Docket Sheet, Hayat, No. 2:05-cr-240 (E.D. Cal. June 16, 2005) [hereinafter E.D. Cal. Docket Sheet]; see Tempest & Krikorian, supra note 2621. Tim Reagan interviewed Judge Burrell for this report in the judge s chambers on February 13, 2007.

2625. See Tempest et al., supra note 2609. 2626. See Murphy & Johnston, supra note 2608; Tempest, supra note 2616; Tempest et al., supra note 2609. 2627. See Archibold, Diverging Views, supra note 2613 (reporting a voluntary return to Pakistan to avoid deportation); Enemy Within, supra note 2609 (reporting that the government did not

have enough evidence to charge the imams with anything related to terrorism); Maria L. La Ganga

& Rone Tempest, 2 Lodi Men To Be Deported, L.A. Times, July 16, 2005, at 3 (reporting Khan

and Adil s agreement to be deported); Lee Romney & Ann M. Simmons, Pakistani Cleric Agrees

to Leave U.S., L.A. Times, Aug. 16, 2005, at 1 (reporting Ahmed s agreement to be deported);

Tempest, Terrorist Training, supra note 2611 (reporting that both imams were allowed to leave

the country voluntarily); Tempest, Lodi Man Indicted, supra note 2622 (reporting that Khan was

deported in Aug. 2005).

2628. Order, Hayat, No. 2:05-cr-240 (E.D. Cal. Jan. 19, 2006) (ordering the empanelment of

dual juries); see Rone Tempest, Jury in Lodi Case Asks to See Video, L.A. Times. Apr. 14, 2006, at 3.
National Security Case Management Studies (11/14/2011) 295

The son moved for a new trial, arguing, among other things, that one juror observed the foreperson gesture, before the end of the trial, that the defendant should 

be hanged.2630 After taking testimony from both jurors, Judge Burrell credited the

foreperson s claim that he did not make the gesture.2631 A new trial was denied.2632 The son was sentenced on September 10, 2007, to 24 years in prison.2633

His appeal was heard on June 10, 2009.2634

The government initially decided to retry the father,2635 but decided to drop

the charges in exchange for his pleading guilty to a false customs declaration related to his taking too much money to his family on the 2003 trip to Pakistan.2636

After his mistrial, the father s confinement was changed from prison to house arrest, and on August 25, 2006, he was sentenced to time served and three years of

supervised release.2637

Subsequent to his release, the father told reporters that his and his son s confessions resulted from exhaustion and leading questions they told the agents

what they wanted to hear so that they could go home after extensive question-

 2629. Verdict, Hayat, No. 2:05-cr-240 (E.D. Cal. Apr. 25, 2006) (finding Hamid Hayat guilty); 

E.D. Cal. Docket Sheet, supra note 2624 (noting the granting of a mistrial as to Umer Hayat because the jury was not able to reach a verdict); see Order Denying New Trial, supra note 2620, at

1; see also Archibold & Kearns, supra note 2608; Enemy Within, supra note 2609; Walsh, supra 

note 2610 ( The jury split 7-5 for conviction on one count and 6-6 on a second count . . . . );

Tempest, supra note 2616 ( But what the three federal prosecutors could and did show convincingly was that 23-year-old Hamid Hayat of Lodi, Calif., espoused strong anti-American sentiments, supported militant Muslim political parties in Pakistan and had a romantic attachment to

the idea of jihad. ); Rone Tempest & Eric Bailey, Conviction for Son, Mistrial for Father in Lodi 

Terror Case, L.A. Times, Apr. 26, 2006, at 1 ( Although Hamid Hayat s conviction was a clear

victory for the prosecution, the facts in the nine-week trial of the Lodi father and son never

matched the government s repeated claims that it had discovered an active Al Qaeda terrorist cell

embedded in California s agricultural heartland, 35 miles south of Sacramento. ). 2630. Order Denying New Trial, supra note 2620, at 6, 8 13; see Denny Walsh, New Trial

Sought for Hayat, Sacramento Bee, Oct. 29, 2006, at B1.

2631. Order Denying New Trial, supra note 2620, at 8 13; see Demian Bulwa, Lodi Man Loses Bid for New Terror Trial, S.F. Chron., May 18, 2007, at B2; Denny Walsh, Hayat Juror Was

Biased, His Accuser Testifies, Sacramento Bee, Apr. 14, 2007, at B1.

2632. Order Denying New Trial, supra note 2620; see Bulwa, supra note 2631. 2633. Judgment, Hayat, No. 2:05-cr-240 (E.D. Cal. Sept. 25, 2007); see Marshall, supra note 

2613. 2634. http://www.ca9.uscourts.gov/media/view_subpage.php?pk_id=0000003604 (audio recording of oral argument); Docket Sheet, United States v. Hayat, No. 07-10457 (9th Cir. Sept. 21, 2007) (noting oral argument heard by circuit judges Mary M. Schroeder, A. Wallace Tashima, and 

Marsha S. Berzon).

2635. See Carolyn Marshall, Government Will Retry Terror Case, N.Y. Times, May 6, 2006, at 

A11; Rone Tempest, U.S. to Retry Father in Lodi Case, L.A. Times, May 6, 2006, at 1.

2636. Plea Agreement, Hayat, No. 2:05-cr-240 (E.D. Cal. May 31, 2006); Information, id.

(May 31, 2006); see Enemy Within, supra note 2609; Rone Tempest & Eric Bailey, Lodi Man Is

Released in Plea Bargain, L.A. Times, June 1, 2006, at 7; Walsh, supra note 2610. 2637. Judgment, Hayat, No. 2:05-cr-240 (E.D. Cal. Sept. 5, 2006); see Carolyn Marshall, Man 

in Terror Investigation Is Released, N.Y. Times, Aug. 26, 2006, at A12; Walsh, supra note 2610.
296 National Security Case Management Studies (11/14/2011)

ing.2638 Meanwhile, two family members both U.S. citizens who were trying

to return to Lodi from Pakistan discovered that they were on the no-fly list, and

initially they were not permitted to return without submitting to interrogation

first.2639 They declined to be interrogated

2640

and were permitted to return home

five months later after intervention of counsel.2641

Challenge: Classified Evidence

Nine days after the defendants were first indicted, the government filed a notice

that the Classified Information Procedures Act (CIPA)2642 may apply to this

case.2643 Another nine days later, the government filed the following announcement:

Government counsel have been informed that there is at least one classified document

that is in the possession, custody and control of the government which is potentially discoverable and it is reasonably likely that the government will submit this document to the 

Court ex parte, and in camera, pursuant to CIPA, for a determination of whether it is discoverable. The government s request for a review of pertinent agency evidence has just

commenced. Thus, it is reasonably foreseeable that additional classified and potentially

discoverable information will be encountered.2644 Six times the government noticed submission of material to the court ex parte, 

in camera, and under seal,2645and twice the government noticed a hearing ex

parte, in camera, and under seal.2646

 2638. Enemy Within, supra note 2609; Stephen Magagnini, Waiting to Go Free, Sacramento

Bee, Aug. 25, 2006, at A1; Walsh, supra note 2610. 2639. See Randal C. Archibold, U.S. Blocks Men s Return to California from Pakistan, N.Y. Times, Aug. 29, 2006, at A17; Demian Bulwa, 2 Lodi Residents Refused Entry Back Into U.S., S.F. Chron., Aug. 26, 2006, at A1.

The relatives are Muhammad Ismail, Hamid Hayat s uncle and apparently Umer Hayat s

brother-in-law, and Muhammad s son Jaber Ismail, Hamid s cousin. See Archibold, supra; Bulwa, 

supra. Hamid Hayat had said during the interrogation that led to his prosecution that he thought

some of his cousins, including Jaber Ismail, had attended terrorist training camps. See Archibold, 

supra; Bulwa, supra. The Ismails were detained on April 21, 2006, while the juries were deliberating in the Hayats case, but Muhammad Ismail s wife and two younger children were permitted to

return home. See Archibold, supra; Bulwa, supra. 2640. See Archibold, supra note 2639; Bulwa, supra note 2639. 2641. See Randal C. Archibold, Wait Ends for Father and Son Exiled by F.B.I. Terror Inquiry, N.Y. Times, Oct. 2, 2006, at A10; Demian Bulwa, Men OKd to Return to U.S. from Pakistan, S.F. Chron., Sept. 13, 2006, at B5.

2642. 18 U.S.C. app. 3; see Reagan, supra note 173. 2643. CIPA Notice, United States v. Hayat, No. 2:05-cr-240 (E.D. Cal. June 27, 2005).

2644. CIPA Motion at 3, id. (July 6, 2005).

2645. Six times the government noticed the submission of ex parte, in camera, under seal material:

1. CIPA Notice, id. (Oct. 6, 2005); see Redacted Government s CIPA Brief, id. (Dec. 16, 2005) (specifying a hearing date of Oct. 7, 2005).

2. CIPA Notice, id. (Nov. 18, 2005).

3. CIPA Notice, id. (Dec. 9, 2005); see Redacted Government s CIPA Motion, id. (dated 

Dec. 9, 2005, filed Dec. 16, 2005) (specifying a hearing date of Dec. 9, 2005).
National Security Case Management Studies (11/14/2011) 297

When a trial date was set, the government announced that some evidence

against the defendants was obtained using methods so secret that they could not

be disclosed to anyone without a security clearance.2647 The defendants argued

that the government s call for a security clearance was a delay tactic:

Based on the discovery provided to date, the defense believes that there is currently only

one item of evidence that may potentially invoke the Classified Information Procedures

Act. . . .

. . . The government advised that if the defense wanted to object to the foundation of

this item of evidence, classified information would be involved and security clearances

would be needed.

. . . Based on [an] investigation, the defense will not object to the admissibility of the 

item of evidence. . . .

. . . .

. . . The government, however, is objecting to such a stipulation by suggesting that

the defendants cannot make such a decision voluntarily. The defense believes that such

an objection is insincere, unfounded and just another tactic by the government to force

delays in this case.

. . . Now that the Court has set a trial date, the government is attempting to force defense counsel to undergo lengthy security clearances just to litigate an evidentiary issue

that the defense has stated in open court it has no objections to.2648

Judge Burrell considered whether he should order defense counsel to obtain 

security clearances or, alternatively, should appoint already cleared counsel to as-

 4. CIPA Notice, id. (Jan. 28, 2006); see Redacted Government s CIPA Motion, id. (dated 

Jan. 26, 2006, filed Feb. 2, 2006) (specifying a hearing date of Jan. 27, 2005); Redacted 

Government s CIPA Motion, id. (dated Jan. 27, 2006, filed Feb. 1, 2006) (specifying a

hearing date of Jan. 27, 2005); Redacted Government s CIPA Motion, id. (dated Jan. 26, 2006, filed Feb. 1, 2006) (specifying a hearing date of Jan. 27, 2005).

5. CIPA Notice, id. (Apr. 3, 2006); see Redacted Government s CIPA Motion, id. (Apr. 4, 

2006) (specifying a hearing date of Apr. 4, 2006); Redacted Order, id. (Apr. 3, 2006).

6. CIPA Notice, id. (Dec. 13, 2006); see Order, id. (Dec. 21, 2006) (granting in camera ex

parte motion for a protective order).

2646. Twice the government noticed an ex parte, in camera, under seal hearing:

1. CIPA Hearing Notice, id. (Dec. 5, 2005) (specifying a hearing date of Dec. 9, 2005);

see Redacted Government s CIPA Motion, id. (dated Dec. 9, 2005, filed Dec. 16, 2005) 

(specifying a hearing date of Dec. 9, 2005).

2. CIPA Hearing Notice, id. (Dec. 9, 2005) (specifying a hearing date of Dec. 16, 2005);

see Redacted Government s CIPA Brief, id. (Dec. 16, 2005) (specifying a hearing date

of Dec. 16, 2005).

There may have been a third sealed hearing. See Redacted Government s CIPA Motion, id.

(dated Jan. 6, 2005 [sic], filed Jan. 6, 2006) (specifying a hearing date of Jan. 6, 2005 [sic]).

2647. See Trial Date Is Set for Lodi Men, L.A. Times, Jan. 7, 2006, at 6 (reporting a trial date

of Feb. 14, 2006); see also Order at 2 3, Hayat, No. 2:05-cr-240 (E.D. Cal. Jan. 10, 2006) (announcing a trial date of Feb. 14, 2006, and discussing a government motion that defense counsel

obtain a security clearance).

The evidence apparently resulted in four exhibits satellite images in the vicinity of Balakot, Pakistan that the parties ultimately stipulated were admissible. Exhibit 4 Stipulated Order, Hayat, No. 2:05-cr-240 (E.D. Cal. Feb. 3, 2006); Exhibit 3 Stipulated Order, id. (Feb. 3, 2006);

Exhibit 2 Stipulated Order, id. (Feb. 3, 2006); Exhibit 1 Stipulated Order, id. (Feb. 3, 2006).

2648. Defendants Joint CIPA Response at 2 3, Hayat, No. 2:05-cr-240 (E.D. Cal. Jan. 16, 2006).
298 National Security Case Management Studies (11/14/2011)

sist in the defense.2649 The classified information security officer could not find a

local defense attorney with a security clearance, but he was able to identify two in 

the Northern District of California who were cleared.2650 Ultimately, Judge Burrell decided that cleared counsel for the defendants was not necessary.2651

Within a few weeks, the parties and their attorneys agreed to a stipulated protective order stating that the case might require in camera proceedings concerning

classified information, which would be held ex parte because defense counsel did

not have security clearances and they did not want to delay the trial to obtain

them.2652 Judge Burrell s court reporter obtained a security clearance, as did one

other reporter at the court as a potential backup.2653

Hamid Hayat s motion for a new trial2654 included eight main arguments, the

third of which Hayat was deprived of his constitutional right to confront [the

government informant] Khan by the Court s CIPA order of March 1, 2006 was 

filed under seal because it referenced a sealed court order containing a discussion

of potentially classified information.2655 Judge Burrell filed his ruling on this argument under seal.2656

 2649. Interview with Hon. Garland E. Burrell, Jr., Feb. 13, 2007.

2650. Id.

2651. Id.

2652. Stipulated Order, Hayat, No. 2:05-cr-240 (E.D. Cal. Feb. 3, 2006).

2653. Interview with Hon. Garland E. Burrell, Jr., Feb. 13, 2007.

2654. New Trial Brief, Hayat, No. 2:05-cr-240 (E.D. Cal. Oct. 27, 2006).

2655. Sealing Order, id. (Feb. 5, 2007); Defendant s Sealing Request, id. (Oct. 27, 2006); see 

also Order, id. (Mar. 21, 2007) (granting the plaintiff s motion to file an argument III reply under

seal); Order, id. (Feb. 5, 2007) (granting the government s motion to file a response to argument

III under seal).

2656. Order Denying New Trial, supra note 2620, at 35; E.D. Cal. Docket Sheet, supra note 

2624 (noting that counsel for the parties are authorized to obtain from the clerk s office a copy of

the sealed order ).
National Security Case Management Studies (11/14/2011) 299

Warrantless Wiretaps

Hepting v. AT&T, In re NSA Telecommunication Records 

Litigation, and Related Actions (Vaughn R. Walker, N.D. Cal.) 

and Al-Haramain Islamic Foundation v. Bush (Garr M. King, 

D. Or.);2657 ACLU v. NSA (Anna Diggs Taylor, E.D. Mich.);2658

Terkel v. AT&T and Related Actions (Matthew F. Kennelly, 

N.D. Ill.); Center for Constitutional Rights v. Bush (Gerard E. 

Lynch, S.D.N.Y.); Electronic Privacy Information Center v. 

Department of Justice and Related Action (Henry H. Kennedy, 

Jr., D.D.C.); and Electronic Frontier Foundation v. 

Department of Justice (Thomas F. Hogan, D.D.C.)

On December 16, 2005, the New York Times reported that in 2002 President Bush

secretly authorized the National Security Agency (NSA) to conduct warrantless

wiretaps of international communications with people in the United States.2659

President Bush acknowledged the existence of the program the following day.2660

 2657. Appeals were heard by Ninth Circuit Judges Harry Pregerson, Michael Daly Hawkins, and M. Margaret McKeown.

2658. The appeal was heard by Sixth Circuit Judges Alice M. Batchelder, Ronald Lee Gilman, and Julia Smith Gibbons.

2659. James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. Times, Dec. 16, 2005, at A1; see In re NSA Telecomm. Records Litig., 633 F. Supp. 2d 949, 955

(N.D. Cal. 2009); Dismissal Order at 3, Jewel v. NSA, No. 3:08-cv-4373 (N.D. Cal. Jan. 21, 2010) 

[hereinafter Jewel Dismissal Order], available at 2010 WL 235075; Offices of Inspectors General, 

Unclassified Report on the President s Surveillance Program 1, 36 (July 10, 2009) [hereinafter

PSP Report], available at http://www.justice.gov/oig/special/s0907.pdf; see also Matthew M. Aid, The Secret Sentry 287 (2009).

After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration

officials argued could be useful to terrorists has been omitted. Risen & Lichtblau, supra. The 

newspaper posted the story to the Internet the night before the story appeared in the paper to avoid 

the possibility of the government s enjoining publication. Eric Lichtblau, Bush s Law 210 11 

(2008).

The story appeared 18 months after the newspaper received a tip from a Justice Department

lawyer. See Michael Isikoff, The Fed Who Blew the Whistle, Newsweek, Dec. 22, 2008, at 40, 42. In the summer of 2007, FBI agents executed a classified search warrant in a raid of the lawyer s

home as part of an investigation into the leak. See Michael Isikoff, Looking for a Leaker, Newsweek, Aug. 13, 2007, at 8. Nearly four years later, the government dropped its case against the

lawyer. See Priest & Arkin, supra note 239, at xxi.

Part of the Department of Defense, the NSA was established in 1952 to conduct communication surveillance. See Priest & Arkin, supra note 239, at 5 n.1. According to the 9/11 Commission, 

The law requires the NSA to not deliberately collect data on U.S. citizens or on persons in the

United States without a warrant based on foreign intelligence requirements. The 9/11 Commission Report 87 (2004).

2660. President s Radio Address, Dec. 17, 2005, available at http://usgovinfo.about.com/od/ 

thepresidentandcabinet/a/radio121705.htm.
300 National Security Case Management Studies (11/14/2011)

On May 11, 2006, USA Today reported that [t]he National Security Agency has

been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA Today. 2661 According to the USA Today report, the telephone companies were providing the government with records of

who was calling whom, not information about the contents of the calls.2662 Dozens 

of lawsuits followed these revelations.2663 The Judicial Panel on Multidistrict Litigation (JPML) consolidated most of these cases in the U.S. District Court for the

Northern District of California before Judge Vaughn R. Walker.2664

 In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations. Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks.

This is a highly classified program that is crucial to our national security. Its purpose is to 

detect and prevent terrorist attacks against the United States, our friends and allies. Yesterday 

the existence of this secret program was revealed in media reports, after being improperly

provided to news organizations. As a result, our enemies have learned information they

should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies, and endangers our country.

Id.; see ACLU v. NSA, 493 F.3d 644, 653 (6th Cir. 2007) (it is undisputed that the NSA

(1) eavesdrops, (2) without warrants, (3) on international telephone and email communications in

which at least one of the parties is reasonably suspected of al Qaeda ties ); PSP Report, supra note 

2659, at 5 6 ( beginning in December 2005 the President and other Administration officials acknowledged that these activities included the interception without a court order of certain international communications ). For a discussion of the New York Times and the government s disclosures, see Al-Haramain 

Islamic Found. v. Bush, 507 F.3d 1190, 1192 94,1198 200 (9th Cir. 2007); ACLU, 493 F.3d at

648 & n.1; Al-Haramain Islamic Found. v. Bush, 451 F. Supp. 2d 1215, 1218, 1221 22 (D. Or. 2006); Hepting v. AT&T Corp., 439 F. Supp. 2d 974, 986 87 (N.D. Cal. 2006).

2661. Leslie Cauley, NSA Has Massive Database of Americans Phone Calls, USA Today, May 11, 2006, at 1A.

BellSouth and Verizon denied participation in this program, but MCI, which Verizon acquired, 

may have participated. See Susan Page, Lawmakers: NSA Database Incomplete, USA Today, June 

30, 2006, at 2A; see also Al-Haramain Islamic Found., 507 F.3d at 1193 n.1; Hepting, 439 F. Supp. 2d at 988 89.

2662. Cauley, supra note 2661; see Hepting, 439 F. Supp. 2d at 988; see also Scott Shane &

David Johnston, Mining of Data Prompted Fight Over U.S. Spying, N.Y. Times, July 29, 2007, at

A1 (reporting that the government acknowledged warrantless wiretaps but did not acknowledge

data mining in calling records, although the latter was widely reported).

2663. In re NSA, 633 F. Supp. 2d at 955; Jewel Dismissal Order, supra note 2659, at 3 4; see

Pete Carey, S.F. Judge Tapped for Telecom Lawsuits, San Jose Mercury News, Aug. 11, 2006, at

A12; Jason McLure, DOJ Losing Ground in Wiretap Fight, Legal Times, Sept. 4, 2006, at 1.

2664. Conditional Transfer Order 6, In re NSA Telecomm. Records Litig., No. 1791 (J.P.M.L. issued Mar. 23, 2007, final Apr. 10, 2007) (transferring one action against a telephone company);

In re NSA Telecomm. Records Litig., 474 F. Supp. 2d 1355 (J.P.M.L. 2007) (transferring actions

by the federal government against states); Transfer Order, In re NSA, No. 1791 (J.P.M.L. issued

Dec. 15, 2006) [hereinafter Dec. 15, 2006, J.P.M.L. Transfer Order] (transferring three actions

against the government and one action against telephone companies); Conditional Transfer Order

5, In re NSA, No. 1791 (J.P.M.L. issued Nov. 3, 2006, final Nov. 21, 2006) (transferring one ac-
National Security Case Management Studies (11/14/2011) 301

The government argued for dismissal of these cases, claiming that they could 

not be litigated without revealing state secrets.2665 This argument was successful 

with respect to alleged transfers of communication records by the telephone companies to the government,2666 but less successful with respect to the warrantless

monitoring of the contents of communications, because the government acknowledged that it did that.2667

 tion against a telephone company); Conditional Transfer Order 2, In re NSA, No. 1791 (J.P.M.L. issued Sept. 11, 2006, final Sept. 27, 2006) (transferring one action against a telephone company);

Conditional Transfer Order 1, In re NSA, No. 1791 (J.P.M.L. issued Aug. 31, 2006, final Sept. 18, 2006) (transferring one action against the government and 15 actions against telephone companies); In re NSA Telecomm. Records Litig., 444 F. Supp. 2d 1332 (J.P.M.L. 2006) (initial Aug. 9, 2006, transfer order transferring 17 actions against telephone companies, one transfer of which

was later vacated because the case already was dismissed); see Order, In re NSA, No. 3:06-md- 1791 (N.D. Cal. Aug. 31, 2006) (consolidating for pretrial purposes all cases already before Judge

Walker); Docket Sheet, id. (Aug. 14, 2006) [hereinafter N.D. Cal. In re NSA Docket Sheet]; see 

also In re NSA, 633 F. Supp. 2d at 956; Jewel Dismissal Order, supra note 2659, at 5; Carey, supra note 2663; Bob Egelko, Surveillance Lawsuits Transferred to Judge Skeptical of Bush Plan, S.F. Chron., Aug. 11, 2006, at B1; McLure, supra note 2663. Tim Reagan interviewed Judge Walker for this report in the judge s chambers on February 15, 2007, September 29, 2008, and February 23, 2011.

2665. Al-Haramain Islamic Found., 507 F.3d at 1193; ACLU, 493 F.3d at 650 & nn.2 3; Government Brief, In re NSA, No. 3:06-md-1791 (N.D. Cal. Apr. 20, 2007); Government Brief, Terkel 

v. AT&T, No. 1:06-cv-2837 (N.D. Ill. June 30, 2006); Government Brief, Al-Haramain Islamic

Found. v. Bush, No. 3:06-cv-274 (D. Or. June 21, 2006); Government Brief, ACLU v. NSA, No. 2:06-cv-10204 (E.D. Mich. May 26, 2006); Government Brief, Center for Constitutional Rights v. Bush, No. 1:06-cv-313 (S.D.N.Y. May 26, 2006); Government Brief, Hepting v. AT&T Corp., No. 3:06-cv-672 (N.D. Cal. May 13, 2006); see also U.S. Statement of Interest, Harrington v. AT&T, Inc., No. 1:06-cv-374 (W.D. Tex., July 17, 2006) (announcing intent to seek dismissal on

state-secrets grounds).

2666. ACLU v. NSA, 438 F. Supp. 2d 754, 759, 764 66 (E.D. Mich. 2006) (dismissing data- mining claims); Terkel v. AT&T, 441 F. Supp. 2d 899, 901, 920 (N.D. Ill. 2006) (dismissing complaint with leave to amend); Hepting v. AT&T Corp., 439 F. Supp. 2d 974, 995 98 (N.D. Cal. 2006) (provisionally denying discovery on transfers of communication records); see ACLU, 493

F.3d at 650 n.2 ( The alleged data mining, which has not been publicly acknowledged, might fall

within [the state-secrets rule of non-justiciability]. ); id. at 719 (Gilman, dissenting) ( After a

careful review of the record, I conclude that the district court s analysis of this issue and of the

preclusive effect of the state-secrets privilege is persuasive. ); see also Dan Eggen & Dafna Linzer, Judge Rules Against Wiretaps, Wash. Post, Aug. 18, 2006, at A1; Adam Liptak, Judge Rejects

Customer Suit Over Records from AT&T, N.Y. Times, July 26, 2006, at A13; McLure, supra note 

2663; Mike Robinson, Judge Dismisses Lawsuit on AT&T Data Handover, Wash. Post, July 26, 2006, at A6.

2667. Al-Haramain Islamic Found., 507 F.3d at 1193, 1197 201; In re NSA Telecomm. Records Litig., 595 F. Supp. 2d 1077, 1089 (N.D. Cal. 2009); Al-Haramain Islamic Found. v. Bush, 451 F. Supp. 2d 1215, 1220 24 (D. Or. 2006); ACLU, 438 F. Supp. 2d at 759, 764 66; 

Hepting, 439 F. Supp. 2d at 980, 991 94; see Egelko, supra note 2664; Eric Lichtblau, Court Bars 

Secret Papers in Eavesdropping Case, N.Y. Times, Nov. 17, 2007, at A11; Adam Liptak, Judge 

Allows Islamic Group to Challenge Wiretapping, N.Y. Times, Sept. 8, 2006, at A17; John Markoff, Judge Declines to Dismiss Privacy Suit Against AT&T, N.Y. Times, July 21, 2006, at A13;

McLure, supra note 2663; Arshad Mohammed, Judge Declines to Dismiss Lawsuit Against AT&T, Wash. Post, July 21, 2006, at A9.
302 National Security Case Management Studies (11/14/2011)

Judge Anna Diggs Taylor of the U.S. District Court for the Eastern District of

Michigan declared the warrantless wiretap program unconstitutional and a violation of the Foreign Intelligence Surveillance Act (FISA).2668 She issued a permanent injunction against the program,2669 but a divided panel of the U.S. Court of

Appeals for the Sixth Circuit reversed and ordered the challenge to the program

dismissed.2670 Judges Alice M. Batchelder and Julia Smith Gibbons determined 

that the plaintiffs claims were too speculative to afford them standing,2671 but 

 The New York University School of Law s Center on Law and Security described two types of

electronic surveillance, which is a more formal term for wiretaps, and which implicitly acknowledges that not all electronic communications pass through wires: We define trawling surveillance as NSA interception of entire streams of communications, which are then subjected to

computer analysis for particular names, internet addresses, and trigger words. Targeted surveillance refers to intercepts focused on one person or phone number. 1 For the Record 7 (Jan. 2007), available at http://www.lawandsecurity.org/Portals/0/Documents/NSA_jan_07.pdf; see 

also Aid, supra note 2659, at 287 88 ( It would appear that there are between ten and twelve programs being run by NSA dealing directly in some fashion with the agency s warrantless SIGINT

efforts, including at least a half-dozen strictly compartmentalized SIGINT collection, processing, analytic, and reporting projects handling different operational aspects of the problem. ); id. at 188

( The only one of these NSA programs that the Bush administration has publicly acknowledged is

the warrantless eavesdropping program, which the White House labeled in 2005 as the Terrorist

Surveillance Program (TSP). All other aspects of NSA s SIGINT collection work that touch on the

domestic front have remained unacknowledged. ). 2668. ACLU, 438 F. Supp. 2d at 775 76, 778 80, 782; ACLU, 493 F.3d at 650; see Eggen &

Linzer, supra note 2666; Gail Gibson, NSA Wiretaps Ruled Illegal, Chi. Trib., Aug. 18, 2006, News, at 1; Ron Hutcheson & Margaret Talev, Wiretap Program Is Ruled Illegal, San Jose Mercury News, Aug. 18, 2006, at A1; Adam Liptak & Eric Lichtblau, U.S. Judge Finds Wiretap Actions Violate the Law, N.Y. Times, Aug. 18, 2006, at A1; McLure, supra note 2663; Romero &

Temple-Raston, supra note 275, at 149, 195. 

Tim Reagan interviewed Judge Taylor for this report in the judge s chambers on December 7, 2006.

2669. ACLU, 438 F. Supp. 2d at 782; Judgment and Permanent Injunction Order, ACLU, No. 2:06-cv-10204 (E.D. Mich. Aug. 17, 2006).

2670. ACLU, 493 F.3d at 648, 687 88; see ACLU v. NSA, 467 F.3d 590 (6th Cir. 2006) (staying injunction pending appeal); Dismissal, ACLU, No. 2:06-cv-10204 (E.D. Mich. Nov. 28, 2007); 

see also Amy Goldstein, Lawsuit Against Wiretaps Rejected, Wash. Post, July 7, 2007, at A1;

Adam Liptak, Panel Dismissed Suit Challenging Secret Wiretaps, N.Y. Times, July 7, 2007, at

A1; Charlie Savage, Court Gives Bush Win on Surveillance, Boston Globe, July 7, 2007, at 1A.

2671. ACLU, 493 F.3d at 653 ( the plaintiffs do not and because of the State Secrets Doctrine cannot produce any evidence that any of their own communications have ever been intercepted by the NSA ); id. at 692 (Gibbons, concurring in the judgment) ( Under any understanding

of constitutional standing, the plaintiffs are ultimately prevented from establishing standing because of the state secrets privilege. ).
National Security Case Management Studies (11/14/2011) 303

Judge Ronald Lee Gilman would have affirmed the injunction.2672 The Supreme

Court denied certiorari.2673

Lawyers for an Islamic charity claimed that they possessed inadvertently disclosed direct evidence that they had been improperly surveiled, but the U.S. Court 

of Appeals for the Ninth Circuit held that the proffered evidence was too secret to

afford them standing.2674 On remand, the district court ruled that an amended

complaint alleged sufficient public information to create inferences supporting the 

plaintiffs claims,2675and the plaintiffs were entitled to summary judgment because the government did not rebut those inferences.2676

On February 1, 2007, because of orders obtained from the Foreign Intelligence Surveillance Court (FISC), the government abandoned the warrantless feature of the surveillance program.2677

 2672. Id. at 693, 720 (Gilman, dissenting).

For this report, Tim Reagan interviewed Judge Batchelder in the judge s Cincinnati chambers

on October 30, 2007; interviewed Judge Gilman in the judge s home chambers on October 29, 2007; and interviewed Judge Gibbons in the judge s home chambers on October 29, 2007, and by

telephone on November 1, 2007.

2673. ACLU v. NSA, 552 U.S. 1179 (2008); Docket Sheet, ACLU v. NSA, No. 07-468 (U.S. Oct. 9, 2007) (noting denial of the petition on Feb. 19, 2008, after consideration at conferences on

Jan. 18 and Feb. 15, 2008); see Linda Greenhouse, Justices Will Hear Case on Evidence Suppression, N.Y. Times, Feb. 20, 2008, at A15.

2674. Al-Haramain Islamic Found. v. Bush, 507 F.3d 1190, 1193 95, 1205 (9th Cir. 2007); In 

re NSA Telecomm. Records Litig., 564 F. Supp. 2d 1109, 1110 15, (N.D. Cal. 2008); see Lichtblau, supra note 2667. 2675. In re NSA Telecomm. Records Litig., 595 F. Supp. 2d 1077, 1082 86 (N.D. Cal. 2009).

2676. In re NSA Telecomm. Records Litig., 700 F. Supp. 2d 1182 (N.D. Cal. 2010); see Order, Al-Haramain Islamic Found. v. Bush, No. 3:07-cv-109 (N.D. Cal. Dec. 21, 2010) [hereinafter

Al-Haramain Remedies Order] (awarding damages and attorney fees).

2677. Al-Haramain Islamic Found., 507 F.3d at 1194; ACLU, 493 F.3d at 651 n.4; Al- Haramain Remedies Order, supra note 2676, at 8; PSP Report, supra note 2659, at 30; Notice of

Attorney General s Letter to Congress, In re NSA Telecomm. Records Litig., No. 3:06-md-1791 

(N.D. Cal. Jan. 17, 2007); see Dan Eggen, Court Will Oversee Wiretap Program, Wash. Post, Jan. 18, 2007, at A1 (reporting a hybrid effort that includes both individual warrants and the authority

for eavesdropping on more broadly defined groups of people ); Frontline: Spying on the Home

Front (PBS television broadcast May 15, 2007) [hereinafter Home Front]; Eric Lichtblau & David 

Johnston, Court to Oversee U.S. Wiretapping in Terror Cases, N.Y. Times, Jan. 18, 2007, at A1;

Adam Liptak, Secrecy at Issue in Suits Opposing Domestic Spying, N.Y. Times, Jan. 26, 2007, at

A1; Romero & Temple-Raston, supra note 275, at 195. But see Walter Pincus, Intelligence Chief

Decries Constraints, Wash. Post, May 2, 2007, at A7 (reporting congressional testimony from the

new director of national intelligence that the FISA court s January 2007 orders have prevented 

agencies from collecting intelligence that they should be collecting); James Risen, Administration 

Pulls Back on Surveillance Agreement, N.Y. Times, May 2, 2007, at A16 (reporting congressional

testimony from the new director of national intelligence that the President retained authority under 

Article II of the Constitution to resume warrantless wiretaps).

According to the government, on January 10, 2007, the FISA court issued classified negotiated 

orders, and the government decided that it no longer had to conduct its surveillance without warrants. Ex. 2, Notice of Filing, In re NSA, No. 3:06-md-1791 (N.D. Cal. Feb. 22, 2007) (also stating 

that the number, nature, and contents of the specific orders described herein are highly classified ); see also NSA Director s Declaration, ACLU v. NSA, Nos. 06-2095 and 06-2140 (6th Cir. Jan. 25, 2007) ( The new FISA Court orders are innovative and complex and it took considerable
304 National Security Case Management Studies (11/14/2011)

Six civil suits challenged the government directly, and dozens more challenged telephone companies assistance to the government. In addition, the government sued five states to stop their investigations of the warrantless wiretaps.

On July 10, 2008, President Bush signed amendments to FISA expanding the

government s statutory surveillance power and providing telephone companies 

with immunity for their assistance with pre-amendment surveillance.2678 A constitutional challenge is pending.2679

Judge Walker determined that the FISA amendments required dismissal of all

actions against telephone companies2680and summary judgment for the federal

government in all actions against states.2681 Judge Walker also dismissed suits

against the government that were generalized grievances insufficient to afford the

plaintiffs standing.2682

Suits Against the Government

The American Civil Liberties Union (ACLU), other civil rights organizations, journalists, scholars, and attorneys sought injunctive relief against the NSA s pro-

 time and work for the Government to develop the approach that was proposed to and ultimately

accepted by the Court. ), also filed as Ex. 1, Notice of Filing, supra. It was reported that another 

judge on the FISA court subsequently nullified some or all of the enabling orders. Charlie Savage, Bush Urges Congress to Pass Wiretap Bill, Boston Globe, Aug. 3, 2007, at 2A.

2678. FISA Amendments Act of 2008, Pub. L. 110-261, 122 Stat. 2436; see Jewel Dismissal 

Order, supra note 2659, at 6; Eric Lichtblau, Senate Approves Bill to Broaden Wiretap Powers, N.Y. Times, July 10, 2008, at A1.

2679. Docket Sheet, Amnesty Int l USA v. McConnell, No. 1:08-cv-6259 (S.D.N.Y. July 17, 2008). 

On the day of President Bush s signature, the ACLU filed an action in the Southern District of

New York challenging the amendments constitutionality, Complaint, id., and a motion before the

FISC seeking participation in that court s review of the amendments, Motion, In re Proceedings 

Required by § 702(i), No. Misc. 08-1 (FISA Ct. July 10, 2008).

In the Southern District of New York, Judge John G. Koeltl ruled that the plaintiffs lacked

standing because they could only claim that their communications might be monitored as a result

of the amendments, Amnesty Int l USA v. McConnell, 646 F. Supp. 2d 633 (S.D.N.Y. 2009), but

the court of appeals determined that the plaintiffs did have standing and remanded the action for a

determination of constitutionality, Amnesty Int l USA v. Clapper, 638 F.3d 118 (2d Cir.), rehearing en banc denied, ___ F.3d ___, 2011 WL 4381737 (2d Cir. 2011) (rehearing denied on a vote

of six to six); see Eric Lichtblau, Court Revives Lawsuit Over Government Surveillance, N.Y. Times, Mar. 22, 2011, at A17; Eric Lichtblau, Split Decision and Barbed Comments Show a Court 

Deeply Divided on Wiretapping, N.Y. Times, Sept. 22, 2011, at A15; Larry Neumeister, Federal 

Appellate Court Reinstates Eavesdropping Suit, Wash. Post, Mar. 22, 2011, at A2.

The FISC denied the ACLU s motion, Opinion, In re Proceedings Required by § 702(i), No. Misc. 08-1 (FISA Ct. Aug. 27, 2008), available at http://www.aclu.org/pdfs/safefree/fisc_

decision.pdf. 2680. In re NSA Telecomm. Records Litig., 633 F. Supp. 2d 949 (N.D. Cal. 2009).

2681. In re NSA Telecomm. Records Litig., 630 F. Supp. 2d 1092 (N.D. Cal. 2009).

2682. Order, Center for Constitutional Rights, No. 3:07-cv-1115 (N.D. Cal. Jan. 31, 2011) [hereinafter Manhattan Action Dismissal Order]; Jewel Dismissal Order, supra note 2659.
National Security Case Management Studies (11/14/2011) 305

gram of warrantless wiretaps on January 17, 2006, in federal court in Detroit.2683

The court assigned the case to Judge Taylor,2684who enjoined the program on

August 17.2685 The government immediately appealed,2686 and the plaintiffs cross- appealed the court s dismissal on state-secrets grounds of their communication

records claims.2687 On July 6, 2007, the court of appeals vacated the injunction

and ordered the case dismissed,2688 with one judge dissenting.2689

Also on January 17, 2006, the Center for Constitutional Rights, a publicinterest law firm in New York, and members of its legal staff filed a similar suit in 

Manhattan, which the U.S. District Court for the Southern District of New York

assigned to Judge Gerard E. Lynch.2690 Judge Lynch heard arguments on the

plaintiffs motion for partial summary judgment2691and the government s motion

for dismissal on state-secrets grounds2692on September 5,2693 but did not rule before the case was transferred to Judge Walker.2694

 2683. United States v. Holy Land Foundation, 493 F.3d 469, 648 50 (5th Cir. 2007); Complaint, ACLU v. NSA, No. 2:06-cv-10204 (E.D. Mich. Jan. 17, 2006); see David Ashenfelter &

Niraj Wari, Suits Filed to Stop Domestic Spying, Detroit Free Press, Jan. 18, 2006, at 1; Eric Lichtblau, Two Groups Planning to Sue Over Federal Eavesdropping, N.Y. Times, Jan. 17, 2006, at

A14; Romero & Temple-Raston, supra note 275, at 71 72.

2684. Docket Sheet, ACLU, No. 2:06-cv-10204 (E.D. Mich. Jan. 17, 2006) [hereinafter E.D. Mich. ACLU Docket Sheet]; see Ashenfelter & Wari, supra note 2683. 2685. ACLU, 493 F.3d at 650; ACLU v. NSA, 438 F. Supp. 2d 754, 782 (E.D. Mich. 2006);

Order, ACLU, No. 2:06-cv-10204 (E.D. Mich. Aug. 17, 2006); see Eggen & Linzer, supra note 

2666; Gibson, supra note 2668; Hutcheson & Talev, supra note 2668; Liptak & Lichtblau, supra

note 2668; McLure, supra note 2663; Romero & Temple-Raston, supra note 275, at 149. The

court of appeals stayed the injunction pending appeal. ACLU v. NSA, 467 F.3d 590 (6th Cir. 2006); see Court Allows Warrantless Wiretapping During Appeal, Wash. Post, Oct. 5, 2006, at

A18; U.S. Eavesdropping Is Allowed to Continue During Appeal, N.Y. Times, Oct. 5, 2006, at

A23.

2686. Docket Sheet, ACLU v. NSA, No. 06-2095 (6th Cir. Aug. 17, 2006); Defendants Notice of Appeal, ACLU, No. 2:06-cv-10204 (E.D. Mich. Aug. 17, 2006); see Gibson, supra note 

2668; Hutcheson & Talev, supra note 2668; Liptak & Lichtblau, supra note 2668. 2687. ACLU, 493 F.3d at 648, 650; Docket Sheet, ACLU v. NSA, No. 06-2140 (6th Cir. Aug. 30, 2006); Plaintiffs Notice of Appeal, ACLU, No. 2:06-cv-10204 (E.D. Mich. Aug. 24, 2006). 

In the appeal, eleven amicus curiae briefs were filed. Docket Sheets, ACLU, Nos. 06-2095 and

06-2140 (6th Cir. Aug. 17 and 30, 2006) [hereinafter 6th Cir. ACLU Docket Sheets].

2688. ACLU, 493 F.3d at 648, 687 88; see Goldstein, supra note 2670; Liptak, supra note 

2670; Savage, supra note 2670. 2689. ACLU, 493 F.3d at 693 720 (Gilman, dissenting).

2690. Complaint, Center for Constitutional Rights v. Bush, No. 1:06-cv-313 (S.D.N.Y. Jan. 17, 

2006); Docket Sheet, id.; Manhattan Action Dismissal Order, supra note 2682, at 2; see Ashenfelter & Wari, supra note 2683; Lichtblau, supra note 2683. Tim Reagan interviewed Judge Lynch for this report by e-mail on May 16, 2007.

Judge Lynch was elevated to the U.S. Court of Appeals for the Second Circuit on September

18, 2009, Federal Judicial Center Biographical Directory of Federal Judges, http://www.fjc.gov/ 

public/home.nsf/hisj, and he authored the opinion giving standing to the constitutional challenge

to the 2008 FISA amendments, Amnesty Int l USA v. Clapper, 638 F.3d 118 (2d Cir. 2011).

2691. Plaintiffs Partial Summary Judgment Brief, Center for Constitutional Rights, No. 1:06- cv-313 (S.D.N.Y. Mar. 9, 2006).

2692. Government s Brief, id. (May 27, 2006).
306 National Security Case Management Studies (11/14/2011)

Seventy-two members of Congress filed amicus curiae briefs supporting the

plaintiffs in these two cases.2695

The Al-Haramain Islamic Foundation a charity the government accused of

aiding terrorists and two of its attorneys filed a federal suit in Portland, Oregon, on February 28, 2006, claiming not that the plaintiffs communications might be 

tapped, but that their communications actually were tapped, according to inadvertently disclosed top-secret evidence.2696 The secret evidence was improperly included in materials submitted to the foundation s attorneys in August 2004 in an

action to freeze the foundation s assets because of its alleged support of terror-

 2693. Transcript, id. (Sept. 5, 2006) [hereinafter Center for Constitutional Rights Sept. 5, 2006, Transcript]; Order, id. (Aug. 8, 2006); see Adam Liptak, Judge Hears Arguments on Feder- al Spying Program, N.Y. Times, Sept. 6, 2006, at A14.

2694. Manhattan Action Dismissal Order, supra note 2682, at 5; Interview with Hon. Gerard

E. Lynch, May 16, 2007.

2695. Brief by Members of Congress, Center for Constitutional Rights, No. 1:06-cv-313 

(S.D.N.Y. May 31, 2006); Brief by Members of Congress, ACLU v. NSA, No. 2:06-cv-10204 

(E.D. Mich. May 10, 2006).

2696. Al-Haramain Islamic Found. v. Bush, 507 F.3d 1190, 1193 95 (9th Cir. 2007); In re

NSA Telecomm. Records Litig., 700 F. Supp. 2d 1182, 1185 (N.D. Cal. 2010); Al-Haramain Islamic Found. v. Bush, 451 F. Supp. 2d 1215, 1218 19 (D. Or. 2006); Complaint, Al-Haramain 

Islamic Found. v. Bush, No. 3:06-cv-274 (D. Or. Feb. 28, 2006) (describing the document as

United States Treasury Office of Foreign Assets Control logs of . . . conversations ); see ACLU 

v. NSA, 493 F.3d 644, 687 (6th Cir. 2007) ( In Al-Haramain Islamic Foundation, Inc. v. Bush, 451 F. Supp. 2d 1215, 1226 (D. Or. 2006), unlike the present case, the plaintiffs purported to have

evidence proving that their own communications had actually been intercepted. ); Al-Haramain

Remedies Order, supra note 2676, at 2; see also Ashbel S. Green, U.S. Attacks Lawsuit, Arguing

Secret Rationale for Secret File, Oregonian, Apr. 15, 2006, at B1 [hereinafter U.S. Attacks Lawsuit]; Patrick Radden Keefe, State Secrets, New Yorker, Apr. 28, 2008, at 28, 28, 31; Lichtblau, supra note 2667; Liptak, supra note 2667; Liptak, supra note 2670; McLure, supra note 2663; 

Justin Scheck, NSA s Wiretaps Face Scrutiny in S.F. Courtroom, S.F. Recorder, Apr. 10, 2006, at 1.

Al Haramain was established, with help from the Saudi royal family, in 1991. Keefe, supra, at 29. Al Haramain Oregon was incorporated in 1991. Id. at 30; see also The 9/11 Commission 

Report 170 (2004) (describing the charity as a suitable source for Al-Qaeda funds from sympathetic employees because of its lax external oversight and ineffective internal controls ). The document s value to plaintiffs is in its confirmation that plaintiffs were targets of the

President s warrantless electronic surveillance program which establishes their standing to prosecute this lawsuit. Plaintiffs Reply Brief at 15, Al-Haramain Islamic Found., No. 3:06-cv-274 

(D. Or. May 22, 2006) (italics omitted). The document apparently reports clandestinely monitored

telephone calls between the charity s director in Saudi Arabia and its lawyers in Washington, D.C. Complaint at 3 4, id. (Feb. 28, 2006); see Ashbel S. Green, Lawsuits Challenge Feds Stance on

Secrets, Oregonian, June 7, 2006, at A1 [hereinafter Feds Stance]; Keefe, supra, at 28 (the four- page document appears to have been a summary of intercepted telephone conversations between

two of Al Haramain s American lawyers, in Washington, and one of the charity s officers, in Saudi Arabia ); id. at 30 31 ( The document was dated May 24, 2004; the conversations took place in

March and April just as the Treasury Department was investigating the charity. ); Pamela A. MacLean, Critical Juncture for Spying Cases, Nat l L.J., July 16, 2007, at 5 (describing the document as a 2004 phone log from the spy program ).
National Security Case Management Studies (11/14/2011) 307

ism.2697 The U.S. District Court for the District of Oregon assigned the case

against the government to Judge Garr M. King,2698 who denied a motion by the

government to dismiss the case on state-secrets grounds and certified an immediate appeal.2699 The U.S. Court of Appeals for the Ninth Circuit affirmed in an

opinion authored by Circuit Judge M. Margaret McKeown and joined by Judges

Harry Pregerson and Michael Daly Hawkins, but the court ruled that the plaintiffs

could not rely on the secret evidence.2700

The court of appeals determined that the warrantless wiretap program revealed 

by the New York Times in December 2005 was not a secret, because the government had publicly disclosed and discussed so many of its details, so a suit challenging the program could not be dismissed on state-secrets grounds.2701 The 

 2697. Al-Haramain Islamic Found., 507 F.3d at 1193 95; In re NSA, 700 F. Supp. 2d at 1185;

In re NSA Telecomm. Records Litig., 564 F. Supp. 2d 1109, 1111 (N.D. Cal. 2008); Al-Haramain 

Islamic Found., 451 F. Supp. 2d at 1218 19; Defendants Response to the Oregonian s Motion to

Intervene and to Unseal Records at 2, Al-Haramain Islamic Found., No. 3:06-cv-274 (D. Or. Apr. 14, 2006); Acting Office of Foreign Assets Control Director s Declaration, Attach. A, id.; see 

Keefe, supra note 2696, at 28; Lichtblau, supra note 2667; Liptak, supra note 2667; Liptak, supra

note 2670; MacLean, supra note 2696 ( According to published accounts, the alleged wiretap log

covered March and April 2004, when former Attorney General John Ashcroft advised the president that the program was illegal. ); Matthew Preusch, U.S. Freezes a Charity s Assets, N.Y. Times, Feb. 21, 2004, at A9; Scheck, supra note 2696 ( The most important piece of evidence in

the Portland suit is a secret document accidentally disclosed by the FBI in 2004 through discovery

in another lawsuit. It s currently being held in a secure location in Seattle, despite efforts by the

federal government to take it back. ). The Saudi Arabian government announced in 2004 that it would shut down the charity. See 

Douglas Jehl, Saudis Are Shutting Down a Charity Tied to Terrorists, N.Y. Times, June 3, 2004, at A12.

2698. Docket Sheet, Al-Haramain Islamic Found., No. 3:06-cv-274 (D. Or. Feb. 28, 2006)

[hereinafter D. Or. Al-Haramain Islamic Found. Docket Sheet]; see Ashbel S. Green, Secrecy In- creasingly Cloaks Terror Cases, Oregonian, Apr. 25, 2006, at A1. 

For this report, Tim Reagan interviewed Judge King and his law clerk Carra Sahler in the

judge s chambers on February 14, 2007. 2699. Al-Haramain Islamic Found., 507 F.3d at 1195 96; Al-Haramain Islamic Found., 451 F. 

Supp. 2d at 1217, 1220 28, 1233; see Liptak, supra note 2667. The court of appeals agreed to hear 

the appeal. Order, Al-Haramain Islamic Found. v. Bush, No. 06-80134 (9th Cir. Dec. 21, 2006)

(granting permission to appeal); see Docket Sheet, Al-Haramain Islamic Found. v. Bush, No. 06- 36083 (9th Cir. Dec. 22, 2006) [hereinafter 9th Cir. Al-Haramain Islamic Found. Docket Sheet].

Proceedings in the district court, which were transferred to the Northern District of California, were stayed pending the interlocutory appeal. 9th Cir. Al-Haramain Islamic Found. Docket Sheet, supra note 2699 (noting a stay order on Apr. 4, 2007).

2700. Al-Haramain Islamic Found., 507 F.3d 1190; see id. at 1193 (describing the privilege as

an evidentiary privilege that protects national security and military information in appropriate

circumstances ); see Keefe, supra note 2696, at 33; Lichtblau, supra note 2667. For this report, Tim Reagan interviewed Judge McKeown and her law clerk Kathy Tran in the

judge s home chambers on January 9, 2008; interviewed Judge Hawkins in the judge s San Francisco chambers on September 30, 2008; and interviewed Judge Pregerson in the judge s home

chambers on October 1, 2008.

2701. Al-Haramain Islamic Found., 507 F.3d at 1192 95, 1197 201; id. at 1192 ( Though its

operating parameters remain murky, and certain details may forever remain so, much of what is
308 National Security Case Management Studies (11/14/2011)

state-secrets privilege did apply, however, to the evidence that the charity and its

attorneys proffered to establish standing.2702 The court remanded the case for a

determination of whether FISA afforded the plaintiffs a statutory mechanism for

challenging the legality of the alleged surveillance that preempts the privilege.2703

Judge Walker, to whom the case was transferred, determined that FISA did

preempt the state-secrets privilege, but the plaintiffs would still have to establish

standing without access to the secret evidence.2704 On January 5, 2009, Judge

Walker ruled that an amended complaint did that.2705 On March 31, 2010, Judge

Walker granted the plaintiffs summary judgment, because the plaintiffs submitted 

public evidence that they were surveilled and the government presented no evidence that it had a warrant for the surveillance.2706

Judge Walker awarded the two Al-Haramain attorneys $20,400 each in liquidated FISA damages, as requested by the plaintiffs, representing $100 per day for

the 204 days between the freezing of Al-Haramain s assets and a designation of

Al-Haramain as a Specially Designated Global Terrorist.2707 Judge Walker also

awarded $2,537,399.45 in attorney fees and costs.2708 Judge Walker ruled against 

burdening the taxpayers with punitive damages2709and ruled that as a Specially

Designated Global Terrorist Al-Haramain was ineligible for damages.2710 Appeals 

are pending.2711

Suits against the government challenging warrantless wiretaps were also filed

in Brooklyn2712and Atlanta.2713 The government moved on July 18, 2006, to dis-

 known about the Terrorist Surveillance Program ( TSP ) was spoon-fed to the public by the President and his administration. ); see Lichtblau, supra note 2667. 2702. Al-Haramain Islamic Found., 507 F.3d at 1201 05; see Lichtblau, supra note 2667. 2703. Al-Haramain Islamic Found., 507 F.3d at 1193, 1205 06; see Lichtblau, supra note 

2667. 2704. In re NSA Telecomm. Records Litig., 564 F. Supp. 2d 1109 (N.D. Cal. 2008); see Eric 

Lichtblau, Judge Rejects Bush s View on Wiretaps, N.Y. Times, July 3, 2008, at A15.

2705. In re NSA Telecomm. Records Litig., 595 F. Supp. 2d 1077, 1082 86 (N.D. Cal. 2009);

see Carrie Johnson, Handling of State Secrets at Issue, Wash. Post, Mar. 25, 2009, at A1.

2706. In re NSA Telecomm. Records Litig., 700 F. Supp. 2d 1182 (N.D. Cal. 2010); see Charlie Savage & James Risen, Federal Judge Finds N.S.A. Wiretaps Were Illegal, N.Y. Times, Apr. 1, 

2010, at A1.

2707. Al-Haramain Remedies Order, supra note 2676, at 2, 9, 11, 13 14, 46; see id. at 12

( Plaintiffs estimate of the duration of unlawful surveillance appears conservative. ); see also 50 

U.S.C. § 1810(a) (providing for actual damages, but not less than liquidated damages of $1,000

or $100 per day for each day of [FISA] violation, whichever is greater ); Eric Lichtblau, U.S. Or- dered to Pay Group of Muslims, N.Y. Times, Dec. 22, 2010, at A23.

2708. Al-Haramain Remedies Order, supra note 2676, at 3, 28 46.

2709. Id. at 2.

2710. Id. at 2 3, 14 16, 29, 46.

2711. Docket Sheet, Al-Haramain Islamic Found. v. Obama, No. 11-15535 (9th Cir. Mar. 7, 2011) (Al-Haramain s appeal, noting that the last brief is due Dec. 14, 2011); Docket Sheet, Al- Haramain Islamic Found. v. Obama, No. 11-15468 (9th Cir. Feb. 25, 2011) (government s appeal).

2712. Complaint, Shubert v. Bush, No. 1:06-cv-2282 (E.D.N.Y. May 17, 2006); see Jewel

Dismissal Order, supra note 2659, at 4.

2713. Complaint, Guzzi v. Bush, No. 1:06-cv-136 (N.D. Ga. Jan. 20, 2006).
National Security Case Management Studies (11/14/2011) 309

miss the Atlanta case for lack of standing,2714and the government moved on May

25, 2007, to dismiss the Brooklyn case on state-secrets grounds.2715

The JPML consolidated all of these cases with the cases before Judge Walker, except for the Detroit action by the ACLU, which already was on appeal.2716

Nearly two years later, an action was filed against the government by plaintiffs 

who filed the first action against a telephone company,2717and Judge Walker accepted assignment of the case as related to the others before him.2718

On January 21, 2010, Judge Walker dismissed the last-filed action and the action originally filed in Brooklyn for lack of standing: The two cases at bar are, in

essence, citizen suits seeking to employ judicial remedies to punish and bring to

heel high-level government officials for the allegedly illegal and unconstitutional

warrantless electronic surveillance program or programs now widely, if incompletely, aired in the public forum. 2719 Thereafter, plaintiffs voluntarily dismissed

the Atlanta action,2720and Judge Walker dismissed the Manhattan action for lack

of standing.2721

Suits Against Telephone Companies

In 2006 and 2007, 45 suits were filed against telephone companies for their assistance with the warrantless wiretaps. Five were voluntarily dismissed, one was a

pro se prisoner suit dismissed by the court, and one was dismissed on state-secrets 

grounds with leave to amend the complaint. The latter case and 38 other active

 2714. Government Motion, id. (July 18, 2006).

2715. Government Motion, In re NSA Telecomm. Records Litig., No. 3:06-md-1791 (N.D. Cal. May 25, 2007).

2716. Dec. 15, 2006, J.P.M.L. Transfer Order, supra note 2664; Conditional Transfer Order 2, supra note 2664; Conditional Transfer Order 1, supra note 2664; see Docket Sheet, Center for

Constitutional Rights v. Bush, No. 3:07-cv-1115 (N.D. Cal. Feb. 23, 2007) [hereinafter Manhattan

Action Docket Sheet] (action transferred from the Southern District of New York); Docket Sheet, Shubert v. Bush, No. 3:07-cv-693 (N.D. Cal. Feb. 2, 2007) (action transferred from the Eastern

District of New York); Docket Sheet, Al-Haramain Islamic Found. v. Bush, No. 3:07-cv-109 

(N.D. Cal. Jan. 9, 2007) (action transferred from the District of Oregon); Docket Sheet, Guzzi v. Bush, No. 3:06-cv-6225 (N.D. Cal. Oct. 3, 2006) (action transferred from the Northern District of

Georgia).

2717. Complaint, Jewel v. NSA, No. 3:08-cv-4373 (N.D. Cal. Sept. 18, 2008).

2718. Order, id. (Oct. 28, 2008).

2719. Jewel Dismissal Order, supra note 2659, at 16 17.

Appeals were heard on August 31, 2011. http://www.ca9.uscourts.gov/media/view_subpage. 

php?pk_id=0000008011 (audio recording of oral argument in Jewel v. NSA, No. 10-15616); http:// 

www.ca9.uscourts.gov/media/view_video_subpage.php?pk_vid=0000006163 (video recording of

oral argument in Hepting v. AT&T Corp., No. 09-16676); Docket Sheet, Jewel v. NSA, No. 10- 15616 (9th Cir. Mar. 23, 2010); Docket Sheet, Hepting v. AT&T Corp., No. 10-16676 (9th Cir. Aug. 7, 2009).

2720. Order, Guzzi, No. 3:06-cv-6225 (N.D. Cal. Mar. 5, 2010).

2721. Manhattan Action Dismissal Order, supra note 2682. A notice of appeal was filed, Manhattan Action Docket Sheet, supra note 2716, but no appeal

was docketed.
310 National Security Case Management Studies (11/14/2011)

cases were consolidated in the Northern District of California before Judge Walker.

One suit filed against a telephone company predated the May 2006 USA Today article.2722 The Electronic Frontier Foundation filed a class action complaint

on behalf of telephone customers against AT&T on January 31, 2006, in federal

court in San Francisco.2723 To support their case, the plaintiffs filed under seal

evidence provided by a former AT&T employee.2724 The court assigned the case

to Judge Walker.2725

On May 30, another class action against AT&T was filed in federal court in

San Francisco,2726and the court assigned this case to Judge Walker as related to

the first case against AT&T.2727

On June 5 and June 6, telephone companies removed similar cases against

them from San Francisco Superior Court to federal court.2728

The later removed case was filed on May 26 by California affiliates of the

ACLU and various individuals, including a former Republican member of Congress, a doctor, ministers, lawyers, and journalists, seeking relief under California

state law, which the complaint alleged provide[s] the most robust protection for

 2722. See Cauley, supra note 2661. 2723. Docket Sheet, Hepting v. AT&T Corp., No. 3:06-cv-672 (N.D. Cal. Jan. 31, 2006) [hereinafter N.D. Cal. Hepting Docket Sheet]; see Amended Complaint, id. (Feb. 22, 2006); see also

Jewel Dismissal Order, supra note 2659, at 3 4; Home Front, supra note 2677; John Markoff, AT&T Is Accused in Eavesdropping, N.Y. Times, Feb. 1, 2006, at A20; Scott Shane, Attention in N.S.A. Debate Turns to Telecom Industry, N.Y. Times, Feb. 11, 2006, at A11.

The lead plaintiff was motivated to sue by the experiences of his father, whose international

correspondence was monitored for years because of correspondence with communist China arising 

from his picking up a shortwave Chinese broadcast at age 13. See Key Figure in Wiretapping Suit

Goes Public, Morning Edition (NPR radio broadcast Mar. 6, 2008).

2724. Hepting v. AT&T Corp., 439 F. Supp. 2d 974, 979, 989 (N.D. Cal. 2006); see McLure, 

supra note 2663; Scheck, supra note 2696. Judge Walker denied motions by news media to unseal the declarations, Order, In re NSA Telecomm. Records Litig., No. 3:06-md-1791 (N.D. Cal. Feb. 20, 2007), but they and portions of

their exhibits were later unsealed by stipulation, Order, id. (Oct. 1, 2007); Stipulation, id. (Sept. 

25, 2007).

2725. N.D. Cal. Hepting Docket Sheet, supra note 2723; see Scheck, supra note 2696. 2726. Complaint, Roe v. AT&T Corp., No. 3:06-cv-3467 (N.D. Cal. May 30, 2006).

2727. Related Case Order, id. (June 21, 2006).

2728. Notice of Removal, Campbell v. AT&T Commc ns of Cal., No. 3:06-cv-3596 (N.D. Cal. 

June 6, 2006) [hereinafter Campbell Notice of Removal]; Docket Sheet, Riordan v. Verizon

Commc ns, Inc., No. 3:06-cv-3574 (N.D. Cal. June 5, 2006).

The government moved to intervene as a defendant in these cases in order to defeat motions to

remand, U.S. Motion to Intervene, Campbell, No. 3:06-cv-3596 (N.D. Cal. Aug. 4, 2006); U.S. Motion to Intervene, Riordan, No. 3:06-cv-3574 (N.D. Cal. Aug. 4, 2006), and Judge Walker denied the remand motions, In re NSA Telecomm. Records Litig., 483 F. Supp. 2d 934 (N.D. Cal. 2007) (finding three grounds for federal jurisdiction: (1) the state-secrets privilege as an embedded 

federal issue, (2) the telephone companies allegedly acting on government instructions as satisfying the federal officer removal statute, and (3) the futility of remands given that the state would

permit the government to intervene as a defendant).
National Security Case Management Studies (11/14/2011) 311

the privacy of telephone customers. 2729 AT&T removed the case because federal law completely preempts any challenge Plaintiffs nominally could bring under

state law and Plaintiffs right to relief depends on the resolution of substantial

questions of federal law and because AT&T is alleged to have acted at the direction of the federal government.2730 This case was randomly assigned to Judge

Walker,2731who reassigned it to himself as related to the first case against

AT&T.2732

The earlier removed action was also filed in San Francisco Superior Court on

May 26, 2006, by California affiliates of the ACLU and various individuals, and it 

also alleged violations of state law, but against Verizon Communications, Inc.2733

The case was assigned to Judge Walker as related to the removed case against

AT&T.2734

On July 7, 2006, yet another class action was filed in San Francisco federal

court this one against MCI.2735 Judge Walker took assignment of this case as 

related to the first case filed against AT&T.2736

In the first San Francisco case against AT&T, the court denied the government s motion to dismiss on state-secrets grounds.2737 The court certified an appeal of its order,2738

and the court of appeals granted petitions for interlocutory

appeal by both the government and AT&T.2739 The appeal was heard on August

 2729. Complaint at 1, Campbell v. AT&T Commc ns of Cal., No. 06-452626 (Cal. Sup. Ct. S.F. May 26, 2006), attached as Ex. A to Campbell Notice of Removal, supra note 2728. 2730. Campbell Notice of Removal, supra note 2728. 2731. Docket Sheet, Campbell, No. 3:06-cv-3596 (N.D. Cal. June 6, 2006); see Administrative 

Motion at 1, Riordan, No. 3:06-cv-3574 (N.D. Cal. June 12, 2006). 2732. Related Case Order, Campbell, No. 3:06-cv-3596 (N.D. Cal. June 20, 2006).

2733. See Administrative Motion at 1, Riordan, No. 3:06-cv-3574 (N.D. Cal. June 12, 2006).

2734. Related Case Order, id. (July 5, 2006).

2735. Class Action Complaint, Spielfogel-Landis v. MCI, LLC, No. 3:06-cv-4221 (N.D. Cal. July 7, 2006).

2736. Related Case Order, id. (July 17, 2006).

2737. Hepting v. AT&T Corp., 439 F. Supp. 2d 974 (N.D. Cal. 2006); see Jewel Dismissal Order, supra note 2659, at 5; Markoff, supra note 2667; McLure, supra note 2663; Mohammed, supra note 2667. 2738. Hepting, 439 F. Supp. 2d at 1011; see Jewel Dismissal Order, supra note 2659, at 5;

McLure, supra note 2663. 2739. Order, United States v. AT&T Corp., Nos. 06-80109 and 06-80110 (9th Cir. Nov. 7, 2006), attached, e.g., as Attach. B to Joint Case Management Statement, In re NSA Telecomm. Records Litig., No. 3:06-md-1791 (N.D. Cal. Nov. 7, 2006); see Docket Sheet, Hepting v. AT&T

Corp., No. 06-17137 (9th Cir. Nov. 8, 2006) (appeal by the government); Docket Sheet, Hepting 

v. AT&T Corp., No. 06-17132 (9th Cir. Nov. 8, 2006) (appeal by AT&T).

The appeals were consolidated. Docket Sheets, Hepting, Nos. 06-17132 and 06-17137 (9th Cir. 

Nov. 8, 2006) [hereinafter 9th Cir. Hepting Docket Sheets]. Twelve amicus curiae briefs were

filed. Docket Sheet, Hepting, No. 06-17132 (9th Cir. Nov. 8, 2006).
312 National Security Case Management Studies (11/14/2011)

15, 2007, in San Francisco,2740 but the court remanded the case to the district

court on August 21, 2008, in light of the July 10 amendments to FISA.2741

Dozens of cases against telephone companies alleging improper provision of

private information to the government were filed in federal courts in other districts.2742 The JPML transferred those cases not voluntarily dismissed to Judge

Walker.2743

A Chicago attorney filed a class action against telephone companies on May

15, 2006.2744 The U.S. District Court for the Northern District of Illinois assigned

the case to Judge Matthew F. Kennelly.2745 The ACLU s Illinois branch filed a

class action against AT&T on May 22, with Studs Terkel and the Illinois House

of Representatives majority leader among the named plaintiffs.2746 Judge Kennelly took assignment of this case as related to the first case.2747 Judge Kennelly dismissed the second case on state-secrets grounds, but granted the plaintiffs leave to 

amend,2748which they did.2749 A third class action against AT&T in Chicago fed-

 2740. 9th Cir. Hepting Docket Sheets, supra note 2739; see Adam Liptak, U.S. Defends Sur- veillance Before 3 Skeptical Judges, N.Y. Times, Aug. 16, 2007, at A13; Karl Vick, Judges Skeptical of State-Secrets Claim, Wash. Post, Aug. 16, 2007, at A4.

2741. Hepting v. AT&T Corp., 539 F.3d 1157 (9th Cir. 2008); see Jewel Dismissal Order, supra note 2659, at 7.

2742. Jewel Dismissal Order, supra note 2659, at 4.

2743. Supra note 2664; see Carey, supra note 2663; Egelko, supra note 2664. Among the cases filed in the Northern District of California, only the first action against

AT&T was part of the multidistrict consolidation order. In re NSA Telecomm. Records Litig., 444 

F. Supp. 2d 1332 (J.P.M.L. 2006). But the others were consolidated before Judge Walker. Order, In re NSA, No. 3:06-md-1791 (N.D. Cal. Aug. 31, 2006); see also Aug. 14, 2006, docket sheet

notations in Docket Sheet, Spielfogel-Landis v. MCI, LLC, No. 3:06-cv-4221 (N.D. Cal. July 7, 2006); Docket Sheet, Campbell v. AT&T Commc ns of Cal., No. 3:06-cv-3596 (N.D. Cal. June 6, 2006); Docket Sheet, Riordan v. Verizon Commc ns, Inc., No. 3:06-cv-3574 (N.D. Cal. June 5, 2006); Docket Sheet, Roe v. AT&T Corp., No. 3:06-cv-3467 (N.D. Cal. May 30, 2006).

Potential tag-along actions filed in the transferee district require no action on the part of the

Panel and requests for assignment of such actions to the Section 1407 transferee judge should be

made in accordance with local rules for the assignment of related actions. J.P.M.L. Rule 7.5(a). 2744. Complaint, Schwarz v. AT&T Corp., No. 1:06-cv-2680 (N.D. Ill. May 15, 2006) (class

action on behalf of the attorney and others against AT&T); see Amended Complaint, id. (May 22, 2006) (adding other telephone companies and the government as defendants); Second Amended

Complaint, Joll v. AT&T Corp., id. (July 7, 2006) (removing the attorney as a plaintiff, which

caused the case name to change, and removing the government as a defendant).

2745. Docket Sheet, id. (May 15, 2006).

Tim Reagan interviewed Judge Kennelly for this report in the judge s chambers on May 24, 

2007.

2746. Complaint, Terkel v. AT&T, No. 1:06-cv-2837 (N.D. Ill. May 22, 2006); see Amended 

Complaint, id. (June 5, 2006).

Studs Terkel died, while his action was pending, on October 31, 2008, at age 96. See Bart 

Barnes & Patricia Sullivan, Celebrated Author Elevated Listening to an Art, Wash. Post, Nov. 1, 2008, at A1; William Grimes, Studs Terkel, Listener to Americans, Is Dead at 96, N.Y. Times, Nov. 1, 2008, at B9.

2747. Executive Committee Order, Terkel, No. 1:06-cv-2837 (N.D. Ill. June 2, 2006).

2748. Terkel v. AT&T, 441 F. Supp. 2d 899, 901, 920 (N.D. Ill. 2006); see Liptak, supra note 

2666; McLure, supra note 2663; Robinson, supra note 2666.
National Security Case Management Studies (11/14/2011) 313

eral court was filed on May 24

2750

and assigned to Judge Kennelly as related to

the first two.2751 All of these cases were transferred to Judge Walker.2752

Also transferred to Judge Walker were 31 cases2753originally filed in the following districts:

the Eastern District of California (one case);2754

the Southern District of California (one case);2755

the Southern District of Florida (two cases);2756

the Northern District of Georgia (one case);2757

the District of Hawaii (one case);2758

 Judge Kennelly, however, denied AT&T s motion to dismiss on standing grounds. Terkel, 441

F. Supp. 2d at 901, 903 04, 920.

2749. Second Amended Class Action Complaint, Terkel, No. 1:06-cv-2837 (N.D. Ill. July 31, 2006).

2750. Complaint, Waxman v. AT&T Corp., No. 1:06-cv-2900 (N.D. Ill. May 24, 2006).

2751. Executive Committee Order, id. (June 12, 2006). 

2752. The first two cases were part of the original multidistrict consolidation. In re NSA Telecomm. Records Litig., 444 F. Supp. 2d 1332 (J.P.M.L. 2006); see Docket Sheet, Joll v. AT&T

Corp., No. 3:06-cv-5485 (N.D. Cal. Sept. 7, 2006); Docket Sheet, Terkel v. AT&T Corp., No. 3:06-cv-5340 (N.D. Cal. Aug. 30, 2006).

The third case was transferred to Judge Walker as a tag-along case in the multidistrict consolidation. Conditional Transfer Order 1, supra note 2664; see Docket Sheet, Waxman v. AT&T

Corp., No. 3:06-cv-6294 (N.D. Cal. Oct. 6, 2006).

2753. In addition to the cases listed here, Verizon stated that it intended to remove one case

filed against it in Nebraska s state court. Defendant s Administrative Motion, Riordan v. Verizon

Commc ns, Inc., No. 3:06-cv-3574 (N.D. Cal. Aug. 14, 2006) (expressing an intention to remove

Davis v. AT&T, No. 1063569 (Neb. Dis. Ct. Douglas County)).

2754. Notice of Removal, Conner v. AT&T, No. 1:06-cv-632 (E.D. Cal. May 23, 2006). This

case was part of the original multidistrict consolidation. In re NSA, 444 F. Supp. 2d 1332; see

Docket Sheet, Conner v. AT&T, No. 3:06-cv-5576 (N.D. Cal. Sept. 12, 2006).

2755. Complaint, Souder v. AT&T Corp., No. 3:06-cv-1058 (S.D. Cal. May 12, 2006). This

case was part of the original multidistrict consolidation. In re NSA, 444 F. Supp. 2d 1332; see

Docket Sheet, Souder v. AT&T Corp., No. 3:06-cv-5067 (N.D. Cal. Aug. 22, 2006).

2756. Two cases were transferred from the Southern District of Florida:

1. Complaint, Fortnash v. AT&T Corp., No. 0:06-cv-60828 (S.D. Fla. June 12, 2006); see 

John Holland, Hollywood Conservative Files Suit Over NSA Wiretaps, S. Fla. Sun- Sentinel, June 28, 2006, at 1B. This case was transferred to Judge Walker as a tag-along 

case in the multidistrict consolidation. Conditional Transfer Order 1, supra note 2664; 

see Docket Sheet, Fortnash v. AT&T Corp., No. 3:06-cv-6385 (N.D. Cal. Oct. 12, 2006).

2. Notice of Removal, Jacobs v. AT&T Corp., No. 0:07-cv-60365 (S.D. Fla. Mar. 14, 2007). This case was transferred to Judge Walker as a tag-along case in the multidistrict 

consolidation. Conditional Transfer Order 6, supra note 2664; see Docket Sheet, Jacobs 

v. AT&T Corp., No. 3:07-cv-2538 (N.D. Cal. May 14, 2007).

2757. Complaint, Lebow v. BellSouth Corp., No. 1:06-cv-1289 (N.D. Ga. May 25, 2006). This 

case was transferred to Judge Walker as a tag-along case in the multidistrict consolidation. Conditional Transfer Order 1, supra note 2664; see Docket Sheet, Lebow v. BellSouth Corp., No. 3:07- cv-464 (N.D. Cal. Jan. 24, 2007).

2758. Class Action Complaint, Crockett v. Verizon Wireless LLC, No. 1:06-cv-345 (D. Haw. June 26, 2006). This case was transferred to Judge Walker as a tag-along case in the multidistrict
314 National Security Case Management Studies (11/14/2011)

the Southern District of Indiana (two cases);2759

the Western District of Kentucky (one case);2760

the Eastern District of Louisiana (two cases);2761

the District of Maryland (one case);2762

the Western District of Michigan (one case);2763

the District of Minnesota (one case);2764

the Eastern District of Missouri (one case);2765

 consolidation. Conditional Transfer Order 1, supra note 2664; see Docket Sheet, Crockett v. Verizon Wireless LLC, No. 3:06-cv-6254 (N.D. Cal. Oct. 4, 2006).

2759. Two cases were transferred from the Southern District of Indiana:

1. Complaint, Cross v. AT&T Commc ns, Inc., No. 1:06-cv-847 (S.D. Ind. May 25, 2006).

2. Notice of Removal, Cross v. AT&T Commc ns, Inc., No. 1:06-cv-932 (S.D. Ind. June

14, 2006). 

These cases were transferred to Judge Walker as tag-along cases in the multidistrict consolidation. Conditional Transfer Order 1, supra note 2664; see Docket Sheet, Cross v. AT&T

Commc ns, Inc., No. 3:06-cv-6224 (N.D. Cal. Oct. 3, 2006) (transfer of S.D. Ind. No. 1:06-cv- 932); Docket Sheet, Cross v. AT&T Commc ns, Inc., No. 3:06-cv-6222 (N.D. Cal. Oct. 3, 2006)

(transfer of S.D. Ind. No. 1:06-cv-847).

2760. Complaint, Suchanek v. Sprint Nextel Corp., No. 1:06-cv-71 (W.D. Ky. May 18, 2006). This case was transferred to Judge Walker as a tag-along case in the multidistrict consolidation. 

Conditional Transfer Order 1, supra note 2664; see Docket Sheet, Suchanek v. Sprint Nextel

Corp., No. 3:06-cv-6295 (N.D. Cal. Oct. 6, 2006).

2761. Two cases were transferred from the Eastern District of Louisiana:

1. Complaint, Herron v. Verizon Global Networks, Inc., No. 2:06-cv-2491 (E.D. La. May

12, 2006). This case was part of the original multidistrict consolidation. In re NSA Telecomm. Records Litig., 444 F. Supp. 2d 1332 (J.P.M.L. 2006); see Docket Sheet, Herron v. Verizon Global Networks, Inc., No. 3:06-cv-5343 (N.D. Cal. Aug. 30, 2006).

2. Complaint, Hardy v. AT&T Corp., No. 2:06-cv-2853 (E.D. La. May 30, 2006). This

case was transferred to Judge Walker as a tag-along case in the multidistrict consolidation. Conditional Transfer Order 1, supra note 2664; see Docket Sheet, Hardy v. AT&T 

Corp., No. 3:06-cv-6924 (N.D. Cal. Nov. 7, 2006).

2762. Notice of Removal, Bready v. Verizon Md. Inc., No. 1:06-cv-2185 (D. Md. Aug. 23, 2006); see Plaintiffs Motion for Remand, id. (Sept. 6, 2006). This case was transferred to Judge

Walker as a tag-along case in the multidistrict consolidation. Order, id. (Oct. 4, 2006) (administratively closing the action while the case is pending in the transferee court); Conditional Transfer

Order 2, supra note 2664; see Docket Sheet, Bready v. Verizon Md. Inc., No. 3:06-cv-6313 (N.D. Cal. Oct. 10, 2006).

2763. Amended Complaint, Dubois v. AT&T Corp., No. 5:06-cv-85 (W.D. Mich. June 12, 2006); Complaint, id. (May 30, 2006). This case was transferred to Judge Walker as a tag-along 

case in the multidistrict consolidation. Conditional Transfer Order 1, supra note 2664; see Docket 

Sheet, Dubois v. AT&T Corp., No. 3:06-cv-6387 (N.D. Cal. Oct. 12, 2006).

2764. Notice of Removal, Roche v. AT&T Corp., No. 0:06-cv-4252 (D. Minn. Oct. 20, 2006). This case was transferred to Judge Walker as a tag-along case in the multidistrict consolidation. Conditional Transfer Order 5, supra note 2664; see Docket Sheet, Roche v. AT&T Corp., No. 3:07-cv-1243 (N.D. Cal. Mar. 2, 2007).

2765. Notice of Removal, Mink v. AT&T Commc ns of the Southwest, Inc., No. 4:06-cv-1113 

(E.D. Mo. July 20, 2006). This case was transferred to Judge Walker as a tag-along case in the

multidistrict consolidation. Dec. 15, 2006, J.P.M.L. Transfer Order, supra note 2664; Conditional

Transfer Order 1, supra note 2664 (noting objection to the transfer by the plaintiff); see Docket 
National Security Case Management Studies (11/14/2011) 315

the District of Montana (two cases);2766

the District of New Jersey (one case);2767

the Eastern District of New York (one case);2768

the Southern District of New York (four cases);2769

the District of Oregon (one case);2770

the Eastern District of Pennsylvania (one case);2771

 Sheet, Mink v. AT&T Commc ns of the Southwest, Inc., No. 3:06-cv-7934 (N.D. Cal. Dec. 29, 2006).

2766. Two cases were transferred from the District of Montana:

1. Complaint, Fuller v. Verizon Commc ns, Inc., No. 9:06-cv-77 (D. Mont. May 12, 2006).

2. Complaint, Dolberg v. AT&T Corp., No. 9:06-cv-78 (D. Mont. May 15, 2006).

These cases were part of the original multidistrict consolidation. In re NSA, 444 F. Supp. 2d

1332; see Docket Sheet, Dolberg v. AT&T Corp., No. 3:06-cv-5269 (N.D. Cal. Aug. 28, 2006);

Docket Sheet, Fuller v. Verizon Commc ns, Inc., No. 3:06-cv-5267 (N.D. Cal. Aug. 28, 2006).

2767. Amended Notice of Removal, Chulsky v. Cellco P ship, No. 2:06-cv-2530 (D.N.J. June

16, 2006); Notice of Removal, id. (June 6, 2006). This case was transferred to Judge Walker as a

tag-along case in the multidistrict consolidation. Conditional Transfer Order 1, supra note 2664; 

see Docket Sheet, Chulsky v. Cellco P ship, No. 3:06-cv-6570 (N.D. Cal. Oct. 20, 2006).

2768. Complaint, Marck v. Verizon Commc ns, Inc., No. 2:06-cv-2455 (E.D.N.Y. May 19, 2006). This case was part of the original multidistrict consolidation. In re NSA, 444 F. Supp. 2d

1332; see Docket Sheet, Marck v. Verizon Commc ns, Inc., No. 3:06-cv-5063 (N.D. Cal. Aug. 22, 

2006).

2769. Four cases were transferred from the Southern District of New York:

1. Amended Complaint, Mayer v. Verizon Commc ns Inc., No. 1:06-cv-3650 (S.D.N.Y. June 23, 2006); Complaint, id. (May 12, 2006).

2. Complaint, Electron Tubes Inc. v. Verizon Commc ns, No. 1:06-cv-4048 (S.D.N.Y. May 26, 2006).

3. Complaint, Basinski v. Verizon Commc ns Inc., No. 1:06-cv-4169 (S.D.N.Y. June 1, 2006).

4. Complaint, Payne v. Verizon Commc ns, Inc., No. 1:06-cv-4193 (S.D.N.Y. June 2, 2006).

The first case was part of the original multidistrict consolidation. In re NSA, 444 F. Supp. 2d

1332; see Docket Sheet, Mayer v. Verizon Commc ns, Inc., No. 3:07-cv-2029 (N.D. Cal. Apr. 10, 2007). The other three cases were transferred to Judge Walker as tag-along cases in the multidistrict consolidation. Conditional Transfer Order 1, supra note 2664; see Docket Sheet, Payne v. Verizon Commc ns, Inc., No. 3:06-cv-6435 (N.D. Cal. Oct. 16, 2006); Docket Sheet, Basinski v. Verizon Commc ns Inc., No. 3:06-cv-6434 (N.D. Cal. Oct. 16, 2006); Docket Sheet, Electron 

Tubes Inc. v. Verizon Commc ns, No. 3:06-cv-6433 (N.D. Cal. Oct. 16, 2006).

One of these actions subsequently was dismissed. Notice of Voluntary Dismissal, In re NSA 

Telecomm. Records Litig., No. 3:06-md-1791 (N.D. Cal. Feb. 16, 2007) (dismissing Electron 

Tubes Inc., No. 1:06-cv-4048 (S.D.N.Y. May 26, 2006), transferred as Electron Tubes Inc., No. 3:06-cv-6433 (N.D. Cal. Oct. 16, 2006)).

2770. Amended Complaint, Hines v. Verizon Northwest, Inc., No. 3:06-cv-694 (D. Or. June 2, 2006); Complaint, id. (May 12, 2006). This case was part of the original multidistrict consolidation. In re NSA, 444 F. Supp. 2d 1332; see Docket Sheet, Hines v. Verizon Northwest, Inc., No. 3:06-cv-5341 (N.D. Cal. Aug. 30, 2006).

2771. Complaint, Solomon v. Verizon Commc ns, Inc., No. 2:06-cv-2193 (E.D. Pa. May 24, 2006). This case was transferred to Judge Walker as a tag-along case in the multidistrict consolidation. Conditional Transfer Order 1, supra note 2664; see Docket Sheet, Solomon v. Verizon

Commc ns, Inc., No. 3:06-cv-6388 (N.D. Cal. Oct. 12, 2006).
316 National Security Case Management Studies (11/14/2011)

the District of Rhode Island (three cases);2772

the Southern District of Texas (one case);2773

the Western District of Texas (one case);2774 and

the Western District of Washington (one case).2775

Two of these actions subsequently were dismissed voluntarily.2776

On January 16, 2007, plaintiffs filed consolidated master complaints against

various sets of defendants.2777

 2772. Three cases were transferred from the District of Rhode Island:

1. Complaint, Bissitt v. Verizon Commc ns, Inc., No. 1:06-cv-220 (D.R.I. May 15, 2006).

2. Complaint, Mahoney v. AT&T Commc ns, Inc., No. 1:06-cv-223 (D.R.I. May 15, 2006).

3. Complaint, Mahoney v. Verizon Commc ns, Inc., No. 1:06-cv-224 (D.R.I. May 15, 2006).

These cases were part of the original multidistrict consolidation. In re NSA, 444 F. Supp. 2d

1332; see Docket Sheet, Bissitt v. Verizon Commc ns, Inc., No. 3:06-cv-5066 (N.D. Cal. Aug. 22, 2006) (transfer of D.R.I. No. 1:06-cv-220); Docket Sheet, Mahoney v. AT&T Commc ns, Inc., No. 3:06-cv-5065 (N.D. Cal. Aug. 22, 2006) (transfer of D.R.I. No. 1:06-cv-223); Docket Sheet, Mahoney v. Verizon Commc ns, Inc., No. 3:06-cv-5064 (N.D. Cal. Aug. 22, 2006) (transfer of

D.R.I. No. 1:06-cv-224).

2773. Amended Complaint, Trevino v. AT&T Corp., No. 2:06-cv-209 (S.D. Tex. May 19, 2006); Complaint, id. (May 17, 2006). This case was part of the original multidistrict consolidation. In re NSA, 444 F. Supp. 2d 1332; see Docket Sheet, Trevino v. AT&T Corp., No. 3:06-cv- 5268 (N.D. Cal. Aug. 28, 2006).

The plaintiffs voluntarily dismissed the action on November 26, 2008. Order, Trevino, No. 3:06-cv-5268 (N.D. Cal. Nov. 26, 2008).

2774. Third Amended Complaint, Harrington v. AT&T, Inc., No. 1:06-cv-374 (W.D. Tex. Aug. 14, 2006); Second Amended Complaint, id. (June 12, 2006); First Amended Complaint, id.

(June 5, 2006); Complaint, id. (May 18, 2006). This case was part of the original multidistrict consolidation. In re NSA, 444 F. Supp. 2d 1332; see Docket Sheet, Harrington v. AT&T, Inc., No. 3:06-cv-5452 (N.D. Cal. Sept. 6, 2006).

2775. Complaint, Derosier v. Cingular Wireless LLC, No. 2:06-cv-917 (W.D. Wash. June 28, 2006). This case was transferred to Judge Walker as a tag-along case in the multidistrict consolidation. Conditional Transfer Order 1, supra note 2664; see Docket Sheet, Derosier v. Cingular Wireless LLC, No. 3:06-cv-6253 (N.D. Cal. Oct. 4, 2006).

2776. Order, Trevino, No. 3:06-cv-5268 (N.D. Cal. Nov. 26, 2008); Voluntary Dismissal Order, Electron Tubes Inc. v. Verizon Commc ns, No. 3:06-cv-6433 (N.D. Cal. Feb. 22, 2007) (dismissing Electron Tubes Inc. v. Verizon Commc ns, No. 1:06-cv-4048 (S.D.N.Y. May 26, 2006)).

2777. See In re NSA Telecomm. Records Litig., 633 F. Supp. 2d 949, 956 (N.D. Cal. 2009). Plaintiffs filed consolidated master complaints against 

1. defendants affiliated with Cingular, Master Consolidated Cingular Complaint, In re

NSA Telecomm. Records Litig., No. 3:06-md-1791 (N.D. Cal. Jan. 16, 2007);

2. defendants affiliated with Comcast, Master Comcast Consolidated Complaint, id. (Jan. 

16, 2007);

3. defendants affiliated with Sprint, Master Consolidated Spring Complaint, id. (Jan. 16, 2007);

4. defendants affiliated with Verizon, Master Consolidated Verizon Complaint, id. (Jan. 

16, 2007); and

5. defendants affiliated with BellSouth, Master Consolidated BellSouth Complaint, id.

(Jan. 16, 2007).
National Security Case Management Studies (11/14/2011) 317

A few actions against telephone companies were dismissed early. The district

court for the District of Nebraska dismissed a pro se case filed against AT&T, Verizon, and BellSouth in state court and removed to federal court.2778 Plaintiffs voluntarily dismissed actions filed in the District of the District of Columbia (three

cases),2779 the Eastern District of Missouri (one case),2780and the Middle District

of Tennessee (one case).2781

In 2008, an additional action was filed in the Southern District of New

York2782 and transferred to Judge Walker.2783

On June 3, 2009, Judge Walker dismissed all actions against telephone companies in light of immunity granted by Congress for these cases.2784 Appeals were 

heard on August 31, 2011.2785

 2778. Opinion, Tyler v. AT&T, No. 8:06-cv-523 (D. Neb. Aug. 30, 2006) (finding that the

complaint stated no facts and claimed no relief), sum. af d, Judgment, Tyler v. AT&T, No. 06- 4174 (8th Cir. Feb. 28, 2007); see Amended Complaint, Tyler, No. 8:06-cv-523 (D. Neb. Aug. 4, 2006); Notice of Removal, id. (July 31, 2006).

Upon learning of the dismissal, the JPML vacated its conditional transfer order. Order Vacating Conditional Transfer Order, In re NSA Telecomm. Records Litig., No. 1791 (J.P.M.L. Sept. 7, 

2006).

2779. Notice of Voluntary Dismissal, Phillips v. BellSouth Corp., No. 1:06-cv-918 (D.D.C. May 25, 2006); Notice of Voluntary Dismissal, Ludman v. AT&T Inc., No. 1:06-cv-917 (D.D.C. May 25, 2006); Notice of Voluntary Dismissal, Driscoll v. Verizon Commc ns, Inc., No. 1:06-cv- 916 (D.D.C. May 25, 2006); see Complaint, Phillips, No. 1:06-cv-918 (D.D.C. May 15, 2006);

Complaint, Ludman, No. 1:06-cv-917 (D.D.C. May 15, 2006); Complaint, Driscoll, No. 1:06-cv- 916 (D.D.C. May 15, 2006).

These cases were included in Verizon s original multidistrict consolidation motion. Verizon

Transfer Brief at 4 7, In re NSA, No. 1791 (J.P.M.L. May 30, 2006).

2780. Notice of Dismissal, Mink v. AT&T Corp., No. 4:06-cv-831 (E.D. Mo. June 22, 2006);

Docket Sheet, id. (May 26, 2006) (noting July 5, 2006, dismissal); see Amended Notice of Removal, id. (June 12, 2006); Notice of Removal, id. (May 26, 2006). The plaintiff refiled in state

court, the action was removed again, it was conditionally transferred as part of the multidistrict

consolidation, and the plaintiff challenged the transfer. See supra note 2765. 2781. Order, Potter v. BellSouth Corp., No. 3:06-cv-469 (M.D. Tenn. July 17, 2006); Notice of 

Dismissal, id. (July 13, 2006); see Complaint, id. (May 15, 2006). This case was listed in the multidistrict consolidation order, In re NSA Telecomm. Records Litig., 444 F. Supp. 2d 1332

(J.P.M.L. 2006), but the transfer was vacated because the case was dismissed before transfer, Order Vacating Transfer, In re NSA, No. 1791 (J.P.M.L. Aug. 17, 2006).

2782. Complaint, McMurray v. Verizon Commc ns Inc., No. 1:08-cv-6264 (S.D.N.Y. July 10, 2008).

2783. Transfer Order, In re NSA, No. 1791 (J.P.M.L. issued Dec. 19, 2008); see Docket Sheet, McMurray v. Verizon Commc ns Inc., No. 3:09-cv-131 (N.D. Cal. Jan. 12, 2009).

2784. In re NSA Telecomm. Records Litig., 633 F. Supp. 2d 949 (N.D. Cal. 2009); see id. at 

956 ( On July 7, 2008, after months of election-year legislative exertion that received considerable 

press coverage, Congress enacted [the Foreign Intelligence Surveillance Act Amendments Act of

2008, Pub. L. 110-261, 122 Stat. 2436]. ); see also Jewel Dismissal Order, supra note 2659, at 7.

2785. E.g., Docket Sheet, Hepting v. AT&T Corp., No. 09-16676 (9th Cir. Aug. 7, 2009) (listing 33 consolidated appeals).
318 National Security Case Management Studies (11/14/2011)

Suits by the Government Against States

While moving to dismiss other lawsuits, the government filed five of its own.2786

The government sued to block state investigations of telephone companies assistance with the government s surveillance in New Jersey,2787 Missouri,2788

Maine,2789 Connecticut,2790and Vermont.2791 Also filed in Missouri, and transferred to Judge Walker, was an action by the state against the telephone companies.2792

Judge John A. Woodcock, Jr., of the District of Maine, granted the government a preliminary injunction against the state of Maine s investigation.2793

The JPML consolidated all of these actions before Judge Walker,2794 who denied the government s motions for summary judgment on supremacy and foreign

 2786. In re NSA Telecomm. Records Litig., 630 F. Supp. 2d 1092, 1093 (N.D. Cal. 2009); Order at 1, In re NSA Telecomm. Records Litig., No. 3:06-md-1791 (N.D. Cal. July 24, 2007) (denying summary judgment in state cases) [hereinafter State Cases Summary Judgment Denial Order], available at 2007 WL 2127345; see Elbert Aull, U.S. Sues State, Verizon to Block NSA Revelations, Portland Press Herald, Aug. 22, 2006, at A1 (reporting that Maine was the third state sued, 

following suits against Missouri and New Jersey); Judy Harrison, Wiretaps Lawsuit Moved to California, Bangor Daily News, Feb. 17, 2007, at 1 (reporting similar suits filed in Maine, Missouri, New Jersey, Connecticut, and Vermont).

2787. Complaint, United States v. Farber, No. 3:06-cv-2683 (D.N.J. June 14, 2006); see id. at 

2 ( Compliance with the subpoenas issued by those officers would first place the carriers in a position of having to confirm or deny the existence of information that cannot be confirmed or denied without causing exceptionally grave harm to national security. ); see also Rick Hepp, ACLU 

Petitions for Probe of Phone-Record Access, Newark Star Ledger, June 16, 2006, at 43. 

The name for the New Jersey case changed twice, because New Jersey s attorney general resigned, was initially replaced by an acting attorney general, and then was replaced by a permanent

attorney general. Order Amending Caption, United States v. Rabner, No. 3:06-cv-2683 (D.N.J. Oct. 17, 2006) (substituting the new attorney general Stuart Rabner as the lead defendant); Letter, United States v. Milgram, No. 3:06-cv-2683 (D.N.J. Oct. 12, 2006) (identifying Anne Milgram as

the acting attorney general); see Richard G. Jones, In New Jersey, New Nominee to Top Law Job, N.Y. Times, Aug. 25, 2006, at A20 (reporting on Governor Corzine s nomination of Stuart J. Rabner to replace Farber); Laura Mansnerus & David W. Chen, New Jersey Attorney General

Quits After Investigation Finds Ethics Breach, N.Y. Times, Aug. 16, 2006, at A18.

2788. Complaint, United States v. Gaw, No. 4:06-cv-1132 (E.D. Mo. July 25, 2006); see Donna Walter, Missouri Lawsuit Seeks to Stop Phone Inquiry, Kansas City Daily Record, July 31, 2006.

2789. United States v. Adams, 473 F. Supp. 2d 108, 112 (D. Me. 2007); Complaint, United 

States v. Adams, No. 1:06-cv-97 (D. Me. Aug. 21, 2006); see Aull, supra note 2786; Gregory D. Kesich, U.S. Shows New Toughness with State, Portland Press Herald, Aug. 23, 2006, at A1.

2790. Complaint, United States v. Palermino, No. 3:06-cv-1405 (D. Conn., Sept. 6, 2006).

2791. Complaint, United States v. Volz, No. 2:06-cv-188 (D. Vt. Oct. 2, 2006).

2792. Notice of Removal, Gaw v. AT&T Commc ns of the Southwest Inc., No. 2:06-cv-4177 

(W.D. Mo. Aug. 10, 2006); see In re NSA Telecomm. Records Litig., 630 F. Supp. 2d 1092, 1093 94 (N.D. Cal. 2009); State Cases Summary Judgment Denial Order, supra note 2786, at 3.

2793. Adams, 473 F. Supp. 2d 108.

2794. In re NSA Telecomm. Records Litig., 474 F. Supp. 2d 1355 (J.P.M.L. 2007); see State 

Cases Summary Judgment Denial Order, supra note 2786, at 2; Docket Sheet, United States v. Volz, No. 3:07-cv-1396 (N.D. Cal. Mar. 9, 2007) (action transferred from D. Vt.); Docket Sheet, United States v. Palermino, No. 3:07-cv-1326 (N.D. Cal. Mar. 7, 2007) (action transferred from D. 
National Security Case Management Studies (11/14/2011) 319

affairs grounds.2795 On the government s state-secrets motion, Judge Walker ruled

that some of the information sought [by the states in their] investigations may

implicate the state secrets privilege, but some questions posed in these investigations fall outside the privilege s scope. 2796 Judge Walker decided to await further guidance from the court of appeals in pending appeals before deciding the

matter more precisely.2797

On June 3, 2009, Judge Walker granted summary judgment to the federal

government in all of these actions in light of immunity granted by Congress to the 

telephone companies.2798 The states did not appeal.

Suits to Discover Secret Documents

On the day the New York Times first reported on the warrantless wiretap program, the Electronic Privacy Information Center submitted requests under the Freedom

of Information Act to four government agencies to obtain documents concerning

the program.2799 The ACLU and the National Security Archive Fund submitted

similar requests four days later.2800 Disappointed by what was produced, the organizations sought relief in the U.S. District Court for the District of Columbia, 

which assigned the cases to Judge Henry H. Kennedy, Jr.2801 On September 5, 2007, Judge Kennedy ruled that some of the withheld documents were properly 

 Conn.); Docket Sheet, United States v. Rabner, No. 3:07-cv-1324 (N.D. Cal. Mar. 7, 2007) (action 

transferred from D.N.J.); Docket Sheet, United States v. Adams, No. 3:07-cv-1323 (N.D. Cal. Mar. 7, 2007) (action transferred from D. Me.); Docket Sheet, United States v. Gaw, No. 3:07-cv- 1242 (N.D. Cal. Mar. 2, 2007) (action transferred from E.D. Mo.); Docket Sheet, Clayton v. AT&T Commc ns of the Southwest Inc., No. 3:07-cv-1187 (N.D. Cal. Feb. 28, 2007) (action

transferred from W.D. Mo.); see also Harrison, supra note 2786. The name for the government s action against Missouri changed upon the expiration of Steve

Gaw s term on the Missouri Public Service Commission; Commissioner Robert M. Clayton III

remained a defendant. Order, United States v. Clayton, No. 3:07-cv-1242 (N.D. Cal. Dec. 12, 2007).

2795. State Cases Summary Judgment Denial Order, supra note 2786, at 15 34.

2796. Id. at 35.

2797. Id.

2798. In re NSA Telecomm. Records Litig., 630 F. Supp. 2d 1092 (N.D. Cal. 2009).

2799. Elec. Privacy Info. Ctr. v. Dep t of Justice, 511 F. Supp. 2d 56, 62 63 (D.D.C. 2007);

Elec. Privacy Info. Ctr. v. Dep t of Justice, 416 F. Supp. 2d 30, 33 34 (D.D.C. 2006); Complaint

at 3, Elec. Privacy Info. Ctr. v. Dep t of Justice, No. 1:06-cv-96 (D.D.C. Jan. 19, 2006) [hereinafter Elec. Privacy Info Ctr. Complaint].

2800. Elec. Privacy Info. Ctr., 511 F. Supp. 2d at 63; Complaint at 6, ACLU v. Dep t of Justice, No. 1:06-cv-214 (D.D.C. Feb. 7, 2006) [hereinafter D.D.C. ACLU Complaint]; see Romero & 

Temple-Raston, supra note 275, at 71.

2801. Elec. Privacy Info. Ctr., 416 F. Supp. 2d at 35; D.D.C. ACLU Complaint, supra note 

2800; Docket Sheet, ACLU, No. 1:06-cv-214 (D.D.C. Feb. 7, 2006); Elec. Privacy Info Ctr. Complaint, supra note 2799; Docket Sheet, Elec. Privacy Info. Ctr., No. 1:06-cv-96 (D.D.C. Jan. 19, 2006); see Dan Eggen, A Judge Finds Administration s Secrecy Baf ling, Wash. Post, Sept. 7, 2007, at A19.

Tim Reagan interviewed Judge Kennedy for this report in the judge s chambers on November

12, 2008.
320 National Security Case Management Studies (11/14/2011)

withheld and some needed further justification to withhold.2802 On October 31, 2008, Judge Kennedy ruled additional documents properly withheld, but he also

ruled that he needed to review in camera 10 documents containing opinions by the 

Justice Department s Office of Legal Counsel (OLC) to determine whether they, or parts of them, should be disclosed.2803 Seventeen days later, the government

lodged the documents for Judge Kennedy s review.2804

On July 10, 2009, inspectors general for the Departments of Defense and Justice, the CIA, the NSA, and the Director of National Intelligence released a report

on the President s Surveillance Program. 2805 In response to arguments by plaintiffs concerning public disclosures in the report,2806 the government agreed to review again four of the withheld OLC opinions.2807 The government determined

that two should remain withheld and, on March 21, 2011, filed redacted versions

of the other two.2808 The filing included a substantially redacted version of a 108- page May 6, 2004, opinion by assistant attorney general Jack Goldsmith concluding that the warrantless wiretap program was legal.2809 Among the redactions was

the program s name.2810 The filing also included a redacted November 2, 2001, opinion of at least 21 pages by Deputy Assistant Attorney General John Yoo from 

which the only portions not redacted were a handful of statements referring to the 

inapplicability of FISA to the program.2811 The complete ten opinions remain before Judge Kennedy for review.2812

The Electronic Frontier Foundation, who filed the first action against telephone companies, sued the Justice Department under FOIA for release of the secret FISC orders that the government claimed obviated the need for surveillance

without warrants.2813 The U.S. District Court for the District of the District of Columbia assigned the case to Judge Thomas F. Hogan,2814 who on August 14, 2007, 

 2802. Elec. Privacy Info. Ctr., 511 F. Supp. 2d 56.

2803. Elec. Privacy Info. Ctr. v. Dep t of Justice, 584 F. Supp. 2d. 65 (D.D.C. 2008); see 

Judge Seeks Wiretapping Documents, N.Y. Times, Nov. 2, 2008, at 18.

2804. Notice of Lodging, ACLU, No. 1:06-cv-214 (D.D.C. Nov. 17, 2008).

2805. PSP Report, supra note 2659; see Carrie Johnson & Ellen Nakashima, Inappropriate

Secrecy Hurt Surveillance Ef ort, Report Says, Wash. Post, July 11, 2009, at A3; Eric Lichtblau &

James Risen, U.S. Wiretapping of Limited Value, Of icials Report, N.Y. Times, July 11, 2009, at

A1.

2806. Plaintiffs Supplemental Memorandum, Elec. Privacy Info. Ctr., No. 1:06-cv-96 (D.D.C. 

Sept. 15, 2009).

2807. Stipulation, id. (Jan. 18, 2011).

2808. Notice of Filing, id. (Mar. 21, 2011).

2809. Id.

2810. Id.

2811. Id.

2812. See Government Response, id. (Apr. 15, 2011).

2813. Complaint, Elec. Frontier Found. v. Dep t of Justice, No. 1:07-cv-403 (D.D.C. Feb. 27, 2007).

2814. Docket Sheet, id.

Tim Reagan interviewed Judge Hogan for this report in the judge s chambers on January 12, 2010.
National Security Case Management Studies (11/14/2011) 321

granted the government s motion for summary judgment, finding that the orders

meet FOIA s national defense, statutory, and law enforcement exemptions.2815

On August 9, 2007, the ACLU filed a motion directly with the FISC that its

orders on warrantles wiretapping be made public.2816 On August 16, the court s

Presiding Judge Colleen Kollar-Kotelly issued an order that the government respond to the motion.2817 Judge John D. Bates issued a public opinion on December 11 denying the motion.2818 This was the third public opinion ever issued by

the court, and it resolved the court s first proceeding in its history to which the

government was not the only party.2819 Judge Bates rejected the ACLU s suggestion that the court determine what need not be withheld to protect properly classified information.

[T]he proper functioning of the FISA process would be adversely affected if submitting

sensitive information to the FISC could subject the Executive Branch s classification to a

heightened form of judicial review. The greater risk of declassification and disclosure

over Executive Branch objections would chill the government s interactions with the

Court. That chilling effect could damage national security interests, if, for example, the

government opted to forgo surveillance or search of legitimate targets in order to retain

control of sensitive information that a FISA application would contain. Moreover, government officials might choose to conduct a search or surveillance without FISC approval 

where the need for such approval is unclear; creating such an incentive for government

officials to avoid judicial review is not preferable.2820

 2815. Opinion at 14 18, id. (Aug. 14, 2007) [hereinafter D.D.C. Elec. Frontier Found. Summary Judgment Opinion]; see Opinion, id. (Jan. 29, 2008) (denying motion for reconsideration

based on new revelations in the press).

[FOIA] does not apply to matters that are

(1) (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly 

classified pursuant to such Executive order;

. . . . (3) specifically exempted from disclosure by statute (other than section 552b of this

title), provided that such statute (A) requires that the matters be withheld from the public

in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;

. . . . (7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could rea- sonably be expected to interfere with enforcement proceedings . . . . 5 U.S.C. § 552(b).

2816. In re Motion for Release of Ct. Rs., 526 F. Supp. 2d 484, 485 (FISA Ct. 2007); see Dan 

Eggen, Secret Court Asks for White House View on Inquiry, Wash. Post, Aug. 18, 2007, at A3;

Eric Lichtblau, Court Weighs Making Public Rulings on U.S. Wiretapping, N.Y. Times, Aug. 18, 2007, at A10.

2817. Scheduling Order, In re Motion for Release of Court Records, No. Misc. 07-01 (FISA

Ct. Aug. 16, 2007); see Eggen, supra note 2816; Lichtblau, supra note 2816. 2818. In re Ct. Rs., 526 F. Supp. 2d 484; see James Risen, Surveillance Court Declines to Release Secret Opinions, N.Y. Times, Dec. 12, 2007, at A27; Elizabeth Williamson, Secret U.S. Intelligence Court Intends to Keep Wiretap Rulings Under Wraps, Wash. Post, Dec. 12, 2007, at

A27.

2819. In re Ct. Rs., 526 F. Supp. 2d 484, 488; see Williamson, supra note 2818. 2820. In re Ct. Rs., 526 F. Supp. 2d 484, 496.
322 National Security Case Management Studies (11/14/2011)

Challenge: Classified Evidence

The Portland case against the government concerned an evidentiary document so

secret that it could be seen only by judges and had to be stored in a sensitive compartmented information facility (SCIF).2821 Government attorneys would not even

disclose whether they were cleared to see it.

Judge King, District of Oregon

The plaintiffs attempted to file under seal a classified document inadvertently disclosed to them in an asset-freezing proceeding.2822 They delivered to Judge King s

chambers a copy of the document in a sealed envelope for the Court s consideration in camera. 2823 More than two weeks later, the government insisted that the

document required more security than a sealed document filed with the court.2824

A government security officer reviewed the document in chambers and determined that it contained sensitive compartmented information (SCI), which requires more stringent storage and handling procedures than ordinary top secret

information,2825 so it needed to be stored in a SCIF.2826

The FBI had a SCIF in Portland, and the U.S. Attorney in Seattle had a

SCIF.2827 Because the FBI was a defendant in the action, the plaintiffs did not

want the document stored at the FBI s SCIF.2828 The government argued that 

creating a SCIF for the court would be infeasible because of the time and expense

required.2829 So it was agreed that the document would be sent to the Western

District of Washington s U.S. Attorney s SCIF in Seattle.2830

 2821. See Reagan, supra note 173, at 19 (describing SCIFs).

2822. Al-Haramain Islamic Found. v. Bush, 451 F. Supp. 2d 1215, 1218 19 (D. Or. 2006); In

Camera Inspection Motion, Al-Haramain Islamic Found. v. Bush, 3:06-cv-274 (D. Or. Feb. 28, 2006); see Green, supra note 2698; Green, U.S. Attacks Lawsuit, supra note 2696; Liptak, supra

note 2670. 2823. Interview with Hon. Garr M. King, Feb. 14, 2007; see In Camera Inspection Motion, supra note 2822; see also Keefe, supra note 2696, at 31.

2824. Interview with Hon. Garr M. King, Feb. 14, 2007; see Al-Haramain Islamic Found., 451 

F. Supp. 2d at 1219; Transcript, Al-Haramain Islamic Found., No. 3:06-cv-274 (D. Or. Mar. 21, 2006) [hereinafter Al-Haramain Islamic Found. Mar. 21, 2006, Transcript], also filed as Attach. 

C, Government Brief, id. (Apr. 14, 2006); see also Liptak, supra note 2667; Liptak, supra note 

2670. 2825. See Reagan, supra note 173, at 3.

2826. Al-Haramain Islamic Found. Mar. 21, 2006, Transcript, supra note 2824; Interview with 

Hon. Garr M. King, Feb. 14, 2007; see Al-Haramain Islamic Found., 451 F. Supp. 2d at 1219;

Government Lodging Reply at 4, Al-Haramain Islamic Found., No. 3:06-cv-274 (D. Or. May 12, 2006); see also Keefe, supra note 2696, at 31; Liptak, supra note 2670. 2827. Al-Haramain Islamic Found. Mar. 21, 2006, Transcript, supra note 2824; Interview with 

Hon. Garr M. King, Feb. 14, 2007.

2828. Al-Haramain Islamic Found. Mar. 21, 2006, Transcript, supra note 2824; Interview with 

Hon. Garr M. King, Feb. 14, 2007; see Tim Fought, Mystery Document Headed to Seattle, Seattle 

Times, Mar. 24, 2006, at B5.

2829. Al-Haramain Islamic Found. Mar. 21, 2006, Transcript, supra note 2824. 2830. Id.; see Fought, supra note 2828; Keefe, supra note 2696, at 31.
National Security Case Management Studies (11/14/2011) 323

Shortly thereafter, the government established a plan for storing the document

in Portland, to which the plaintiffs agreed.2831 The document would be stored in a

sealed envelope addressed to Judge King, inside a locked bag to which only Judge 

King and a security officer not the FBI would have a key, at the FBI s SCIF in

Portland.2832

The government moved for an order (1) preventing the plaintiffs from having

further access to the classified evidentiary document and (2) requiring the return

of any copies of the document in the plaintiffs possession.2833 In opposition to the 

government s motion, the plaintiffs filed under seal a declaration by one of their

attorneys describing the [classified evidentiary] document as he recalls seeing

it. 2834 The usual procedure for the court s accepting a sealed filing is for the

clerk s office to unseal the filing to make a copy for the judge and then file the

document under seal.2835 Despite the plaintiffs including a cover letter with the

sealed declaration asking that it be delivered to Judge King unopened, the clerk s

office followed its usual procedure.2836 Judge King advised the parties of the situation, and the government stated that because the declaration described a classified document, it also should be treated as classified and stored in the SCIF.2837

After the judge read the document, security officers picked it up and deposited it

in the judge s locked bag in the SCIF, using the judge s key to do so.2838

The government said that it might be necessary to purge the plaintiffs attorneys computers of data associated with their declaration of what they remember

about the classified document.2839

Although he saw the classified evidentiary document,2840 Judge King was

careful not to rely on its contents in his ruling against dismissal.2841 Judge King

granted the government s motion to deny the plaintiffs access to it, but he said

that the plaintiffs could file in camera affidavits attesting to the contents of the 

document from their memories, and that the government should consider provid-

 2831. Al-Haramain Islamic Found., 451 F. Supp. 2d at 1219; Interview with Hon. Garr M. King, Feb. 14, 2007.

2832. Transcript at 32 33, Al-Haramain Islamic Found. v. Bush, No. 3:06-cv-274 (D. Or. Apr. 25, 2006) [hereinafter Al-Haramain Islamic Found. Apr. 25, 2006, Transcript], also filed as Attach. 1, Government Lodging Reply, supra note 2826; see Liptak, supra note 2670. 2833. Al-Haramain Islamic Found., 451 F. Supp. 2d at 1217, 1229 (granting the government s

motion); Government Motion, Al-Haramain Islamic Found., No. 3:06-cv-274 (D. Or. May 26, 2006).

2834. Plaintiffs Response at 15, Al-Haramain Islamic Found., No. 3:06-cv-274 (D. Or. June

16, 2006).

2835. Interview with Hon. Garr M. King, Feb. 14, 2007.

2836. Id.

2837. Id.

2838. Id.

2839. Id.; see Liptak, supra note 2670. 2840. Al-Haramain Islamic Found. Mar. 21, 2006, Transcript, supra note 2824; see Green, 

Feds Stance, supra note 2696. 2841. Al-Haramain Islamic Found. v. Bush, 451 F. Supp. 2d 1215, 1223 n.3 (D. Or. 2006); but 

see id. at 1231 ( it is no longer secret to plaintiffs whether their communications were intercepted

as described in the Sealed Document ).
324 National Security Case Management Studies (11/14/2011)

ing the plaintiffs with access to a redacted version of the document under a protective order.2842

It was difficult for the plaintiffs in this case to determine whom on the government side they could serve with papers describing the classified evidentiary

document.2843 The government said that the identities of persons with clearance to 

see such documents was a state secret.2844 On one occasion, the judge asked a

government attorney before him if he had such clearance.2845 The attorney responded that he did not think he was permitted to answer that question.2846 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.2847

Judges Pregerson, Hawkins, and McKeown, Ninth Circuit

Members of the appellate panel also reviewed the classified document in camera, pursuant to procedures established by classified information security officers.2848

Having reviewed it in camera, we conclude that the Sealed Document is protected by 

the state secrets privilege, along with the information as to whether the government surveilled Al-Haramain. 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. The process of in camera review ineluctably places the court in a role that runs contrary to our fundamental principle of a transparent judicial system. It also places on the court a special burden to assure itself that an appropriate

balance is struck between protecting national security matters and preserving an open

court system. That said, we acknowledge the need to defer to the Executive on matters of

foreign policy and national security and surely cannot legitimately find ourselves second

guessing the Executive in this arena.2849

The court of appeals concluded that it was not appropriate to substitute as evidence the plaintiffs memories of the privileged document for the document itself;

 2842. Id. at 1229; see Liptak, supra note 2667; Liptak, supra note 2670; MacLean, supra note 

2696. Although the plaintiffs attorneys said that they had surrendered all copies of the document in

their possession, they could not state whether their clients still had any copies without violating

the attorney client privilege. Pursuant to the government s request, Judge King ordered the plaintiffs to deliver to his chambers all copies of the sealed document in their possession or under their

control. Al-Haramain Islamic Found., 451 F. Supp. 2d at 1229. It was reported that copies of the

document appear to have been sent abroad, and the government concedes that it has made no efforts to contact people overseas who it suspects have them. Liptak, supra note 2670. In addition, it appears that a reporter for The Washington Post reviewed the document. Id.; MacLean, supra

note 2696. 2843. Interview with Hon. Garr M. King, Feb. 14, 2007.

2844. Id.; see Liptak, supra note 2670. 2845. Interview with Hon. Garr M. King, Feb. 14, 2007.

2846. Id.

2847. Id.

2848. Al-Haramain Islamic Found. v. Bush, 507 F.3d 1190, 1194 n.2, 1203 (9th Cir. 2007).

2849. Id. at 1203.
National Security Case Management Studies (11/14/2011) 325

accurate memories would be as privileged as the document, and inaccurate memories would be worse.2850

Judge Walker, Central District of California

On January 5, 2009, Judge Walker ordered the government to present to him the

classified document and to grant, within eight weeks, security clearances to one or 

more of the plaintiffs attorneys.2851

The court s next steps will prioritize two interests: protecting classified evidence from

disclosure and enabling plaintiffs to prosecute their action. Unfortunately, the important

interests of the press and the public in this case cannot be given equal priority without

compromising the other interests.

To be more specific, the court will review the Sealed Document ex parte and in camera. The court will then issue an order regarding whether plaintiffs may proceed that is, whether the Sealed Document establishes that plaintiffs were subject to electronic surveillance not authorized by FISA. As the court understands its obligation with regard to

classified materials, only by placing and maintaining some or all of its future orders in

this case under seal may the court avoid indirectly disclosing some aspect of the Sealed

Document s contents. Unless counsel for plaintiffs are granted access to the court s rulings and, possibly, to at least some of defendants classified filings, however, the entire

remaining course of this litigation will be ex parte. This outcome would deprive plaintiffs 

of due process to an extent inconsistent with Congress s purpose in enacting FISA s sections 1806(f) and 1810. Accordingly, this order provides for members of plaintiffs litigation team to obtain the security clearances necessary to be able to litigate the case, including, but not limited to, reading and responding to the court s future orders.2852 The government cleared two attorneys within the court s deadline,2853 but the

government informed the court that whether the attorneys could see the classified

document was a matter for the Executive Branch to decide, and the Executive

Branch decided that the attorneys still could not see the document.2854

 2850. Id. at 1204.

2851. In re NSA Telecomm. Records Litig., 595 F. Supp. 2d 1077, 1089 90 (N.D. Cal. 2009);

see Johnson, supra note 2705. The court of appeals determined that this order was not appropriate for interlocutory appeal. Order, Al-Haramain Islamic Found., Inc. v. Obama, No. 09-15266 (9th Cir. Feb. 27, 2009).

2852. In re NSA, 595 F. Supp. 2d at 1089.

2853. Government s Response to Court Orders at 1, In re NSA Telecomm. Records Litig., No. 

3:06-md-1791 (N.D. Cal. Feb. 27, 2009); Plaintiffs Supplemental Case Management Statement at

1, id. (Feb. 18, 2009) (noting that the attorneys were informed of their clearance on Feb. 12, 2009); see Johnson, supra note 2705. 2854. In re NSA Telecomm. Records Litig., 700 F. Supp. 2d 1182, 1184, 1191 (N.D. Cal. 2010); Government s Response to Court Orders at 3 12, In re NSA, No. 3:06-md-1791 (N.D. Cal. Nov. 5, 2008); see Transcript, Al-Haramain Islamic Found. v. Bush, No. 3:07-cv-109 (N.D. Cal. Sept. 23, 2009, filed Feb. 22, 2010) ( Mr. Coppolino [for the government]: There is no more direct abrogation of the state secrets privilege than to provide the very information subject to the

privilege to counsel for the party that is seeking it. ); see also Al-Haramain Remedies Order, supra note 2676, at 39 40 ( defendants disobeyed direct court orders to negotiate an appropriate

protective order and to give plaintiffs counsel access to some of the information once they had

obtained security clearances ).
326 National Security Case Management Studies (11/14/2011)

On May 22, Judge Walker issued an order to show cause why he should not

rule in the plaintiffs favor as to liability.2855 On June 5, Judge Walker continued

his order to show cause and instead ordered briefing on summary judgment for

plaintiffs against the government.2856

Plaintiffs shall base their motion on non-classified evidence. If defendants rely upon the

Sealed Document or other classified evidence in response, the court will enter a protective order and produce such classified evidence to those of plaintiffs counsel who have

obtained top secret/sensitive compartmented information clearances . . . for their review. Otherwise, the court will consider the motion on non-classified evidence.2857

Judge Walker granted the plaintiffs summary judgment on March 31, 2010, because they could present publicly available evidence of surveillance, and the

government presented no evidence of surveillance warrants.2858

Judge Kennedy, District of the District of Columbia

To decide the validity of exemption claims for documents withheld by the government in response to FOIA requests for information on the warrantless wiretap

programs, Judge Kennedy reviewed itemized exemption claims in camera.2859

The exemption claims were classified and submitted ex parte.2860 Plaintiffs 

and their attorneys were not permitted to see them, and neither were Judge Kennedy s law clerks, although the clerks had secret security clearances.2861

Review of the exemption claims required many hours of Judge Kennedy s

time over several days without the assistance of staff.2862 Doors were closed, windows were covered, and the documents were under the judge s immediate control

at all times.2863 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.2864

In denying the government s initial motion for summary judgment, Judge

Kennedy expressed frustration that he was denied assistance of law clerks to review classified declarations supporting the motion:

Without expressing approval or disapproval of DOJ s use of these ex parte declarations

and without opining regarding whether the declaration redactions are legitimately classified (beyond a measure of skepticism as to some portions thereof) the court does ex-

 2855. Order to Show Cause re Liability, Al-Haramain Islamic Found., No. 3:07-cv-109 (N.D. Cal. May 22, 2009), available at 2009 WL 1468792; see Carrie Johnson, Showdown Looming on

State Secrets, Wash. Post, May 26, 2009, at A4.

2856. Briefing Order, Al-Haramain Islamic Found., No. 3:07-cv-109 (N.D. Cal. June 5, 2009); 

see Carrie Johnson, Judge Revisits Warrantless Eavesdropping, Wash. Post, June 4, 2009, at A4.

2857. Briefing Order, supra note 2856, at 2.

2858. In re NSA, 700 F. Supp. 2d 1182; Al-Haramain Remedies Order, supra note 2676

(awarding damages and attorney fees); see Savage & Risen, supra note 2706. 2859. Interview with Hon. Henry H. Kennedy, Jr., Nov. 12, 2008.

2860. Id.

2861. Id.

2862. Id.

2863. Id.

2864. Id.
National Security Case Management Studies (11/14/2011) 327

press substantial frustration with one aspect of the Executive s approach to this information: In part for purposes of this case, this judicial officer had his law clerk cleared

through an extensive, high-level background investigation so that the clerk would have

access to classified information, and specifically to the documents lodged in this case. Notwithstanding the clearance obtained, it has become apparent that the Executive will

not grant the clerk access to the classified declarations filed here, at least not in the absence of vociferous resistance from this judicial officer. This stance is baffling and has

been significantly disruptive to the court s review of this matter.2865

Judge Hogan, District of the District of Columbia

Although Judge Hogan would later join the FISC, he was not on that court when it 

issued orders that became the object of the Electronic Frontier Foundation s 2007

FOIA action.2866 To resolve the FOIA action, Judge Hogan examined the classified orders as well as classified affidavits supporting the government s objections

to the FOIA request.2867 When reviewing classified documents that are not kept in 

the court s file, Judge Hogan initials and dates each document he examines to facilitate assurances that the copies he examined can later be included in the appellate record, if necessary.2868

Challenge: Classified Arguments

The government regards the classified arguments in these cases as so secret that it

will not permit even attorneys or law clerks with security clearances to see

them.2869 President Bush personally decided who was cleared to see documents

related to the surveillance programs at issue in this litigation.2870 It was also reported that information about these programs was closely held even at the NSA:

Intense and unwavering secrecy has been the hallmark of these programs since their

inception, and even the number of people at NSA headquarters who know the details of

the operations has deliberately been kept to a minimum for security reasons. Each of

these programs operates from inside its own special red seal work center at Fort

Meade, meaning that those NSA employees cleared for these specific programs must pass 

 2865. Elec. Privacy Info. Ctr. v. Dep t of Justice, 511 F. Supp. 2d 56, 63 n.5 (D.D.C. 2007);

see Eggen, supra note 2801 (quoting text).

2866. Interview with Hon. Thomas F. Hogan, Jan. 12, 2010.

2867. Id.

2868. Id.

2869. See Liptak, supra note 2670. In addition to submitting classified arguments in the cases described here, the government offered to submit classified arguments to support its motion to enjoin Maine s investigation of Verizon s assistance in government surveillance if the court would not grant its motion on the basis of

unclassified arguments. TRO Brief at 13 n.3, United States v. Adams, No. 1:06-cv-97 (D. Me. Feb. 6, 2007). Because the court did grant the government s motion on the basis of unclassified

arguments, the government did not present classified arguments. See United States v. Adams, 473

F. Supp. 2d 108 (D. Me. 2007).

2870. PSP Report, supra note 2659, at 10 ( the President made the decision on all requests to

read in any non-operational persons, including [Department of Justice] officials ); see Lichtblau, 

supra note 2206.
328 National Security Case Management Studies (11/14/2011)

one at a time through a booth containing a retinal or iris scanner and other biometric sensors before they can get inside their operations center.2871

Judge King, District of Oregon

The Oregonian intervened and filed a motion to unseal the classified evidentiary

document in the Portland case against the government.2872 In response, the government lodged a classified declaration for ex parte in camera review.2873 The 

government subsequently lodged a second classified declaration for ex parte in 

camera review for reasons that must be explained in the superseding classified

declaration. 2874 Judge King stated at a telephonic hearing, I believe the Court

should avoid, if possible, receiving secret declarations from one side and basing

decisions on facts or arguments not disclosed to the other side. Now, I hasten to

say that I understand that in issues involving national security that may be necessary. 2875 Judge King ultimately decided it was not necessary to review these documents to rule on the Oregonian s motion,2876 which Judge King denied.2877

The government moved to dismiss the action on state-secrets grounds and

lodged several classified documents in support of the motion.2878 Judge King ordered that the classified lodgings be brought to the Portland SCIF, but stated that

he had not yet decided whether he was going to review them.2879 Ultimately he

decided to review the classified materials2880 and permit the case to proceed.2881

 2871. Aid, supra note 2659, at 288.

2872. Al-Haramain Islamic Found. v. Bush, 451 F. Supp. 2d 1215, 1219 (D. Or. 2006); D. Or. Al-Haramain Islamic Found. Docket Sheet, supra note 2698 (noting the filing of the motion on

Mar. 17, 2006); see Green, U.S. Attacks Lawsuit, supra note 2696. 2873. Al-Haramain Islamic Found., 451 F. Supp. 2d at 1232 n.8; D. Or. Al-Haramain Islamic

Found. Docket Sheet, supra note 2698 (noting the filing of a lodging notice on Apr. 14, 2006); see 

Green, U.S. Attacks Lawsuit, supra note 2696. The government argued, On the basis of the public record, therefore, the Oregonian s Motion

to Unseal Records (Mar. 17, 2006) [Docket Nos. 7 & 8] should be denied. Should the Court require additional detail regarding the sealed classified document in this case, however, such detail

can only be conveyed in a classified format, which must be reviewed ex parte and in camera, and

the Court s review of Defendants classified declaration is appropriate in these circumstances. Government Lodging Reply, supra note 2826, at 3.

2874. Government Lodging Reply, supra note 2826, at 2 n.1; see Notice of Lodging of Superseding Material, Al-Haramain Islamic Found. v. Bush, No. 3:06-cv-274 (D. Or. May 12, 2006).

2875. Al-Haramain Islamic Found. Apr. 25, 2006, Transcript, supra note 2832. 2876. Al-Haramain Islamic Found., 451 F. Supp. 2d at 1232 n. 8.

2877. Id. at 1218, 1232 33.

2878. Id. at 1219; Notice of Lodging, Al-Haramain Islamic Found., No. 3:06-cv-274 (D. Or. July 25, 2006) (noticing the lodging of an unredacted classified reply brief); Notice of Lodging, id.

(June 21, 2006) (noticing the lodging of (1) a classified brief, (2) a classified declaration by the

director of national intelligence, (3) a classified declaration by the director of the NSA, and (4) a

classified opposition to the plaintiffs pending motion to compel discovery). 2879. D. Or. Al-Haramain Islamic Found. Docket Sheet, supra note 2698. 2880. Al-Haramain Islamic Found., 451 F. Supp. 2d at 1219; D. Or. Al-Haramain Islamic

Found. Docket Sheet, supra note 2698. 2881. Al-Haramain Islamic Found., 451 F. Supp. 2d at 1217, 1228, 1233; see Liptak, supra

note 2667.
National Security Case Management Studies (11/14/2011) 329

The classified lodgings by the government were deposited in the same locked

bag in the FBI s SCIF as housed the plaintiffs classified evidentiary document.2882 The procedure for Judge King s review of materials in the locked bag

was to request that the bag be brought to his chambers, where Judge King would

review the materials in private.2883 When Judge King was finished reviewing the

materials, he would lock them in the bag with any notes he took, and chambers

staff would arrange for a security officer at the FBI to come back and retrive the

locked bag from Judge King.2884

Judge King observed that it is difficult to handle a case if there is material that 

a law clerk cannot see.2885 He has to be careful what he tells her, and she cannot

help him with the material she cannot see.2886 The judge s law clerks were going

to seek security clearances for this case, but they stopped looking into it when the

case was transferred to Judge Walker.2887

Judge Taylor, Eastern District of Michigan

In Detroit, on June 12, 2006, Judge Taylor heard arguments on the ACLU s motion for partial summary judgment against the government.2888 The government

filed a redacted brief in response to this motion, lodging a classified unredacted

brief with classified supporting declarations in a secure location in Washington, D.C.2889 The government filed a notice saying, The Court may contact the undersigned counsel to assist in securing delivery of these submissions for review at the 

Court s convenience. 2890 Judge Taylor elected to wait until after the hearing to

 2882. Interview with Hon. Garr M. King, Feb. 14, 2007.

2883. Id.

2884. Id.; Letter from Carr Sahler, law clerk to Hon. Garr M. King, Apr. 23, 2007.

2885. Interview with Hon. Garr M. King, Feb. 14, 2007.

2886. Id.

2887. Id.

2888. E.D. Mich. ACLU Docket Sheet, supra note 2684; see Plaintiffs Partial Summary

Judgment Motion, ACLU v. NSA, No. 2:06-cv-10204 (E.D. Mich. Mar. 9, 2006); see also David 

Ashenfelter, Battle Over Wiretaps to Begin Today, Detroit Free Press, June 12, 2006, at 1; Adam

Liptak, Arguments on Spy Program Are Heard by Federal Judge, N.Y. Times, June 13, 2006, at

A17; Niraj Warikoo, Wiretap Suit All About Power, Detroit Free Press, June 13, 2006, at 1.

2889. Notice of Lodging at 2, ACLU, No. 2:06-cv-10204 (E.D. Mich. May 26, 2006); Motion

to Dismiss at 4 n.3, id. (May 26, 2006); see Liptak, supra note 2888; Henry Weinstein, Domestic 

Spying Program Comes Under Legal Scrutiny, L.A. Times, June 12, 2006, at 5.

Strictly speaking, the defendants brief supported a separate motion and was not a response to

the plaintiffs motion, but the defendants said, Defendants respectfully submit that their Motion

to Dismiss and Motion to Stay both of which were based upon the United States assertion of the

state-secrets privilege were the appropriate response to Plaintiffs Motion. Defendants Motion

for Clarification at 2, ACLU, No. 2:06-cv-10204 (E.D. Mich. June 2, 2006); see Ashenfelter, supra 

note 2888. 2890. Notice of Lodging at 2, ACLU, No. 2:06-cv-10204 (E.D. Mich. May 26, 2006).
330 National Security Case Management Studies (11/14/2011)

review the classified documents,2891 but she considered them in issuing the injunction.2892

Judge Taylor reviewed classified documents three times.2893 Each time, she

reviewed the documents in her chambers without assistance of chambers staff and

under observation of the security officer who brought the documents to her.2894

The security officer told Judge Taylor that she could take notes, but the security

officer would have to take them back with her.2895 So the judge decided not to

take notes.2896

Judges Batchelder, Gilman, and Gibbons, Sixth Circuit

In the appeal of Judge Taylor s injunction against warrantless wiretaps, the court

of appeals granted the government permission to submit separate public and

sealed versions of briefs to protect classified information. 2897 On each of the days 

that the government filed redacted versions of its opening and reply briefs, it filed

a Notice of Lodging of In Camera, Ex Parte Brief. 2898

To help segregate the influence of classified information, the judges reviewed

public portions of the briefs and record before reviewing classified portions.2899

The judges worked out with the parties procedures for the judges review of classified information.2900 Judges Gilman and Gibbons have chambers in Memphis, 

Tennessee, and Judge Batchelder has chambers in Medina, Ohio. The three judges 

met with the parties in a district court conference room in Memphis on January 8, 2007, approximately three weeks before oral argument.2901 The meeting was transcribed, and the transcript was sealed.2902 One concern of the judges addressed at

the meeting was the integrity of the classified portion of the record over which the 

court did not have control.2903 One result of the meeting was the government s

 2891. Transcript, id. (June 12, 2006); see Liptak, supra note 2888 (reporting that Judge Taylor

did not review the classified documents before the hearing).

2892. ACLU v. NSA, 438 F. Supp. 2d 754, 764 (E.D. Mich. 2006) ( the court acknowledges

that it has reviewed all of the materials Defendants submitted ex parte and in camera ). 2893. Interview with Hon. Anna Diggs Taylor, Dec. 7, 2006; see E.D. Mich. ACLU Docket 

Sheet, supra note 2684 (noting the lodging of classified documents on May 26, June 30, and Sept. 1, 2006).

2894. Interview with Hon. Anna Diggs Taylor, Dec. 7, 2006.

2895. Id.

2896. Id.

2897. 6th Cir. ACLU Docket Sheets, supra note 2687 (noting order filed Oct. 11, 2006).

2898. Id. (noting the government s filing of briefs on Oct. 16 and Dec. 5, 2006). 2899. Interview with Hon. Julia Smith Gibbons, Oct. 29, 2007.

2900. ACLU v. NSA, 493 F.3d 644, 650 n.3 (6th Cir. 2007); 6th Cir. ACLU Docket Sheets, 

supra note 2687 (noting an Oct. 19, 2006, letter from the court to the government concerning the

filing of classified information with the court and a Nov. 1, 2006, motion by the government for

approval of proposed procedures regarding classified information).

2901. Interview with Hon. Alice M. Batchelder, Oct. 30, 2007; Interview with Hon. Julia

Smith Gibbons, Oct. 29, 2007; see Liptak, supra note 2677. 2902. Interview with Hon. Julia Smith Gibbons, Oct. 29 and Nov. 1, 2007.

2903. Interview with Hon. Alice M. Batchelder, Oct. 30, 2007; Interview with Hon. Julia

Smith Gibbons, Oct. 29, 2007; see Liptak, supra note 2677.
National Security Case Management Studies (11/14/2011) 331

agreement to file a list of classified documents presented to the judges,2904a list

which the government updated upon each additional lodging.2905

Approximately two weeks before oral argument, security officers delivered to

the judges chambers the government s unredacted opening and reply briefs.2906

On January 17, the government announced to Congress and the courts that the

President would not reauthorize the warrantless wiretap program at issue in this

case, but instead would abide by new secret orders issued by the FISC one week

earlier.2907 Five days before this announcement, and two days after the FISC orders were issued, the government again lodged classified materials for the court s

review.2908 Security officers brought these materials to the judges at the same time 

as the briefs.2909

The security officer who visited Judge Gilman s chambers presented the judge

with the classified materials in the judge s office and waited elsewhere in the

building for the judge s call saying he had completed his review.2910 The officer

asked Judge Gilman to close his window blinds and close the door to his office.2911 Judge Gilman literally has an open-door policy, so although a doorway

separates his office from the rest of the chambers, there is no physical door attached.2912 Judge Gilman reviewed the materials privately in his office.2913

The security officer who visited Judge Gibbons s chambers also asked her to

close her window blinds, but only on the windows facing other buildings, not the

windows facing the Mississippi River.2914 Judge Batchelder, who is the only tenant in her small-town building, was not asked to close her blinds.2915

No one on the judges staffs saw the classified materials.2916 Knowing that

they would not be able to keep them, none of the judges took notes.2917 The 

judges understood that if they needed extended access to the classified documents

 2904. Interview with Hon. Julia Smith Gibbons, Oct. 29, 2007.

2905. 6th Cir. ACLU Docket Sheets, supra note 2687 (noting the filing of classified-document 

lists on Jan. 12 and 25, Apr. 9, and June 11, 2007).

2906. Interview with Hon. Alice M. Batchelder, Oct. 30, 2007; Interview with Hon. Ronald

Lee Gilman, Oct. 29, 2007; Interview with Hon. Julia Smith Gibbons, Oct. 29, 2007; Interview

with Dep t of Justice Litig. Sec. Group Staff, Apr. 24, 2007. 2907. E.g., Notice of Attorney General s Letter to Congress, In re NSA Telecomm. Records

Litig., No. 3:06-md-1791 (N.D. Cal. Jan. 17, 2007); see Eggen, supra note 2677; Lichtblau &

Johnston, supra note 2677. 2908. 6th Cir. ACLU Docket Sheets, supra note 2687; see ACLU v. NSA, 493 F.3d 644, 650

n.3 (6th Cir. 2007).

2909. Interview with Hon. Julia Smith Gibbons, Oct. 29, 2007.

2910. Interview with Hon. Ronald Lee Gilman, Oct. 29, 2007.

2911. Id.

2912. Id.

2913. Id.

2914. Interview with Hon. Julia Smith Gibbons, Oct. 29, 2007.

2915. Interview with Hon. Alice M. Batchelder, Oct. 30, 2007.

2916. Id.; Interview with Hon. Ronald Lee Gilman, Oct. 29, 2007; Interview with Hon. Julia

Smith Gibbons, Oct. 29, 2007.

2917. Interview with Hon. Alice M. Batchelder, Oct. 30, 2007; Interview with Hon. Ronald

Lee Gilman, Oct. 29, 2007; Interview with Hon. Julia Smith Gibbons, Oct. 29, 2007.
332 National Security Case Management Studies (11/14/2011)

they could be stored in another agency s local SCIF, but the judges did not need

that.2918

Approximately one week after the government s announcement concerning

the FISA court, and one week before oral argument, the government filed a supplemental submission and lodged a classified submission.2919 The judges reviewed the classified submission in Cincinnati on the day of oral argument.2920

While a ruling from the court was pending, the government lodged classified

submissions on two additional occasions,2921and within days of these lodgings, classified information security officers delivered the classified submissions to the

judges chambers.2922

There were no oral ex parte communications with government attorneys in

this appeal.2923

Judge Batchelder s opinion states, At the behest of the government, I reviewed these privileged documents, but their contents being privileged are excluded from our consideration and I have not relied on

any of that information in this opinion. The state secrets privilege granted by the district

court has been maintained on appeal and this opinion is decided solely on the publicly

available information that was admitted by the district court and made a part of its

record.2924

The court denied the plaintiffs motion to have all or part of the secret submissions unsealed.2925

With one exception, this was the first time any of these judges had been called 

upon to review classified information.2926 The exception was an appeal decided in

2004 by a panel including Judges Batchelder and Gibbons affirming the dismissal

 2918. Interview with Hon. Alice M. Batchelder, Oct. 30, 2007; Interview with Hon. Julia

Smith Gibbons, Oct. 29, 2007.

2919. 6th Cir. ACLU Docket Sheets, supra note 2687 (noting the filing of a supplemental

submission and the lodging of a classified submission on Jan. 25, 2007); see Henry Weinstein, ACLU Wants Access to Sealed Wiretap Filings, L.A. Times, Jan. 27, 2007, at 14.

2920. Interview with Hon. Julia Smith Gibbons, Oct. 29, 2007.

2921. 6th Cir. ACLU Docket Sheets, supra note 2687 (noting the lodging of classified submissions on Apr. 9 and June 11, 2007).

2922. Interview with Hon. Alice M. Batchelder, Oct. 30, 2007 (noting that technically the

judges should not have reviewed this material, because it was outside the record); Interview with

Hon. Ronald Lee Gilman, Oct. 29, 2007; Interview with Hon. Julia Smith Gibbons, Oct. 29, 2007.

2923. Interview with Hon. Julia Smith Gibbons, Oct. 29, 2007.

2924. ACLU v. NSA, 493 F.3d 644, 650 n.3 (6th Cir. 2007); see id. at 692 ( All three members of the panel have reviewed the documents filed by the government under seal that arguably

are protected by the privilege. ). 2925. 6th Cir. ACLU Docket Sheets, supra note 2687 (noting denial of the motion on July 6, 

2007); see Weinstein, supra note 2919 (reporting the filing of the motion).

2926. Interview with Hon. Alice M. Batchelder, Oct. 30, 2007; Interview with Hon. Ronald

Lee Gilman, Oct. 29, 2007; Interview with Hon. Julia Smith Gibbons, Oct. 29, 2007. Judge Batchelder has been a circuit judge since 1991 and was a bankruptcy judge 1983 85 and a district

judge 1985 91; Judge Gilman has been a circuit judge since 1997; and Judge Gibbons has been a

circuit judge since 2002 and was a district judge 1983 2002. Federal Judicial Center Biographical

Directory of Federal Judges, http://www.fjc.gov/public/home.nsf/hisj.
National Security Case Management Studies (11/14/2011) 333

of a civil suit on state-secrets grounds.2927 The secrets in that case were handled

by ordinary sealing procedures.2928

Judge Lynch, Southern District of New York

In the Manhattan case against the government, as in the Detroit case, the government lodged, in a secure Washington, D.C., location for the court s ex parte in 

camera review, a classified brief and classified declarations supporting a motion 

to dismiss.2929 Judge Lynch believed that the documents were brought to New

York and stored in the U.S. Attorney s SCIF there,2930 but Judge Lynch did not

review the classified lodgings before the hearing on the motion.2931 He did not

want to risk inadvertent dislosure or the appearance of inadvertent disclosure

of classified information during the hearing.2932 The case was transferred to the

Northern District of California as part of multidistrict consolidation before Judge

Lynch ruled on the motion,2933 and he never read the classified lodgings.2934

Judge Kennelly, Northern District of Illinois

In a Chicago action against AT&T, Judge Kennelly granted the government s motion to dismiss on state-secrets grounds.2935 In advance of this ruling, a classified 

information security officer brought from Washington classified arguments supporting the motion.2936 Judge Kennelly reviewed the documents in private while

the security officer waited outside his office.2937 When the judge was finished reviewing the documents, the security officer took them and the judge s notes for

storage in the U.S. Attorney s SCIF in the same building.2938 When Judge Kennelly needed to review the documents again, a security officer for the U.S. Attorney s office delivered and retrieved them.2939

 2927. Tenenbaum v. Simonini, 372 F.3d 776 (6th Cir. 2004); Interview with Hon. Alice M. Batchelder, Oct. 30, 2007; Interview with Hon. Julia Smith Gibbons, Oct. 29, 2007.

2928. Interview with Hon. Julia Smith Gibbons, Oct. 29, 2007.

2929. Government Brief at 4 n.3, Center for Constitutional Rights v. Bush, No. 1:06-cv-313 

(S.D.N.Y. May 26, 2006); Notice of Lodging, id. (May 26, 2006).

2930. Interview with Hon. Gerard E. Lynch, May 16, 2007.

2931. Center for Constitutional Rights Sept. 5, 2006, Transcript, supra note 2693; Interview

with Hon. Gerard E. Lynch, May 16, 2007.

2932. Center for Constitutional Rights Sept. 5, 2006, Transcript, supra note 2693; Interview

with Hon. Gerard E. Lynch, May 16, 2007.

2933. Dec. 15, 2006, J.P.M.L. Transfer Order, supra note 2664; Interview with Hon. Gerard E. 

Lynch, May 16, 2007.

2934. Interview with Hon. Gerard E. Lynch, May 16, 2007.

2935. Terkel v. AT&T, 441 F. Supp. 2d 899, 901, 920 (N.D. Ill. 2006); see Liptak, supra note 

2666; McLure, supra note 2663; Robinson, supra note 2666. 2936. Interview with Hon. Matthew F. Kennelly, May 24, 2007; see Notice of Lodging, Terkel 

v. AT&T, No. 1:06-cv-2837 (N.D. Ill. June 30, 2006).

2937. Interview with Hon. Matthew F. Kennelly, May 24, 2007.

2938. Id. Judge Kennelly noted that it would be more appropriate for the court to have its own

SCIF. Id.

2939. Id.
334 National Security Case Management Studies (11/14/2011)

Judge Kennelly s opinion states that he did not rely on classified submissions

in reaching this decision.2940 His opinion, however, describes how he reviewed the 

submissions:

Only one copy of the materials was provided, and following our review, the materials were removed to a secure location outside the Court s control (we reviewed the materials again on later occasions under similar conditions). The court was not permitted to

discuss the materials with other members of our staff, and notes that we took were removed and kept in a secure location outside the court s control. We advised the parties

that we needed to ask the government s counsel questions about the material; this was

done in an in camera, ex parte session on July 13, 2006 that was tape recorded so that a

transcript could later be made by personnel with appropriate security clearance (we have

reviewed the transcript of the July 13 session and believe it to be accurate). The court

asked the government to provide further information about certain matters in the classified materials; this information was thereafter produced for in camera, ex parte inspection as well.2941

In order to avoid inadvertently disclosing information in the classified documents at the public hearing, Judge Kennelly carefully prepared all of his questions 

for counsel in advance.2942 On one occasion, the judge began to refer to how many 

additional pages the classified documents had compared with the public versions, and the government s attorney instructed the judge not to do so.2943

The night before the classified proceeding, the judge s chambers were swept

for surveillance devices.2944 When the judge arrived for work on the morning of

the hearing, he was greeted by an armed guard who demanded identification before the judge could enter his chambers.2945 During the classified proceeding, the

judge s window blinds were closed, and a government agent electronically monitored the room for surveillance.2946

Judge Walker, Northern District of California

Judge Walker found his experience reviewing classified ex parte arguments very

unpleasant.2947 Ex parte presentations deprive the judge of the perspective and focus that usually comes with an adversary proceeding.2948 Classified information is

often presented without sufficient context to understand why it is classified or

what injury to national security is at stake, so it can be hard to know what to make 

of it.2949

In the first San Francisco action against AT&T, the government intervened

and unsuccessfully argued that the state-secrets privilege required dismissal of the

 2940. Terkel, 441 F. Supp. 2d at 902, 910 11. 2941. Id. at 902 n.2.

2942. Interview with Hon. Matthew F. Kennelly, May 24, 2007.

2943. Id.

2944. Id.

2945. Id.

2946. Id.

2947. Interview with Hon. Vaughn R. Walker, Feb. 23, 2011.

2948. Id.

2949. Id.
National Security Case Management Studies (11/14/2011) 335

case.2950 The government sought to support its argument with classified documents.2951 An attorney for the government described the procedure for judicial

review of classified documents as follows:

The classified brief and the classified declarations on which it relies are available, they

are in the possession of a group called the Litigation Security Section of the Department

of Justice, which is a subgroup of something called the Security and Emergency Program

Staff. The brief, those materials, are in their possession. And when your Honor would

like to look at those materials, you just call them up and they fly them out to San Francisco, allow you to take a look at them. When you re done with them, they take the materials back. They re maintained in a secure facility, just like all other documents relating to 

these materials would be.2952

On June 6, 2006, Judge Walker agreed to review the government s secret papers, ordering the government to provide in camera and no later than June 9, 2006, the classified memorandum and classified declarations of John D. Negroponte and Keith B. Alexander for review by the [judge] and by any chambers personnel that he so authorizes. 2953

Judge Walker reviewed the government s classified briefing in his chambers.2954 A security officer brought the documents to his chambers in a sealed

pouch.2955 Judge Walker reviewed the documents in private while the security officer waited in the chambers reception area.2956 Judge Walker took some notes, which the security officer took back with the classified documents.2957

 2950. Hepting v. AT&T Corp., 439 F. Supp. 2d 974 (N.D. Cal. 2006); Motion to Dismiss, Hepting v. AT&T Corp., No. 3:06-cv-672 (N.D. Cal. May 13, 2006); First U.S. Statement of Interest, id. (Apr. 28, 2006); see Pete Carey, U.S.: Lawsuit a Risk to Secrecy, San Jose Mercury

News, May 14, 2006, at A1; John Markoff, U.S. Steps Into Wiretap Suit Against AT&T, N.Y. Times, Apr. 29, 2006, at A9; Joseph Menn & Josh Meyer, Justice Department Asks U.S. Judge to

Dismiss AT&T Suit, L.A. Times, May 14, 2006, at 4.

2951. Notice of Lodging, Hepting, No. 3:06-cv-672 (N.D. Cal. May 13, 2006); see Hepting, 439 F. Supp. 2d at 979; see also Carey, supra note 2950. 2952. Transcript, Hepting, No. 3:06-cv-672 (N.D. Cal. May 17, 2006), filed in part as Attach., 

Notice of Motion for Transfer and Coordination, Souder v. AT&T Corp., No. 3:06-cv-1058 (S.D. Cal. May 31, 2006).

2953. Order, Hepting, No. 3:06-cv-672 (N.D. Cal. June 6, 2006), available at 2006 WL

1581965; see Hepting, 439 F. Supp. 2d at 980; see also Bob Egelko, Judge to Hold Private Review 

of AT&T Case, S.F. Chron., June 8, 2006, at A4.

Article III federal judges . . . , by virtue of their Constitutional office, may receive access to

classified information in order to address questions before them. U.S. Response to Order to Show 

Cause, Hepting, No. 3:06-cv-672 (N.D. Cal. July 31, 2006).

2954. Interview with Hon. Vaughn R. Walker, Feb. 15, 2007.

The government also presented a classified reply brief with classified supporting declarations. Notice of Lodging, Hepting, No. 3:06-cv-672 (N.D. Cal. June 16, 2006).

2955. Interview with Hon. Vaughn R. Walker, Feb. 15, 2007; see Hepting, 439 F. Supp. 2d at

1011 (noting that the classified arguments were hand carried to San Francisco and stored in a secure facility there for a few days while the court conducted its review).

2956. Interview with Hon. Vaughn R. Walker, Feb. 15, 2007. According to Judge Walker, the

officer may have stepped out for coffee. Id.

2957. Id.
336 National Security Case Management Studies (11/14/2011)

On a subsequent occasion, the government presented classified briefing materials to Judge Walker by a different means.2958 In part because of time constraints, 

instead of bringing classified documents to Judge Walker, a classified information 

security officer arranged for an FBI agent to bring Judge Walker to an FBI SCIF

in the same building as the courthouse, where Judge Walker received a secure fax

containing the classified documents for his review and then shredded the fax.2959

On the eve of, and concerning, the Attorney General s announcement that the

government would seek warrants from the FISA court for surveillance of international communications with persons in the United States, the government again

presented classified briefing materials to Judge Walker.2960 Again a classified information security officer brought them to his chambers, where Judge Walker reviewed them in private.2961

On 13 additional occasions, the government lodged classified documents.2962

The government lodged for Judge Walker s review a classified declaration

that had been presented to the U.S. Court of Appeals for the Sixth Circuit in the

appeals concerning Judge Taylor s injunction against the warrantless wiretap program.2963

The next lodging supported a scheduling motion.2964 The unclassified memorandum supporting the motion noted that the recent appointment of a new Director of National Intelligence complicated assertion of the state-secrets privilege, because the new director would have to make an independent decision on whether 

or how to assert it.2965

The public record does not show the reason for the next lodging, and the

plaintiffs objected to the government s lodging classified materials without providing any public information about what they are lodging or why.2966 The gov-

 2958. Id.; see Notice of Lodging, Hepting, No. 3:06-cv-672 (N.D. Cal. July 31, 2006).

2959. Interview with Hon. Vaughn R. Walker, Feb. 15, 2007; Interview with Dep t of Justice

Litig. Sec. Group Staff, Apr. 24, 2007.

2960. Notice of Lodging, In re NSA Telecomm. Records Litig., No. 3:06-md-1791 (N.D. Cal. Jan. 13, 2007); Interview with Hon. Vaughn R. Walker, Feb. 15, 2007.

2961. Interview with Hon. Vaughn R. Walker, Feb. 15, 2007.

2962. Notices of Lodging, In re NSA, No. 3:06-md-1791 (N.D. Cal. Oct. 30, 2009); Notices of

Lodging, id. (N.D. Cal. Feb. 27, 2009); Notice of Lodging, id. (Nov. 5, 2008); Notice of Lodging, id. (Sept. 19, 2008); Notice of Lodging, id. (Mar. 14, 2008); Notice of Lodging, id. (Oct. 25, 2007); Notice of Lodging, id. (Aug. 3, 2007); Notices of Lodging, id. (June 8, 2007); Notices of

Lodging, id. (May 25, 2007); Notices of Lodging, id. (Apr. 21, 2007); Notice of Lodging, id. (Apr. 

9, 2007); Notice of Lodging, id. (Mar. 13, 2007); Notice of Lodging, id. (Feb. 22, 2007).

2963. Notice of Lodging, id. (Feb. 22, 2007).

2964. Notice of Lodging, id. (Mar. 13, 2007).

2965. Scheduling Motion, id. (Mar. 12, 2007); see Mark Mazzetti, In Shift, Director for Intelligence in State Dept. Post, N.Y. Times, Jan. 4, 2007, at A1 (reporting the President s appointment

of John D. Negroponte, then Director of National Intelligence, to be Deputy Secretary of State, and reporting J. Michael McConnell, a former Director of the National Security Agency, to be

Negroponte s replacement). 2966. Letter, In re NSA, No. 3:06-md-1791 (N.D. Cal. Apr. 13, 2007).
National Security Case Management Studies (11/14/2011) 337

ernment responded that nothing more may be said without compromising the

Government s compelling interest in protecting the Nation s security. 2967

Judge Walker noted in his published opinion denying the government s motion to dismiss that his traveling to Washington to review classified documents

might be a suitable future alternative.2968 The next set of lodgings was an unredacted brief and unredacted declarations of the Director of National Intelligence

and the Director of the NSA in support of a motion to dismiss actions against Verizon companies, including MCI, on state-secrets grounds.2969 Judge Walker arranged to review these in Washington the following week, when he was there for

a meeting of chief district judges.2970

Two lodgings supported motions to dismiss on state-secrets grounds the actions against the government filed in Brooklyn

2971

and Manhattan.2972 Another 

lodging was a classified reply brief supporting state-secrets motions to dismiss in

several other cases.2973

The government lodged a classified declaration in opposition to the plaintiffs

motion for an order requiring defendants to preserve evidence.2974 The government argued that the motion should be denied because the state-secrets privilege

prevented the defendants from confirming or denying that there was any evidence

to preserve.2975 The classified declaration specified how potentially discoverable

information, if any, is being preserved. 2976 Determining that the public briefing

showed that the plaintiffs were entitled to a preservation order, Judge Walker issued the order without stating whether or not he reviewed the government s classified brief and declaration.2977

Another lodging supported the government s motion to dismiss the action

against the government by the Islamic charity on the grounds of standing, sovereign immunity, and state secrets.2978

In September 2008, in open court, Judge Walker observed that classified lodgings had not yet been very helpful to him:

 2967. Government Response to Plaintiffs Letter, id. (Apr. 27, 2007).

2968. Hepting v. AT&T Corp., 439 F. Supp. 2d 974, 1011 (N.D. Cal. 2006).

2969. Notices of Lodging, In re NSA, No. 3:06-md-1791 (N.D. Cal. Apr. 21, 2007) (a separate

notice for each document); see Government Motion, id. (Apr. 20, 2007) (unredacted brief and declarations).

2970. Interview with Hon. Vaughn R. Walker, Sept. 29, 2008; Interview with Dep t of Justice

Litig. Sec. Group Staff, Apr. 24, 2007.

2971. Notices of Lodging, In re NSA, No. 3:06-md-1791 (N.D. Cal. May 25, 2007); see Government Motion, id. (May 25, 2007) (redacted brief and declarations).

2972. Notices of Lodging, id. (June 8, 2007); Manhattan Action Dismissal Order, supra note 

2682, at 5 6; see Government s Supplemental Motion, In re NSA, No. 3:06-md-1791 (N.D. Cal. May 25, 2007) (redacted brief).

2973. Notice of Lodging, In re NSA, No. 3:06-md-1791 (N.D. Cal. Aug. 3, 2007).

2974. Notice of Lodging, id. (Oct. 25, 2007).

2975. Opposition Brief, id. (Oct. 25, 2007).

2976. Id. at 2.

2977. Preservation Order, id. (Nov. 6, 2007).

2978. Notice of Lodging, Al-Haramain Islamic Found. v. Bush, No. 3:07-cv-109 (N.D. Cal. Mar. 14, 2008); Motion to Dismiss, id.
338 National Security Case Management Studies (11/14/2011)

Well, let me tell you what has been my reaction to the filings in these cases here before. And that has been that the classified materials that I have viewed in connection with 

the state secrets issues that have been litigated here, frankly, have not been very helpful

in resolving the issues that I have had to resolve.

And, consequently, I have come to the conclusion that what I should do, if at all

possible, is to address the issues that are raised without resort to any classified information, if I can.2979

Classified lodgings continued nevertheless. On September 19, 2008, the government lodged a classified certification by the Attorney General supporting its

motion to dismiss actions against the telephone companies in light of immunity

granted by the July 10, 2008, amendments to FISA.2980 On November 5, 2008, the 

government both lodged a classified reply

2981

and filed a public redacted reply

2982

in support of its motion. But Judge Walker did not review the classified lodgings

in advance of oral arguments:

I have not read the classified certification. I concluded that I would attempt to see if the

public filings would be sufficient to provide guidance to the Court as to how the action

should come out, or, at least, this motion should come out, and, if possible, to make a determination without relying upon the classified certification, then I d proceed in that fashion.

If I conclude that that is not possible, then I ll have to decide exactly what to do with

that particular document. But, you should know, at the outset, that what has been filed in

the public record is all that I ve seen in connection with the present motions, and nothing

else.2983

Subsequently, the government lodged classified declarations in conjunction

with case management statements.2984 Later, the government lodged a classified

brief and classified declarations supporting a motion for dismissal of the action

against the government originally filed in Brooklyn.2985

No one on Judge Walker s staff saw any of the classified documents.2986

Judge Walker s career law clerk obtained a security clearance, but the classified

warrantless wiretap briefs were for judges eyes only.2987 The law clerk s clearance allowed her to transport classified briefings between the FBI s SCIF and

Judge Walker s chambers.2988

 2979. Transcript, In re NSA, No. 3:06-md-1791 (N.D. Cal. Sept. 12, 2008).

2980. In re NSA Telecomm. Records Litig., 633 F. Supp. 2d 949, 957 (N.D. Cal. 2009); Notice of Lodging, In re NSA, No. 3:06-md-1791 (Sept. 19, 2008).

2981. Notice of Lodging, In re NSA, No. 3:06-md-1791 (Nov. 5, 2008).

2982. Reply, id.

2983. Transcript, id. (Dec. 2, 2008).

2984. Notices of Lodging, id. (Feb. 27, 2009).

2985. Notices of Lodging, id. (Oct. 30, 2009).

2986. Interview with Hon. Vaughn R. Walker, Feb. 15, 2007. 2987. Interview with Hon. Vaughn R. Walker, Feb. 15, 2007, and Sept. 29, 2008; Interview 

with Dep t of Justice Litig. Sec. Group Staff, Sept. 24, 2008. Judge Walker was his district s chief judge, and he used his career law clerk as his administrative law clerk. Interview with Hon. Vaughn R. Walker, Feb. 15, 2007.

2988. Interview with Hon. Vaughn R. Walker, Sept. 29, 2008; Interview with Dep t of Justice

Litig. Sec. Group Staff, Sept. 24, 2008.
National Security Case Management Studies (11/14/2011) 339

Judge Walker observed that presentation of classified information embedded

within unclassified material, with the classified information redacted in public

versions, makes it difficult to remember what is classified and what is not.2989 He 

would have preferred that classified information be referred to in code in the public briefs with a separate document laying out what information is classified.2990

Judges Pregerson, Hawkins, and McKeown, Ninth Circuit

Prior to this litigation, presentation of classified information to Ninth Circuit

judges involved delivery of the material to persons in the clerk s office with security clearances who stored it in a safe in San Francisco when the judges were not

looking at it.2991 Judges reviewed the material in San Francisco when they were in 

town.2992

In the appeals of refusals to dismiss on state-secrets grounds by Judge Walker

in the first action filed against AT&T and by Judge King in the action filed

against the government based on classified evidence, the government lodged classified briefs, and the court of appeals agreed that only the judges on the reviewing 

panel would see them.2993

This had an impact on the judges work with their law clerks. The law clerks

memoranda had to remain somewhat abstract,2994and the judges had to take care

that conversations with law clerks would not include topics that could give the

clerks hints about the contents of the restricted materials.2995

The classified information that the Ninth Circuit judges reviewed included

classified briefing by the government to both the district judges and the circuit

judges, the classified evidence submitted in Judge King s case, and classified

briefing by the plaintiffs concerning the classified evidence submitted in Judge

King s case.2996

Judge Hawkins observed that embedding classified information within the

narrative structure of the briefs, redacting the classified information for public

versions, facilitated comprehension.2997 A public brief written in code with a separate code sheet would have been more difficult to read.2998

 2989. Interview with Hon. Vaughn R. Walker, Sept. 29, 2008.

Circuit Judge Hawkins, on the other hand, observed that this method facilitates comprehension. Interview with Hon. Michael Daly Hawkins, Sept. 30, 2008; see infra. 2990. Interview with Hon. Vaughn R. Walker, Sept. 29, 2008.

2991. Interview with 9th Cir. Clerk s Office Staff, Sept. 29, 2008. Now there are safes suitable for storing top secret information in each of the court s four principal places of hearing cases: San Francisco, Pasadena, Seattle, and Portland. Id.; Interview with

Dep t of Justice Litig. Sec. Group Staff, Sept. 24, 2008.

2992. Interview with 9th Cir. Clerk s Office Staff, Sept. 29, 2008. 2993. 9th Cir. Al-Haramain Islamic Found. Docket Sheet, supra note 2699; 9th Cir. Hepting 

Docket Sheets, supra note 2739; see Vick, supra note 2740. 2994. Interview with Hon. M. Margaret McKeown, Jan. 9, 2008.

2995. Interview with Hon. Michael Daly Hawkins, Sept. 30, 2008.

2996. Interview with Hon. M. Margaret McKeown, Jan. 9, 2008.

2997. Interview with Hon. Michael Daly Hawkins, Sept. 30, 2008.
340 National Security Case Management Studies (11/14/2011)

Judge Pregerson wished that he could have received some guidance from the

plaintiffs on what to look for in the classified materials, but the plaintiffs could 

offer little guidance because they were denied access to the materials.2999 Perhaps 

clearance could be granted to an attorney in the Federal Defender s Office to

represent a party s interest in judges review of classified mateial when the party

is denied acces to it.3000

The same classified information security officer delivered the classified materials to the judges chambers both before and after oral argument.3001 Unlike the

officers who visited the Sixth Circuit judges, she provided no instructions on closing doors or windows.3002 A separate set of materials was prepared for each judge

so that they could make individual notes on the documents.3003 The officer, whose 

office is in Washington, D.C., was able to bring the materials back to the judges

whenever they wanted to see them on a couple of days notice.3004

It is important that as classified information security officers coordinate their

visits to judges chambers, they not disclose to persons other than the judges, such 

as attorneys representing the government, which judges they are visiting.3005 This 

is a problem more serious for appellate proceedings than for trial court proceedings, because cases are assigned to judges well in advance of the assignments

becoming public information.3006 And the assignment of opinion authorship is regarded as confidential until the opinion is issued.3007

The court agreed to permit 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.3008 Classified information security officers offered to review the court s opinion for inadvertently

disclosed secret information before the opinion s release, but the court declined 

the offer.3009

This was Judge Hawkins first case as a judge involving classified information.3010 Judge McKeown had to review classified information in approximately

two previous cases.3011 She had substantial experience as a practicing attorney in

 District Judge Walker, on the other hand, observed that this method made it more difficult to

remember what was classified and what was not. Interview with Hon. Vaughn R. Walker, Sept. 29, 2008; see supra. 2998. Interview with Hon. Michael Daly Hawkins, Sept. 30, 2008.

2999. Interview with Hon. Harry Pregerson, Oct. 1, 2008.

3000. Id.

3001. Interview with Hon. M. Margaret McKeown, Jan. 9, 2008.

3002. Id.

3003. Id.

3004. Interview with Hon. Michael Daly Hawkins, Sept. 30, 2008.

3005. Interview with Hon. M. Margaret McKeown, Jan. 9, 2008; Interview with Dep t of Justice Litig. Sec. Group Staff, Sept. 24, 2008.

3006. Interview with Hon. M. Margaret McKeown, Jan. 9, 2008.

3007. Id.

3008. Id.

3009. Id.

3010. Interview with Hon. Michael Daly Hawkins, Sept. 30, 2008.

3011. Interview with Hon. M. Margaret McKeown, Jan. 9, 2008.
National Security Case Management Studies (11/14/2011) 341

Seattle arguing trade secret cases in open court without revealing the secrets.3012

In over 40 years as a federal judge, including nearly 30 years as a circuit judge, Judge Pregerson had occasionally reviewed classified information before.3013

Even after the appeal had been resolved by a remand, the government lodged

a classified declaration of the Director of National Intelligence to correct an inaccuracy in an earlier government submission.3014 The court ruled, however, that it

no longer had jurisdiction to receive the lodging.3015

In 2011, the appellate court heard appeals of statutorially mandated dismissals

of actions against the telephone companies and dismissals of actions against the

government for lack of standing. Attorneys for the government admonished the

court by letter to its clerk, All classified information has been provided to the

Court with the understanding that the secrecy of this information will be properly

protected. 3016

Judge Hogan, District of the District of Columbia

In the Electronic Frontier Foundation s unsuccessful FOIA suit to discover the

secret FISC orders on which the government said it would rely to obtain warrants

for what previously were warrantless wiretaps, the government lodged, on June

25, 2007, for ex parte in camera review, a classified declaration opposing the 

plaintiff s motion that the court examine the secret orders.3017 Judge Hogan relied

on this declaration both to grant the government summary judgment and to deny

the motion to review the FISC orders.3018

Challenge: Classified Opinion

Although Judge Kennelly did not rely on classified submissions in his decision to

dismiss, with leave to amend, plaintiffs suit against AT&T for facilitating warrantless surveillance, he did decide to respond to the submissions.

We are issuing on this date a separate Memorandum discussing various points arising

from the classified materials; because that Memorandum discusses certain of the contents

of those materials, it, too, is classified and will be unavailable for inspection by the public 

or any of the parties or counsel in this case other than counsel for the government. The

court directs counsel for the government to cause the classified Memorandum be placed

in a secure location and to ensure its availability in the event of appellate review.3019

 3012. Id.

3013. Interview with Hon. Harry Pregerson, Oct. 1, 2008.

3014. Notice of Lodging, Al-Haramain Islamic Found. v. Bush, No. 06-36083 (9th Cir. Nov. 9, 

2009).

3015. Order, id. (Nov. 23, 2009).

3016. E.g., Letter, Jewel v. NSA, No. 10-15616 (9th Cir. Aug. 3, 2011); Letter, Hepting v. AT&T, No. 09-16676 (9th Cir. Aug. 3, 2011).

3017. Notice of Lodging, Elec. Frontier Found. v. Dep t of Justice, No. 1:07-cv-403 (D.D.C. June 25, 2007).

3018. D.D.C. Elec. Frontier Found. Summary Judgment Opinion, supra note 2815, at 11, 15, 18.

3019. Terkel v. AT&T, 441 F. Supp. 2d 899, 902 (N.D. Ill. 2006).
342 National Security Case Management Studies (11/14/2011)

To write the classified opinion, Judge Kennelly was required to compose the

opinion on a clean laptop computer provided by the classified information security officer.3020 The computer, and all drafts, were stored in the U.S. Attorney s

SCIF in the same building.3021 As the judge was preparing the classified opinion, he had additional questions for the government.3022 It was arranged that he would

ask them on a secured telephone unit in the U.S. Attorney s SCIF.3023

Judge Kennelly denied without prejudice a motion by the plaintiffs to publicly 

release the secret opinion. 3024

Challenge: Redacting Secrets

AT&T electronically filed a brief with several lines redacted, but the redacted text 

could be retrieved easily from the electronic document. It appears that when this

was brought to the court s attention, two days after the filing, the electronic text

file was replaced with an electronic image file.

At a May 17, 2006, hearing in the first case against telephone companies filed

in San Francisco, Judge Walker issued the following order:

Plaintiffs are instructed to file by close of business on May 22, 2006, a memorandum 

that addresses: (1) whether this case can be litigated without deciding the state secrets issue, thereby obviating any need for the court to review the government s classified memorandum and declarations and (2) whether the state secrets privilege is implicated by

plaintiffs FRCP 30(b)(6) deposition request for information whether AT&T received any

certification from the government. AT&T and the government may each file reply memoranda on these issues by close of business on May 24, 2006.3025 As instructed, AT&T filed a reply brief on May 24, 2006.3026 It appears that

AT&T filed an electronic version of the brief, with several lines on three pages

blacked out, and filed an unredacted paper version under seal.3027 Two days later, CNET reported online that the redacted text could easily be retrieved from the

electronic file.3028 On the day of the CNET report, the court filed a substitute electronic version of the redacted file.3029

 3020. Interview with Hon. Matthew F. Kennelly, May 24, 2007.

3021. Id.

3022. Id.

3023. Id.

3024. Minute Entry, Terkel v. AT&T, No. 1:06-cv-2837 (N.D. Ill. Feb. 21, 2007).

3025. Civil Minute Order, Hepting v. AT&T Corp., No. 3:06-cv-672 (N.D. Cal. May 17, 2006).

3026. N.D. Cal. Hepting Docket Sheet, supra note 2723. 3027. Notice of Manual Filing, Hepting, No. 3:06-cv-672 (N.D. Cal. May 24, 2006); N.D. Cal. 

Hepting Docket Sheet, supra note 2723. The redacted text appeared in one of AT&T s three arguments an argument spanning four

pages of the 20-page brief: II.B. The Court Cannot Adjudicate Plaintiffs Prima Facie Claims

Until It Reviews The Classified Submissions. Redacted Reply Brief, Hepting, No. 3:06-cv-672 

(N.D. Cal. May 26, 2006).

3028. Declan McCullagh, AT&T Leaks Sensitive Info in NSA Suit, May 26, 2006, http://news. 

com.com/AT38T+leaks+sensitive+info+in+NSA+suit/2100-1028_3-6077353.html. 3029. Redacted Reply Brief, supra note 3027; N.D. Cal. Hepting Docket Sheet, supra note 

2723.
National Security Case Management Studies (11/14/2011) 343

CNET s website provides a link to the originally filed Acrobat text file.3030

Selecting the redacted sections and pasting them into a text file reveals the redacted text. The replacement version filed two days later is an Acrobat image file

from which the redacted text cannot be selected.3031

Challenge: Court-Appointed National Security Expert

In the first San Francisco action against AT&T, Judge Walker asked the parties

for advice on whether he should name 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. 3032 The judge wrote, The court contemplates that the individual would be one who had a security

clearance for receipt of the most highly sensitive information and had extensive

experience in intelligence matters. 3033 Judge Walker did not believe that other

judges previously used Federal Rule of Evidence 706(a) to appoint an expert of

this type.3034 Judge Walker decided, however, not to appoint such an expert at

this stage. 3035

 3030. http://www.politechbot.com/docs/att.not.redacted.brief.052606.pdf. 3031. Redacted Reply Brief, supra note 3027. 3032. Hepting v. AT&T Corp., 439 F. Supp. 2d 974, 1010 (N.D. Cal. 2006); see id. at 1011

(ordering the parties to show cause in writing by July 31, 2006, why the court should not appoint

such an expert).

3033. Id. at 1010 11; see id. at 1011 (noting that the court had a specific candidate in mind). Judge Walker thought that former CIA Director James Woolsey would be a good candidate, but

one of the parties expressed concerns about Mr. Woolsey s having opined on the secret surveillance program. Interview with Hon. Vaughn R. Walker, Feb. 15, 2007.

3034. Hepting, 439 F. Supp. 2d at 1010.

3035. Civil Minute Order, Hepting v. AT&T Corp., No. 3:06-cv-672 (N.D. Cal. Aug. 8, 2006).
344 National Security Case Management Studies (11/14/2011)

Toledo

United States v. Amawi and Related Actions

(James G. Carr, N.D. Ohio)

On Thursday, February 16, 2006, the government filed a sealed indictment against 

three Muslim men of Toledo for conspiracy to fight United States forces in

Iraq.3036 Mohammad Zaki Amawi was a citizen of both the United States and Jordan, Marwan Othman el-Hindi was a naturalized citizen of the United States, and

Wassim I. Mazloum was a permanent resident of the United States.3037 El-Hindi 

and Mazloum were arrested in Toledo on Sunday; Amawi was arrested in Jordan

on Sunday and flown to the United States on Monday; the indictment was unsealed on Tuesday.3038 The U.S. District Court for the Northern District of Ohio

assigned the case to Judge James G. Carr.3039

Amawi was born in the United States of Jordanian parents; the family moved

back to Jordan when Amawi was two years old.3040 After the parents divorced, Amawi s mother moved with him to Toledo, about five years before the indictment.3041 In 2005, he worked at AZ Travel and Services.3042 Later that year, he

returned to Jordan.3043 El-Hindi was born in Jordan.3044 In the United States, he

dropped out of Onondaga Community College.3045 He had been married twice before his current marriage.3046 Mazloum was born in Lebanon and grew up in Ve-

 3036. Indictment, United States v. Amawi, No. 3:06-cr-719 (N.D. Ohio Feb. 16, 2006) [hereinafter Amawi Indictment]; see Dan Eggen, Ohio Men Accused of Plot to Kill Troops in Iraq, Wash. Post, Feb. 22, 2006, at A3; Amanda Garrett, Mike Tobin, Christopher Evans & Stephen

Koff, 3 Ohioans Face Terror Charges, Cleveland Plain Dealer, Feb. 22, 2006, at A1; Neil A. Lewis, 3 Charged with Conspiring to Kill U.S. Troops in Iraq, N.Y. Times, Feb. 22, 2006, at A12; 

Mike Wilkinson & Christina Hall, 3 Charged in Terror Plot, Toledo Blade, Feb. 22, 2006, at A1;

Andrew Zajac, Ohio Men Indicted on Terror Charges, Chi. Trib., Feb. 22, 2006, News, at 3.

3037. See Amawi Indictment, supra note 3036; Eggen, supra note 3036; Lewis, supra note 

3036; Zajac, supra note 3036. 3038. Docket Sheet, Amawi, No. 3:06-cr-719 (N.D. Ohio Feb. 16, 2006) [hereinafter Amawi

Docket Sheet]; see Eggen, supra note 3036; Garrett et al., supra note 3036; Wilkinson & Hall, supra note 3036; Zajac, supra note 3036. 3039. Amawi Docket Sheet, supra note 3038; see Mark Reiter, Deadline Imposed in Local

Terrorism Case, Toledo Blade, Mar. 8, 2006, at B1.

Tim Reagan interviewed Judge Carr for this report at a district judges workshop in San Antonio, Texas, on September 9, 2008.

3040. Interview with Hon. James G. Carr, Sept. 9, 2008.

3041. Id.; see Erika Ray, Experts Say Terror Links Are Formed Overseas, Toledo Blade, Feb. 23, 2006, at A6.

3042. See Ignazio Messina & Christina Hall, Business Falls at Firms Tied to 3 Suspects, Toledo Blade, Feb. 23, 2006, at A6.

3043. See Ray, supra note 3041. 3044. See Amawi Indictment, supra note 3036; Few Clues Available on Accused Toledo Man, Toledo Blade, Feb. 22, 2006, at A4 [hereinafter Few Clues].

3045. See Christopher Evans, Amanda Garrett, Mark Rollenhagen & Mike, Nickel-and-Dime 

Hustler, or Something Worse?, Cleveland Plain Dealer, May 21, 2006, at A1.

3046. See Evans, et al., supra note 3045; Few Clues, supra note 3044.
National Security Case Management Studies (11/14/2011) 345

nezuela. He moved to the United States in 2000.3047 With his brother, he operated

City Auto Sales, a used-car business, and he studied computer science and engineering at the University of Toledo.3048

Information about the conspiracy was provided to the government by a man

called the Trainer in the indictment.3049 According to the indictment, the Trainer 

was a United States citizen with a U.S. military background whom el-Hindi had

solicited to assist in providing security and bodyguard training. 3050 The Trainer

began passing information about the defendants to the government in 2004.3051

Part of his pitch to the defendants was that Muslims needed to protect themselves. This morphed into suggestions and then offers that he could provide training to the defendants in jihadist methods. This, in turn, he told them, would prepare them either to engage in combat against American forces in Iraq and/or provide training to do so for others.

The defendants fell for his spurious blandishments.3052 On March 2, newspapers identified the Trainer as Darren Griffin, also known

as Bilal, who had worked at a charity called KindHearts, which the government

shut down the same week it indicted Amawi, el-Hindi, and Mazloum.3053 Two 

days after Amawi s indictment, the government obtained a warrant to search AZ

Travel, where he worked.3054 The supporting affidavit refers to Griffin as a paid

cooperating witness who had been reporting to the FBI for four years.3055 On June 

6, 2006, Judge Carr issued an order forbidding public dissemination of Griffin s

image or identity.3056

A year after the original indictment was filed, a superseding indictment added

as defendants two Chicago men, cousins Zubair and Khaleel Ahmed.3057 A sepa-

 3047. See Erica Blake, Local Man in Terror Case Is Released on Bail, Toledo Blade, Sept. 1, 2007, at B1.

3048. See Christina Hall, Indictment of UT Student Shocks Family, Acquaintances, Toledo

Blade, Feb. 22, 2006, at A4; Messina & Hall, supra note 3042; David Yonke & Tom Troy, Toledo-Area Muslims Ask for Justice, Fear Backlash, Toledo Blade, Feb. 22, 2006, at A1.

3049. Amawi Indictment, supra note 3036; see Eggen, supra note 3036; Garrett et al., supra

note 3036; Lewis, supra note 3036; Wilkinson & Hall, supra note 3036; Zajac, supra note 3036. 3050. Amawi Indictment, supra note 3036

3051. See Joshua Boak, Detainee Served as Imam at Prison, Toledo Blade, Feb. 23, 2006, at

A1.

3052. Order, United States v. Amawi, No. 3:06-cr-719 (N.D. Ohio Oct. 6, 2011) (denying a

motion for a new trial based on new evidence), available at 2011 WL 4696477. 3053. Mike Tobin, Mark Rollenhagen & Christopher Evans, FBI S Informant Worked at Muslim Charity 3 Years, Cleveland Plain Dealer, Mar. 2, 2006, at A1; David Yonke, Insider in Local

Terror Arrests ID d, Toledo Blade, Mar. 2, 2006, at A1; Christopher D. Kirkpatrick & David

Yonke, Muslims Find Giving to Charity Now Harder, Toledo Blade, Mar. 6, 2006, at A1.

3054. Search Warrant, United States v. AZ Travel Inc., No. 3:06-mj-7025 (N.D. Ohio Feb. 18, 2006).

3055. Affidavit, AZ Travel Inc., No. 3:06-mj-7025 (N.D. Ohio filed unsealed Apr. 17, 2006);

see Mark Reiter, Feds Suspected Plot by Toledo Trio in 04, Toledo Blade, Apr. 18, 2006, at A1.

3056. Order, Amawi, No. 3:06-cr-719 (N.D. Ohio June 6, 2006).

3057. Superseding Indictment, id. (Feb. 7, 2007); see Jeff Coen & Tonya Maxwell, 2 Arrested

in Terror Conspiracy, Chi. Trib., Feb. 22, 2007, Metro, at 1; Mark Reiter, 2 Tied to Terror Sus-
346 National Security Case Management Studies (11/14/2011)

rate indictment charged el-Hindi and Ashraf Zaim, the owner of AZ Travel, with

grant fraud.3058 A third indictment charged Mazloum s brother Bilal with making

a false statement to federal agents during the investigation of Mazloum.3059 The 

court assigned the two new cases to Judge Carr.3060 Judge Carr decided that the

Ahmeds and Wassim Mazloum could be released on bond and electronic monitoring.3061 In December 2007, so that the trial against the original three defendants

could proceed without impairing the Ahmeds ability to mount defenses, the Ahmeds were dismissed from the superseding indictment, and a separate indictment 

was filed against them.3062

Jury selection for the trial of the original three defendants began on March 4, 2008.3063 Judge Carr allowed the attorneys to prepare and use a jury questionnaire.3064 Judge Carr permits attorneys to question potential jurors during voir

dire,3065 but he threatened to remove the privilege when the attorneys took too

much time trying to develop challenges for cause against too many potential jurors.3066 Voir dire proceeded more efficiently after that.3067

Judge Carr gave both sides extra peremptory challenges, but he was not lenient with challenges for cause.3068 After all potential jurors had been questioned, there remained many more than needed for the jury, alternates, and peremptory

challenges.3069 So Judge Carr invited the attorneys to file a joint motion to reconsider denials of cause challenges.3070 The attorneys accepted the invitation, poten-

 pects Indicted, Toledo Blade, Feb. 22, 2007, at A1; Libby Sander, 2 Chicago Cousins Are

Charged with Plotting Overseas Attacks, N.Y. Times, Feb. 22, 2007, at A20.

3058. Indictment, United States v. El-Hindi, No. 3:07-cr-74 (N.D. Ohio Feb. 8, 2007); see Reiter, supra note 3057; Sander, supra note 3057. 3059. Indictment, United States v. Mazloum, No. 3:07-cr-75 (N.D. Ohio Feb. 8, 2007); see

Reiter, supra note 3057; Sander, supra note 3057. 3060. Docket Sheet, Mazloum, No. 3:07-cr-75 (N.D. Ohio Feb. 8, 2007) [hereinafter Mazloum

Docket Sheet]; Docket Sheet, El-Hindi, No. 3:07-cr-74 (N.D. Ohio Feb. 8, 2007) [hereinafter El- Hindi Docket Sheet].

3061. See Blake, supra note 3047. 3062. Order, Amawi, No. 3:06-cr-719 (N.D. Ohio Dec. 27, 2007); Indictment, United States v. Ahmed, No. 1:07-cr-647 (N.D. Ohio Dec. 13, 2007).

3063. Amawi Docket Sheet, supra note 3038; see Erica Blake, U.S. Jury Pool Draws 450 for Terror Conspiracy Trial, Toledo Blade, Mar. 5, 2008, at B1; Damian G. Guevara, Toledo Trio

Accused in 2006 Terror Plot Head to Trial, Cleveland Plain Dealer, Mar. 4, 2008, at B1.

3064. James G. Carr, United States v. Amawi: Jury Questionnaire (Mar. 4, 2008); Interview

with Hon. James G. Carr, Sept. 9, 2008; see Transcript, Amawi, No. 3:06-cr-719 (N.D. Ohio Jan. 15, 2008, filed Jan. 25, 2010) [hereinafter Amawi Jan. 15, 2008, Transcript]; Transcript at 48 64, 

id. (Jan. 10, 2008, filed Jan. 25, 2010) [hereinafter Amawi Jan. 10, 2008, Transcript].

Judge Carr wishes he had given the questions greater scrutiny, because some proved to be too

confusing to the potential jurors. Interview with Hon. James G. Carr, Sept. 9, 2008.

3065. Interview with Hon. James G. Carr, Sept. 9, 2008; Amawi Jan. 10, 2008, Transcript, supra note 3064, at 62 63.

3066. Interview with Hon. James G. Carr, Sept. 9, 2008.

3067. Id.

3068. Id.

3069. Id.

3070. Id.
National Security Case Management Studies (11/14/2011) 347

tially appealable issues were removed, and a jury satisfactory to both sides and the 

court heard the case.3071

On March 24, Judge Carr severed from the trial two counts that were against

Amawi only for threats against the President,3072and the government later dismissed those counts.3073 Opening statements began on April 1.3074 Griffin testified 

the following day.3075 He testified that for nearly $56,000 a year he professed approval of overseas jihad to see who in the Toledo-area Muslim community would

respond, and the three defendants took the bait.3076 Closing arguments concluded

on Tuesday, June 10.3077 The jury reached guilty verdicts on Friday.3078

Judge Carr deferred sentencing of the three original defendants until after the

separate indictment against el-Hindi was resolved.3079 After a bench trial of five

court days in November 2008,3080 Judge Carr convicted el-Hindi on the fraud indictment and sentenced him to one year and a half;3081 the court of appeals affirmed.3082 Zaim pleaded guilty,3083

and Judge Carr sentenced him to one day of

custody.3084 In October 2009, Judge Carr sentenced the three original defendants:3085 20 years for Amawi;3086 12 years for el-Hindi,3087 to be served in ad-

 3071. Id.

3072. Order, United States v. Amawi, No. 3:06-cr-719 (N.D. Ohio Mar. 24, 2008).

3073. Government Motion, id. (July 15, 2008).

3074. Amawi Docket Sheet, supra note 3038. Following opening statements, Judge Carr provided the jurors with preliminary instructions. James G. Carr, United States v. Amawi: Preliminary Jury Instructions (Apr. 1, 2008).

3075. See Erica Blake, The Trainer Begins Terror Trial Testimony, Toledo Blade, Apr. 3, 2008, at A1.

3076. See id.

3077. Amawi Docket Sheet, supra note 3038; see Mark Reiter, Terrorist Plot Case Is Handed

to Jurors, Toledo Blade, June 11, 2008, at B1.

For jury instructions, see James G. Carr, United States v. Amawi: Final Jury Instructions (June 

10, 2008); James G. Carr, United States v. Amawi: Stipulated Definitions (June 4, 2008); James

G. Carr, United States v. Amawi: Supplemental Jury Instruction (June 10, 2008) (concerning examination of original evidence).

3078. Jury Verdicts, Amawi, No. 3:06-cr-719 (N.D. Ohio June 13, 2008); see Mark Reiter, 3 

Guilty in Plot to Kill Troops, Toledo Blade, June 14, 2008, at A1.

3079. See Erica Blake, Millions Spent on Terror Case, June 22, 2008, at A1.

3080. El-Hindi Docket Sheet, supra note 3060; see Erica Blake, Convicted Terrorist to Face

Another Trial, Toledo Blade, Nov. 5, 2008, at B1.

3081. Judgment and Commitment, United States v. El-Hindi, No. 3:07-cr-74 (N.D. Ohio Oct. 26, 2009); El-Hindi Sentencing Transcript at 163, Amawi, No. 3:06-cr-719 (N.D. Ohio Oct. 21, 2009, filed Jan. 22, 2010); see Erica Blake, El-Hindi Guilty of Conspiracy, Theft Charges, Toledo

Blade, Nov. 13, 2008, at B1.

3082. United States v. El-Hindi, 408 F. App x 957 (6th Cir. 2011). 3083. El-Hindi Docket Sheet, supra note 3060. 3084. Judgment and Commitment, El-Hindi, No. 3:07-cr-74 (N.D. Ohio Dec. 8, 2008).

3085. See Erica Blake, 3 in Toledo Terror Plot Will Serve up to 20 Years, Toledo Blade, Oct. 22, 2009, at A1.

3086. Amended Judgment and Commitment, Amawi, No. 3:06-cr-719 (N.D. Ohio Oct. 26, 2009); Amawi Sentencing Transcript at 287, id. (Oct. 21, 2009, filed Jan. 22, 2010).

3087. Judgment and Commitment, id. (Oct. 26, 2009); El-Hindi Sentencing Transcript, supra

note 3081, at 163.
348 National Security Case Management Studies (11/14/2011)

vance of the sentence on the fraud indictment;3088 and eight years and four months 

for Mazloum.3089 Appeals by both the defendants and the government are pending.3090

Bilal Mazloum was sentenced on August 26, 2008, to one year of probation

on a guilty plea.3091 On January 15, 2009, the Ahmeds both pleaded guilty to a

single count of material support to terrorists.3092 They surrendered to begin serving their sentences in advance of sentencing.3093 On July 12, 2010, Judge Carr

sentenced Zubair Ahmed to 10 years and Khaleel Ahmed to eight years and four

months.3094

Challenge: Attorney Client Contacts

As they began preparing their clients defenses, the defendants attorneys became

concerned that their communications with their clients were being improperly

monitored.3095 One month after the indictment was filed, the assistant federal defender representing Amawi filed a motion to compel the United States to describe with particularity the extent to which attorney client communications have

been or may be monitored, or in the alternative, for pretrial release on bond. 3096

Mazloum s attorney joined the motion on the next court day.3097 Government at-

 3088. Judgment and Commitment, El-Hindi, No. 3:07-cr-74 (N.D. Ohio Oct. 26, 2009); El- Hindi Sentencing Transcript, supra note 3081, at 163.

3089. Judgment and Commitment, Amawi, No. 3:06-cr-719 (N.D. Ohio Oct. 27, 2009); Mazloum Sentencing Transcript at 65, id. (Oct. 21, 2009, filed Jan. 22, 2010).

3090. Docket Sheet, United States v. Mazloum, No. 09-4345 (6th Cir. Nov. 4, 2009) (government s appeal of Mazoum s sentence, noting that the final brief was filed on Sept. 1, 2011); Docket Sheet, United States v. El-Hindi, No. 09-4342 (6th Cir. Nov. 4, 2009) (government s appeal of

El-Hindi s sentence); Docket Sheet, United States v. Amawi, No. 09-4340 (6th Cir. Nov. 4, 2009)

(government s appeal of Amawi s sentence); Docket Sheet, United States v. Mazloum, No. 09- 4344 (6th Cir. Nov. 4, 2009) (Mazoum s appeal); Docket Sheet, United States v. El-Hindi, No. 09- 4341 (6th Cir. Nov. 4, 2009) (El-Hindi s appeal); Docket Sheet, United States v. Amawi, No. 09- 4339 (6th Cir. Nov. 4, 2009) (Amawi s appeal); see Docket Sheet, United States v. Amawi, No. 11-4079 (6th Cir. Oct. 13, 2011) (noting a due date of Feb. 15, 2012, in Amawi s appeal from the

denial of a new trial); see also Terror Trio File Notices of Appeal with Federal Court, Toledo

Blade, Oct. 29, 2009, at B3; U.S. Appeals Sentences in Local Terrorism Case, Toledo Blade, Oct. 31, 2009, at B2.

3091. Mazloum Docket Sheet, supra note 3060. 3092. Docket Sheet, United States v. Ahmed, No. 1:07-cr-647 (N.D. Ohio Dec. 13, 2007)

[hereinafter Ahmed Docket Sheet]; see 2 Men Plead Guilty in Local Terror Case, Toledo Blade, Jan. 16, 2009, at B1.

3093. Surrender Order, Ahmed, No. 1:07-cr-647 (N.D. Ohio Jan. 8, 2010); Quarterly Report, id. (May 1, 2009).

3094. Sentencing Transcript at 44, 66, id. (July 12, 2010, filed Dec. 8, 2010); Ahmed Docket 

Sheet, supra note 3092. 3095. Transcript at 37 39, 41 43, United States v. Amawi, No. 3:06-cr-719 (N.D. Ohio Mar. 7, 2006, filed Jan. 22, 2010) [hereinafter Amawi Mar. 7, 2006, Transcript]; see Christina Hall, Scrutiny of Terror Suspects Strict, Toledo Blade, Feb. 25, 2006, at A1.

3096. Amawi Motion, Amawi, No. 3:06-cr-719 (N.D. Ohio Mar. 17, 2006); see Attorney Seeks

Data on Inmate Privacy, Toledo Blade, Mar. 18, 2006, at B1.

3097. Mazloum Motion, Amawi, No. 3:06-cr-719 (N.D. Ohio Mar. 20, 2006).
National Security Case Management Studies (11/14/2011) 349

torneys responded that they were not aware of any monitoring other than customary monitoring by the Bureau of Prisons.3098

Eight months into the case, Judge Carr reluctantly allowed Amawi to fire the 

federal defender s office, which was representing him; Amawi was concerned that 

a government employee would not represent him adequately.3099 Amawi was no

more satisfied with newly appointed counsel and eventually requested to be

represented by the federal defender s office again, a request that Judge Carr

granted.3100 Balancing Amawi s attorney s desire for more time to prepare for trial 

and el-Hindi s desire for a speedy trial, Judge Carr granted Amawi a short continuance to afford his reappointed attorney time to prepare.3101

Challenge: FISA Evidence

At an early status conference before the Ahmeds had been indicted Judge 

Carr, who sat on the court that reviewed surveillance warrants under the Foreign

Intelligence Surveillance Act (FISA), asked government counsel if the case would 

include FISA evidence.3102 The attorney, who appeared by telephone, responded, The answer to that question alone, it could be considered classified, and we

wouldn t be authorized to discuss that over this telephone line. 3103

On the day before the Ahmeds April 24, 2007, detention hearing, the government filed notices that it intended to use at the hearing evidence obtained pursuant to FISA warrants.3104 On September 14, the government filed a notice that it 

intended to use FISA evidence pertaining to each defendant at some point during

the case.3105 Judge Carr determined that it was not necessary to disclose to defense 

counsel FISA application materials for the FISA evidence for the court to determine the validity of the FISA evidence ex parte and in camera.3106

Challenge: Court Security

Judge Carr was distressed to learn about unnecessarily visible court security.3107

For example, prospective jurors had to walk by an SUV conspicuously marked as

a Department of Homeland Security vehicle.3108 It did not help that one news sta-

 3098. Government Responses, id. (Mar. 21, 2006).

3099. Transcript, id. (Oct. 19, 2006, filed Jan. 22, 2010); Amawi Docket Sheet, supra note 

3038; see Mark Reiter, Local Terror Suspect Will Get New Lawyer, Toledo Blade, Oct. 20, 2006, at B3.

3100. Transcript at 3 7, Ahmed, No. 3:06-cr-719 (N.D. Ohio Jan. 18, 2008, filed Jan. 22, 2010); Amawi Jan. 10, 2008, Transcript, supra note 3064, at 3; Interview with Hon. James G. Carr, Sept. 9, 2008.

3101. Interview with Hon. James G. Carr, Sept. 9, 2008.

3102. Amawi Mar. 7, 2006, Transcript, supra note 3095, at 5.

3103. Id.

3104. FISA Notices, Ahmed, No. 3:06-cr-719 (N.D. Ohio Apr. 23, 2007).

3105. FISA Notice, id. (Sept. 14, 2007).

3106. United States v. Amawi, 531 F. Supp. 2d 832 (N.D. Ohio 2008).

3107. Interview with Hon. James G. Carr, Sept. 9, 2008.

3108. Id.
350 National Security Case Management Studies (11/14/2011)

tion reported on the case with a graphic titled, Terror in Toledo. 3109 Chief Judge 

Carr was able to persuade security forces to convey less of a siege image.3110

Challenge: Jury Security

Judge Carr used an anonymous jury

3111

and had jurors report off-site instead of to

the courthouse during the trial.3112 To minimize prejudice, Judge Carr told the jurors that it was customary to use an anonymous jury in a criminal trial and that

off-site reporting was necessitated by insufficient courthouse parking availability, which actually was true to some extent.3113

 3109. Id.

3110. Id.

3111. Interview with Hon. James G. Carr, Sept. 9, 2008; Amawi Jan. 15, 2008, Transcript, supra note 3064, at 64 (recording vehement opposition by defense counsel).

3112. Interview with Hon. James G. Carr, Sept. 9, 2008.

3113. Id.
National Security Case Management Studies (11/14/2011) 351

Atlanta

United States v. Ahmed (Clarence Cooper,

William S. Duffey, Jr., and Gerrilyn G. Brill, N.D. Ga.)

On March 23, 2006, the FBI arrested Georgia Tech student Syed Haris Ahmed on

a sealed material support indictment filed in the Northern District of Georgia.3114

The court initially assigned the case to District Judge Clarence Cooper and Magistrate Judge Joel M. Feldman.3115 With the defendant s consent, the government

obtained from Judge Feldman permission to proceed initially under seal with

closed proceedings.3116 But on the following day, April 20, the day Ahmed

pleaded not guilty at a closed hearing,3117 the Atlanta Journal-Constitution reported Ahmed s arrest,3118

and as a result the goverment moved to unseal the

case.3119

Also on April 20, Magistrate Judge Linda T. Walker took over for Judge

Feldman,3120 because of Judge Feldman s impending retirement.3121 Two months

later, because of Judge Walker s recusal, Magistrate Judge Gerrilyn G. Brill took

over for Judge Walker.3122

Ahmed is an American citizen born in Pakistan.3123 He moved to the United

States with his parents and siblings in 1997.3124 At Georgia Tech, he majored in

mechanical engineering.3125

 3114. Indictment, United States v. Ahmed, No. 1:06-cr-147 (N.D. Ga. Mar. 23, 2006); see

Brenda Goodman, Student Is Held in Terror Case, N.Y. Times, Apr. 21, 2006, at A18; Bill Torpy, 

Terror Charge for Student, Atlanta J. & Const., Apr. 21, 2006, at A1.

3115. Docket Sheet, Ahmed, No. 1:06-cr-147 (N.D. Ga. Mar. 23, 2006) [hereinafter N.D. Ga. Docket Sheet]. 

For this report, Tim Reagan interviewed Judge Cooper and his law clerk Nicole Jenkins in the

judge s chambers on November 18, 2009.

3116. Order, Ahmed, No. 1:06-cr-147 (N.D. Ga. Apr. 19, 2006).

3117. Bill Torpy & Jeremy Redmon, Path Traced in Suspects Terror Case, Atlanta J. &

Const., Apr. 22, 2006, at A1. 3118. Bill Torpy & Mike Morris, FBI Detains Tech Student, but Won't Say Why, Atlanta J. &

Const., Apr. 20, 2006, at A1.

3119. Motion to Seal, Ahmed, No. 1:06-cr-147 (N.D. Ga. Apr. 20, 2006); see Goodman, supra

note 3114. 3120. N.D. Ga. Docket Sheet, supra note 3115. 3121. Reassignment Order, Ahmed, No. 1:06-cr-147 (N.D. Ga. Apr. 20, 2006) ( In light of the

potential length required to dispose of the above-styled case which may extend beyond the undersigned s scheduled October 22, 2006 retirement, IT IS HEREBY ORDERED that this case be

reassigned from the undersigned to the next magistrate scheduled to receive a long case, to wit: the 

Honorable Linda T. Walker. ); see Order, id. (Apr. 19, 2006) (declaring the case to be complex

under 18 U.S.C. § 3161(h)(8)(A), (B)(ii)).

3122. Reassignment Order, id. (June 21, 2006); Interview with Hon. Gerrilyn G. Brill, Nov. 18, 2009.

3123. See Goodman, supra note 3114; Torpy & Morris, supra note 3118. 3124. See Torpy & Morris, supra note 3118. 3125. See id.
352 National Security Case Management Studies (11/14/2011)

On July 19, 2006, the indictment against Ahmed was superseded to add Ehsanul Islam Sadequee as a defendant.3126 Sadequee was arrested while shopping in

Dhaka, Bangladesh, on April 17 and turned over to U.S. authorities.3127 The district court for the Eastern District of New York had issued a warrant for Sedequee s arrest on March 28.3128 American authorities transported him to the District 

of Alaska,3129 which committed Sedequee to the Eastern District of New York.3130

Sedequee was arraigned in Brooklyn on April 22.3131 On August 1, the Eastern

District of New York committed Sedequee to the Northern District of Georgia.3132

Sadequee pleaded not guilty in Atlanta to the superseding indictment on

August 9.3133

Ahmed and Sadequee met at Al-Farooq Masjid, a mosque near Georgia

Tech.3134 They agreed to prepare for violent jihad, including by playing paintball

in the north Georgia mountains.3135

Sadequee is a U.S. citizen born in Fairfax, Virginia; his parents are Bangladeshi.3136 He moved to the Atlanta area in 1988.3137 From 1999 to 2001, he studied

at an Islamic seminary in Ajax, Ontario.3138 In August 2005, he traveled to Bangladesh to marry a cousin.3139 While there, he studied business administration at

North South University in Dhaka.3140

On March 6, 2005, Ahmed and Sadequee traveled together to Toronto, which

has a very large Muslim community.3141 Two of the men they met were subsequently prosecuted by Canada after a 17-suspect terrorism sweep.3142

 3126. Superseding Indictment Ahmed, No. 1:06-cr-147 (N.D. Ga. July 19, 2006); see Jeffry 

Scott, Georgia Terror Suspects Accused of Dobbins Plot, Atlanta J. & Const., July 20, 2006, at D1.

3127. See William K. Rashbaum & Brenda Goodman, New Terror Accusations Keep a Geor- gia Man in Custody, N.Y. Times, Apr. 29, 2006, at A12; Torpy, supra note 3114; Torpy & Redmon, supra note 3117. 3128. Arrest Warrant, United States v. Sadequee, No. 1:06-mj-335 (E.D.N.Y. Mar. 28, 2006).

3129. Docket Sheet, United States v. Sadequee, No. 3:06-mc-11 (D. Alaska Apr. 21, 2006);

see Jeremy Redmon & Bill Torpy, Feds Trace Pair to D.C. in Terror Case, Atlanta J. & Const., Apr. 29, 2006, at A1.

3130. Commitment to Another District, Sadequee, No. 3:06-mc-11 (D. Alaska Apr. 21, 2006).

3131. Docket Sheet, Sadequee, No. 1:06-mj-335 (E.D.N.Y. Mar. 28, 2006).

3132. Docket Sheet, United States v. Sadequee, No. 1:06-mj-820 (E.D.N.Y. Aug. 1, 2006).

3133. N.D. Ga. Docket Sheet, supra note 3115; see Bill Torpy, Terror Case Suspect Returned

to Atlanta, Atlanta J. & Const., Aug. 10, 2006, at D12.

3134. See Torpy & Redmon, supra note 3117. 3135. Specific Findings at 2 4, United States v. Ahmed, No. 1:06-cr-147 (N.D. Ga. June 10, 2009).

3136. See Bill Torpy, Suspected Terrorists, Atlanta J. & Const., June 11, 2006, at A1; Redmon 

& Torpy, supra note 3129. 3137. See Torpy, supra note 3136. 3138. See id.

3139. See Rashbaum & Goodman, supra note 3127; Redmon & Torpy, supra note 3129. 3140. See Redmon & Torpy, supra note 3129. 3141. Specific Findings, supra note 3135, at 3; see Brenda Goodman, U.S. Says 2 Georgia

Men Planned a Terror Attack, N.Y. Times, Apr. 22, 2006, at A12; Torpy, supra note 3136.
National Security Case Management Studies (11/14/2011) 353

In April, Ahmed and Sadequee made casing videos of potential terrorism targets: the Capitol, the George Washington Masonic Memorial in Alexandria, the

World Bank, and a fuel storage facility in Newington, Virginia.3143 A suspected 

terrorist in Britain, Younis Tsouli, was discovered to have received the videos

over the Internet.3144

On July 17, Ahmed traveled to Pakistan.3145 His family claimed the trip was

for religious education, but the government claimed the purpose was military 

training.3146 On August 18, Sadequee traveled to Bangladesh.3147

Ahmed returned to the United States on August 19, and federal agents interviewed him upon his arrival.3148 They interviewed him again the following

March.3149

In October 2008, because of Judge Cooper s taking senior status four months

later, District Judge William S. Duffey, Jr., became the presiding judge.3150 The 

government decided to try Ahmed and Sadequee by separate indictments.3151

As trial approached, each of the defendants expressed a desire to represent 

himself.3152 Ahmed wanted to address the court during closing arguments.3153 Sadequee said that he wanted to question witnesses.3154

 3142. See Ian Austen & David Johnston, 17 Held in Plot to Bomb Sites Across Ontario, N.Y. Times, June 4, 2006, at 11; Bill Torpy, Ga. Terror Case Tied to Arrests, Atlanta J. & Const., June

4, 2006, at A1; Torpy, supra note 3136. 3143. Specific Findings, supra note 3135, at 5 6 ( That the videos were to advance and provide support for terrorism is demonstrated by Sadequee s narration during the dusk videotaping of

the Pentagon, when, referring to the Pentagon, Sadequee stated: this is where our brothers attacked. ); see Rashbaum & Goodman, supra note 3127; Redmon & Torpy, supra note 3129; Torpy, supra note 3136; Craig Whitlock & Spencer S. Hsu, Terror Webmaster Sentenced in Britain, Wash. Post, Jan. 24, 2008, at A10.

3144. Specific Findings, supra note 3135, at 13; see Torpy, supra note 3136. On July 5, 2007, Tsouli was sentenced by a British court to 10 years in prison. See Whitlock & 

Hsu, supra note 3143. 3145. Specific Findings, supra note 3135, at 10; see Torpy, supra note 3136. 3146. See Torpy, supra note 3136. 3147. Specific Findings, supra note 3135, at 10.

3148. Id. at 11.

3149. Id. at 15.

3150. N.D. Ga. Docket Sheet, supra note 3115 (noting transfer on Oct. 1, 2008); Interview

with Hon. Clarence Cooper, Nov. 18, 2009; see Transcript at 3, United States v. Ahmed, No. 1:06- cr-147 (N.D. Ga. Jan. 26, 2009, filed Feb. 12, 2009) [hereinafter First Jan. 26, 2009, Transcript];

Transcript at 2 3, id. (Jan. 26, 2009, filed Jan. 30, 2009) [hereinafter Second Jan. 26, 2009, Transcript]; Federal Judicial Center Biographical Directory of Federal Judges, http://www.fjc.gov/ 

public/home.nsf/hisj (noting Judge Cooper s taking senior status on Feb. 9, 2009). Tim Reagan interviewed Judge Duffey for this report in the judge s chambers on June 16, 2009, and by telephone on February 18, 2010.

3151. Third Superseding Indictment, Ahmed, No. 1:06-cr-147 (N.D. Ga. Dec. 9, 2008) (superseding indictment against Sadequee); Second Superseding Indictment, id. (superseding indictment

against Ahmed).

3152. Second Jan. 26, 2009, Transcript, supra note 3150, at 21 ( [Sadequee]: I also wanted to

ask about I m considering going pro se. And I understand that there is a number of categories, like 

standby counsel. ); id. at 27 (Ahmed would like to address [the court] again about an issue that

he just raised for the first time at counsel table similar to what Mr. Sadequee the discussion you
354 National Security Case Management Studies (11/14/2011)

Judge Duffey agreed to let Ahmed proceed with counsel but make his own

closing statement if the trial were to the bench rather than to a jury.3155 Ahmed 

opted for a bench trial,3156 which began on June 1, 2009.3157 He said that he

thought that Judge Duffey would be more objective than the average juror.3158 On 

the fourth day of trial, as the court prepared to hear closing arguments, Judge Duffey clarified that Ahmed elected not to testify and that his closing remarks could

not be considered as evidence.3159 On June 9, Judge Duffey announced that

Ahmed was guilty.3160

The case received extensive coverage, especially by local news media.3161 One 

status conference held in Judge Brill s chambers was attended by reporters from

several news media because there had been talk of closing the proceeding.3162

Judge Brill observed that sealing documents and closing proceedings often intensifies news media interest.3163

One local journalist sat through the entire trial.3164 Judge Duffey reserved a

row of seats for the press, and he permitted sketch artists to sit in the jury box.3165

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 the evidence to the

 had with Mr. Sadequee. ); First Jan. 26, 2009, Transcript, supra note 3150, at 14 ( [Ahmed]: I

wanted to file a motion to terminate counsel. ); see Bill Rankin, Terror Suspects May Want to

Defend Selves, Atlanta J. & Const., Jan. 28, 2009, at C3.

3153. Interview with Hon. William S. Duffey, Jr., June 16, 2009; see Bill Rankin, No Jury for Terror Suspect, Atlanta J. & Const., May 20, 2009, at B1.

3154. Transcript at 31, Ahmed, No. 1:06-cr-147 (N.D. Ga. Mar. 3, 2009, filed Mar. 13, 2009)

( I would definitely intend to interview witnesses. . . . I also perhaps would make some statements

in the opening statement or closing statement. ); First Jan. 30, 2009, Transcript, supra note 3150

( maybe I would just interview one or two witnesses ); see Rankin, supra note 3152. 3155. Transcript at 6 7, Ahmed, No. 1:06-cr-147 (N.D. Ga. May 19, 2009, filed Jan. 12, 2010)

[hereinafter May 19, 2009, Transcript]; Transcript, id. (May 18, 2009, filed Jan. 12, 2010).

3156. May 19, 2009, Transcript, supra note 3155, at 3 6; Specific Findings, supra note 3135, at 2; Interview with Hon. William S. Duffey, Jr., June 16, 2009; see Rankin, supra note 3153. 3157. N.D. Ga. Docket Sheet, supra note 3115; Transcript, Ahmed, No. 1:06-cr-147 (N.D. Ga. June 1, 2009, filed June 19, 2009); Specific Findings, supra note 3135, at 2; see Bill Rankin, Defendant Fell Prey to Extremist, Lawyer Says, Atlanta J. & Const., June 2, 2009, at A10.

3158. May 19, 2009, Transcript, supra note 3155, at 9.

3159. Transcript at 877 78, 910, Ahmed, No. 1:06-cr-147 (N.D. Ga. June 4, 2009, filed June

19, 2009); see May 19, 2009, Transcript, supra note 3155, at 8 ( THE DEFENDANT: . . . Can I

explain something? I mean, as long as I can say this statement, I don t care if it s considered for

my trial or not. For me that s to say the statement, deliver it in public is all I care about. ). 3160. Verdict, Ahmed, No. 1:06-cr-147 (N.D. Ga. June 10, 2009); Transcript at 4, id. (June 10, 

2009, filed June 19, 2009) [hereinafter June 10, 2009, Transcript]; Specific Findings, supra note 

3135, at 2; see Robbie Brown, Georgia Man Is Convicted in Conspiracy, N.Y. Times, June 11, 2009, at A21; Bill Rankin, Terror Trial Verdict: Guilty, Atlanta J. & Const., June 11, 2009, at A1.

3161. Interview with Hon. Clarence Cooper, Nov. 18, 2009; Interview with Hon. Gerrilyn G. Brill, Nov. 18, 2009; Interview with Hon. William S. Duffey, Jr., June 16, 2009.

3162. Interview with Hon. Gerrilyn G. Brill, Nov. 18, 2009.

3163. Id.

3164. Interview with Hon. William S. Duffey, Jr., June 16, 2009.

3165. Id.
National Security Case Management Studies (11/14/2011) 355

media.3166 No one in Judge Duffey s chambers was permitted to convey information to news media, except to read those few answers provided by Judge Duffey

to their questions about scheduling.3167

Judge Duffey sealed his special findings supporting the guilty verdict until after Sadequee s jury trial.3168 News media initially objected to the idea, but they

came to accept the temporary sealing as proper.3169 Judge Duffey provided copies

of the sealed findings to the parties attorneys of record, forbidding them from 

revealing them to anyone else; the defendant was permitted to examine his attorney s copy but not to retain a copy.3170

For Sadequee s trial, Judge Duffey used a jury questionnaire.3171 Prospective 

jurors filled out the questionnaire a week in advance of voir dire.3172 This gave the 

lawyers and the court ample time to review the questionnaires to focus follow-up 

voir dire on the most important issues.3173

Judge Duffey 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.3174

Jury selection in Sadequee s trial began on August 3, 2009.3175 That morning, Sadequee announced that he would represent himself.3176 Judge Duffey appointed

his attorneys as standby counsel.3177 Sadequee cross-examined the government s

witnesses and called only his sister as his own witness.3178 He did not testify him-

 3166. Id.

3167. Id.

3168. June 10, 2009, Transcript, supra note 3160, at 5; Specific Findings, supra note 3135; 

N.D. Ga. Docket Sheet, supra note 3115; Interview with Hon. William S. Duffey, Jr., June 16, 2009.

3169. Interview with Hon. William S. Duffey, Jr., June 16, 2009.

3170. June 10, 2009, Transcript, supra note 3160, at 6.

3171. William S. Duffey, Jr., United States v. Sadequee: Jury Questionnaire (July 22, 2009)

[hereinafter Jury Questionnaire]; Interview with Hon. William S. Duffey, Jr., February 18, 2010.

3172. Interview with Hon. William S. Duffey, Jr., February 18, 2010.

3173. Id.

Judge Duffey tries to minimize the amount of jurors idle time at the courthouse. Id.

3174. Jury Questionnaire, supra note 3171; Interview with Hon. William S. Duffey, Jr., February 18, 2010.

3175. N.D. Ga. Docket Sheet, supra note 3115. 3176. Id.; Transcript at 3, United States v. Ahmed, No. 1:06-cr-147 (N.D. Ga. Aug. 3 and 4, 2009, filed Aug. 31, 2009) [hereinafter Aug. 3 and 4, 2009, Transcript]; Interview with Hon. William S. Duffey, Jr., February 18, 2010.

3177. Interview with Hon. William S. Duffey, Jr., February 18, 2010.

3178. Transcript, Ahmed, No. 1:06-cr-147 (N.D. Ga. Aug. 10, 2009, filed Sept. 2, 2009) [hereinafter Aug. 10, 2009, Transcript]; Transcripts, id. (Aug. 5 7, 2009, filed Aug. 31 to Sept. 2, 2009); Aug. 3 and 4, 2009, Transcript, supra note 3176.
356 National Security Case Management Studies (11/14/2011)

self,3179 but he did present a closing argument.3180 On, August 12, the jury found

Sadequee guilty on all four counts presented.3181

The defendants represented themselves at sentencing, although their lawyers

were allowed to argue some sentencing guidelines issues.3182 On December 14, Judge Duffey sentenced Ahmed to 13 years and sentenced Sadequee to 17

years.3183 Both defendants voluntarily dismissed their appeals.3184

Challenge: Closed Proceeding

When Ahmed entered a plea, Sadequee had not yet been indicted, and the government received permission from the court, with Ahmed s consent, to have the

proceeding closed.3185 Deputy marshals taped newspapers to the windows on the

courtroom door so that no one could see inside.3186

Judge Brill granted the news media s motion to intervene for the purpose of

possibly challenging sealing and closure orders.3187

Challenge: Attorney Appointment

Initially, one of the attorneys appointed to represent Sadequee was an attorney in

the Federal Public Defender s office.3188 But Sadequee was assaulted in detention

by another inmate who was also represented by that office, so the office could no

longer represent Sadequee.3189 Judge Brill appointed a Muslim attorney with offices in Miami as a replacement.3190

 3179. Aug. 10, 2009, Transcript, supra note 3178, at 1241 42.

3180. Transcript, Ahmed, No. 1:06-cr-147 (N.D. Ga. Aug. 11, 2009, filed Sept. 2, 2009).

3181. Jury Verdict, id. (Aug. 12, 2009) (guilty of conspiracy to provide material support to terrorists, providing and attempting to provide material support to terrorists, conspiracy to provide

material support to a designated foreign terrorist organization, and attempting to provide material

support to a designated foreign terrorist organization); Transcript, id. (Aug. 12, 2009, filed Sept. 2, 

2009).

3182. Transcript, id. (Dec. 14, 2009, filed Jan. 12, 2010) (Ahmed s sentencing); Transcript, id.

(Dec. 14, 2009, filed Jan. 8, 2010) (Sadequee s sentencing); N.D. Ga. Docket Sheet, supra note 

3115; see Motion, Ahmed, No. 1:06-cr-147 (N.D. Ga. Oct. 7, 2009).

3183. Judgment and Commitment, Ahmed, No. 1:06-cr-147 (N.D. Ga. Dec. 15, 2009)

(Ahmed s sentence); Judgment and Commitment, id. (Dec. 14, 2009) (Sadequee s sentence); see

Bill Rankin, Two Terrorists Get Prison Sentences, Atlanta J. & Const., Dec. 15, 2009, at A1.

3184. Docket Sheet, United States v. Ahmed, No. 09-16452 (11th Cir. Dec. 29, 2009) (noting

May 20, 2011, dismissal); Docket Sheet, United States v. Sadequee, No. 09-16325 (11th Cir. Dec. 21, 2009) (noting Apr. 9, 2010, dismissal).

3185. Order, Ahmed, No. 1:06-cr-147 (N.D. Ga. Apr. 19, 2006).

3186. See Torpy & Redmon, supra note 3117. 3187. N.D. Ga. Docket Sheet, supra note 3115 (noting Sept. 1, 2006, minute order).

3188. Appointment Order, Ahmed, No. 1:06-cr-147 (N.D. Ga. Aug. 9, 2006).

3189. Interview with Hon. Gerrilyn G. Brill, Nov. 18, 2009; see Transcript at 5, 7 8, Ahmed, No. 1:06-cr-147 (N.D. Ga. Jan. 5, 2009, filed Jan. 30, 2009).

3190. Interview with Hon. Gerrilyn G. Brill, Nov. 18, 2009; see Transcript at 11 12, Ahmed, No. 1:06-cr-147 (N.D. Ga. Sept. 18, 2008, filed Sept. 23, 2008) [hereinafter Sept. 18, 2008, Transcript].
National Security Case Management Studies (11/14/2011) 357

Challenge: Classified Evidence

Early in the case, Judge Feldman issued a protective order requiring the defense to 

keep confidential discovery that, although not classified, was sensitive.3191 Judge 

Brill denied as overly broad and excessively burdensome for the court a subsequent government request for a protective order requiring defendants to file under

seal, until the court could redact unclassified but sensitive information, all papers

based on discovery.3192 News media were vigilent in arguing that the case be

prosecuted openly.3193 Judge Brill insisted that specific reasons be articulated for

the sealing of any filings.3194 The parties subsequently agreed to a protective order 

that Judge Brill could sign.3195

On June 16, 2006, before Sadequee was added to the indictment, the government filed a notice that it would use evidence obtained through the Foreign Intelligence Surveillance Act (FISA) and a motion for a protective order, pursuant to

the Classified Information Procedures Act, laying out ground rules for defense

access to classified evidence.3196 On February 8, 2007, Judge Cooper signed a

protective order laying out procedures for handling classified information.3197

Defense counsel had to obtain security clearances.3198 So did court staff.3199

District judges have security clearances by virtue of their office, but magistrate 

judges must obtain security clearances to see classified information.3200

Before classified evidence is presented at trial, and often before it can be

shared with defendants themselves, in addition to their cleared counsel, the evidence is either declassified or substituted with court-approved summaries or admissions.3201 At an early 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 discretion 

poses some risk of disclosure of sources, even if we do substitutions. 3202

 3191. Protective Order Ahmed, No. 1:06-cr-147 (N.D. Ga. Apr. 19, 2006).

3192. Order, id. (Oct. 26, 2006); see Bill Torpy, Terror Case Files to Remain Open, Atlanta J. & Const., Oct. 27, 2006, at D3.

3193. See Moni Basu, Judge Seeks Balance on Terror Case Evidence, Atlanta J. & Const., Dec. 16, 2006, at B3.

3194. See id.

3195. Order, Ahmed, No. 1:06-cr-147 (N.D. Ga. Dec. 20, 2006).

3196. N.D. Ga. Docket Sheet, supra note 3115; see Bill Torpy, Lawyer in Georgia Terror Case Must Show Need to Know, Atlanta J. & Const., June 20, 2006, at B3.

3197. Protective Order, Ahmed, No. 1:06-cr-147 (N.D. Ga. Feb. 8, 2007).

3198. See Bill Torpy, Security Clearance Slows Terror Case, Atlanta J. & Const., Sept. 2, 2006, at D3.

3199. Interview with Hon. Clarence Cooper, Nov. 18, 2009; Interview with Hon. Gerrilyn G. Brill, Nov. 18, 2009; Interview with Hon. William S. Duffey, Jr., June 16, 2009.

3200. Security Procedures Established Pursuant to PL 96-456, 94 Stat. 2025, by the Chief Justice of the United States for the Protection of Classified Information ¶ 4, 18 U.S.C. app. 3 § 9 note; 

see Torpy, supra note 3198. 3201. 18 U.S.C. §§ 4, 6(c)(1) (2000); see Reagan, supra note 173, at 12 14; Sept. 18, 2008, Transcript, supra note 3190, at 4 5.

3202. Sept. 18, 2008, Transcript, supra note 3190, at 16.
358 National Security Case Management Studies (11/14/2011)

Much pretrial work in criminal cases in the Northern District of Georgia is

done by magistrate judges.3203 Judge Brill reviewed classified foundations for trial 

evidence at an in camera proceeding with counsel for both sides present. 3204

Some classified information in this case was designated sensitive compartmented information (SCI), which means that it is protected by special procedures

compartmenting who has access to it.3205 Judges and court staff could view this

information at a sensitive compartmented information facility (SCIF) at the U.S. Attorney s office in the same building as the courthouse.3206 Judges Duffey and 

Brill were permitted to keep some classified materials in chambers safes.3207 A 

secure room was set aside for defense counsel to store and review classified information.3208 Classified information security officers reviewed any documents

prepared based on classified information for possible redaction.3209

From 2001 until his becoming a judge in 2004, Judge Duffey was the district s

U.S. Attorney.3210 He was, therefore, familiar with the security staff at the U.S. Attorney s office.3211 To view classified materials for the case, Judge Duffey

made an appointment with the U.S. Attorney s security staff, and the judge usually complied with their request that he give them at least a day s notice and not

stay past 5:00 p.m.3212

Challenge: FISA Evidence

Two months after the government provided notice that it would use FISA evidence in the case, Ahmed filed a motion to suppress FISA evidence.3213 Judge 

Brill issued a report and recommendation finding no errors in FISA procedures

and finding that none of the FISA materials were discoverable.3214 Judge Brill acknowledged that defense counsel are in a difficult position when arguing for suppression of FISA evidence, because they do not have access to the FISA 

records.3215 On the other hand, a FISA suppression motion is easier for the judge

 3203. Interview with Hon. Clarence Cooper, Nov. 18, 2009; Interview with Hon. Gerrilyn G. Brill, Nov. 18, 2009; see Sept. 18, 2008, Transcript, supra note 3190, at 2.

3204. Report and Recommendation, United States v. Ahmed, No. 1:06-cr-147 (N.D. Ga. Oct. 2, 2007), adopted, Order, id. (Dec. 19, 2008); see Minute Sheet, id. (Sept. 24, 2007).

3205. See Reagan, supra note 173, at 3 (describing sensitive compartmented information).

3206. See Torpy, supra note 3192; see also Reagan, supra note 173, at 19 (describing SCIFs).

3207. Id.; Interview with Hon. William S. Duffey, Jr., June 16, 2009.

3208. Interview with Dep t of Justice Litig. Sec. Group Staff, Oct. 18, 2011. 3209. Interview with Hon. Clarence Cooper, Nov. 18, 2009; Interview with Hon. Gerrilyn G. Brill, Nov. 18, 2009; Interview with Hon. William S. Duffey, Jr., June 16, 2009; see Torpy, supra

note 3192. 3210. Federal Judicial Center Biographical Directory of Federal Judges, http://www.fjc.gov/ 

public/home.nsf/hisj; see Rankin, supra note 3153. 3211. Interview with Hon. William S. Duffey, Jr., June 16, 2009.

3212. Id.

3213. FISA Motion, United States v. Ahmed, No. 1:06-cr-147 (N.D. Ga. Aug. 16, 2006).

3214. Report and Recommendation, id. (Aug. 22, 2007).

3215. Interview with Hon. Gerrilyn G. Brill, Nov. 18, 2009.
National Security Case Management Studies (11/14/2011) 359

than many other suppression motions, because collection of the FISA evidence

has been subjected to prior judicial review.3216

Ahmed also filed a motion that the government disclose whether he had been

subject to warrantless surveillance by the National Security Agency outside

FISA.3217 Judge Cooper denied the motion.3218

 3216. Id.

3217. NSA Motion, Ahmed, No. 1:06-cr-147 (N.D. Ga. Aug. 16, 2006).

3218. Order, id. (Feb. 7, 2007).
360 National Security Case Management Studies (11/14/2011)

Sears Tower

United States v. Batiste

(Joan A. Lenard, S.D. Fla.)

In an effort to thwart a suspected plot to topple the building formerly known as

the Sears Tower in Chicago and attack other targets in Chicago, Washington, New 

York, Los Angeles, and Miami, the government indicted seven men with ties to

the Liberty City neighborhood of Miami on June 22, 2006.3219 Narseal Batiste, 

Burson Augustin, his brother Rotschild Augustine, Naudimar Herrera, and Stanley Grant Phanor were American citizens.3220 Phanor was already in jail for a probation violation; the others were arrested in Miami on the day of indictment.3221

Patrick Abraham was a Hatian arrested in Miami on May 9 for overstaying his

tourist visa.3222 Lyglenson Lemorin was a legal Hatian immigrant who had moved

to Atlanta approximately two months previously, and he was arrested there on 

June 22.3223 The defendants became known as the Liberty City Seven.3224

Batiste, married with four children, was born in Chicago and grew up there

and in Louisiana, where his father was a Baptist preacher.3225 His mother died in

 3219. Indictment, United States v. Batiste, No. 1:06-cr-20373 (S.D. Fla. June 22, 2006); United States v. Augustin, ___ F.3d ___, ___, 2011 WL 5141523 (11th Cir. 2011) (pp.13 14 of filed

opinion); see Christopher Drew & Eric Lichtblau, Two Views of Terror Suspects: Die-Hards or Dupes, N.Y. Times, July 1, 2006, at A1; David Ovalle, Evan S. Benn, Larry Lebowitz & Luisa

Yanez, Terrorism Raid Targets a Warehouse in Miami, Miami Herald, June 23, 2006, at 1A; Walter Pincus, FBI Role in Terror Probe Questioned, Wash. Post, Sept. 2, 2006, at A1; Scott Shane & 

Andrea Zarate, F.B.I. Killed Plot in Talking State, a Top Aide Says, N.Y. Times, June 24, 2006, at

A1; Peter Whoriskey & Dan Eggen, Terror Suspects Had No Explosives and Few Contacts, Wash. 

Post, June 24, 2006, at A3.

In 2009, the Sears Tower became known as the Willis Tower. See Mary Ellen Podmolik, Tower Title Holds Power, Chi. Trib., Mar. 13, 2009, News, at 5.

3220. See Shane & Zarate, supra note 3219; Whoriskey & Eggen, supra note 3219. 3221. Augustin, ___ F.3d at ___, 2011 WL 5141523 (p.13 of filed opinion); see Trenton Daniel, Nicole White & Andres Viglucci, Bible Their Book, Work Their Life, Family Says, Miami

Herald, June 24, 2006, at 1A; Shane & Zarate, supra note 3219; Whoriskey & Eggen, supra note 

3219. 3222. Augustin, ___ F.3d at ___, 2011 WL 5141523 (p.13 of filed opinion); see Shane & Zarate, supra note 3219; Whoriskey & Eggen, supra note 3219. 3223. Augustin, ___ F.3d at ___, 2011 WL 5141523 (p.13 of filed opinion); see Daniel et al., supra note 3221; Kirk Semple, U.S. Falters in Terror Case Against 7 in Miami, N.Y. Times, Dec. 14, 2007, at A22; Shane & Zarate, supra note 3219; Jay Weaver & Luisa Yanez, Mistrial Called

for 6 of Liberty City 7, Miami Herald, Dec. 14, 2007, at 1A; Peter Whoriskey, Man Acquitted in 

Terror Case Faces Deportation, Wash. Post, Mar. 2, 2008, at A3; Whoriskey & Eggen, supra note 

3219. 3224. See Abby Goodnough, Trial Starts for Men in Plot to Destroy Sears Tower, N.Y. Times, 

Oct. 3, 2007, at A14.

3225. See Daniel et al., supra note 3221; Drew & Lichtblau, supra note 3219; Charles Rabin

& Susannah A. Nesmith, Family: Suspect Grew Up Deeply Religious, Miami Herald, June 27, 2006, at 1A.
National Security Case Management Studies (11/14/2011) 361

2000.3226 At one time, he worked for FedEx in Chicago.3227 Batiste and his wife

operated a stucco and masonry business, and he held Bible readings at his warehouse.3228 Batiste, also known as Prince Manna, followed the traditions of the

Moorish Science Temple of America, founded in 1913 by the Prophet Noble

Drew Ali, which blends Judaism, Christianity, and Islam, with an emphasis on

self-discipline through martial arts.3229 He called his religious group the Seas of

David.3230

Abraham was Batiste s right-hand man.3231 Phanor was born in Miami of Hatian parents.3232 He attended Edison Senior High School and finished high school

in Tallahassee.3233 At the time of his arrest, he was living in Batiste s warehouse.3234 Herrera s parents were from the Dominican Republic.3235 Lemorin, 

born in Haiti and married with two children, came to the United States as a child

in 1993 and had permanent resident status.3236

The case against the men was established by Elie Assad, a veteran government informant who posed as a representative of Al-Qaeda.3237 Assad provided

the suspects with military boots and a video camera for casing targets.3238 The FBI 

paid him $17,000 plus $19,570 in expenses, and the government granted him political asylum.3239 Abbas al-Saidi, another informant, was paid $10,500 plus

$8,815 in expenses.3240

 3226. See Rabin & Nesmith, supra note 3225. 3227. See Drew & Lichtblau, supra note 3219; Pincus, supra note 3219. 3228. See Drew & Lichtblau, supra note 3219. 3229. United States v. Augustin, ___ F.3d ___, ___, 2011 WL 5141523 (11th Cir. 2011) (p.4

of filed opinion); see Drew & Lichtblau, supra note 3219; Charles Rabin & Alexandra Alter, Group Denies Violent Doctrine, Miami Herald, June 24, 2006, at 29A; Whoriskey, supra note 

3223; Peter Whoriskey, Trial Begins for 7 Accused of Plotting to Destroy Sears Tower, Wash. Post, Oct. 3, 2007, at A9 [hereinafter Trial Begins].

3230. See Drew & Lichtblau, supra note 3219; Goodnough, supra note 3224; Shane & Zarate, supra note 3219. 3231. See Jay Weaver & David Ovalle, How FBI Moles Snared Terror Suspects, Miami Herald, July 16, 2006, at 1A. 

3232. See id.

3233. See id.

3234. See id.

3235. See id.

3236. See Daniel et al., supra note 3221; Whoriskey, supra note 3223. 3237. United States v. Augustin, ___ F.3d ___, ___, 2011 WL 5141523 (11th Cir. 2011) (p.6

of filed opinion); see Goodnough, supra note 3224; Shane & Zarate, supra note 3219; Said, supra

note 2620, at 725 26; Sherman, supra note 2620, at 1489 93; Whoriskey, Trial Begins, supra

note 3229; Whoriskey & Eggen, supra note 3219. Assad was born in Lebanon of Syrian descent. See Jay Weaver, Liberty City Seven Defense

Faces Setbacks, Miami Herald, Oct. 23, 2007, at 1B (reporting that Assad was paid $80,000 and

al-Saidi was paid about $40,000).

3238. Augustin, ___ F.3d at ___, 2011 WL 5141523 (p.7 of filed opinion); see Goodnough, 

supra note 3224; Shane & Zarate, supra note 3219; Whoriskey & Eggen, supra note 3219. 3239. See Pincus, supra note 3219; Jay Weaver, Trial for Liberty City Seven to Start March

3, Miami Herald, July 27, 2006, at 3B.

3240. See Pincus, supra note 3219; Weaver, supra note 3239.
362 National Security Case Management Studies (11/14/2011)

The court assigned the case to Judge Joan A. Lenard.3241 Jury selection began

on September 18, 2007.3242 Judge Lenard did not use a jury questionnaire; in a

dozen years on the bench, she had never used one.3243 She prefers face-to-face 

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.3244

Opening statements began on October 2.3245 Later that month, a Miami police

counterterrorism pamphlet, which was distributed at a Metrorail station, was discovered in the jury room.3246 Judge Lenard dismissed two jurors and an alternate

who said they had read it.3247

Jury deliberations began on December 3.3248 On December 13, the jury acquitted Lemorin.3249 But the jury deadlocked on the other defendants, and Judge Lenard declared a mistrial.3250 On the following day, the government transferred

Lemorin to an immigration detention center and initiated deportation proceedings

against him.3251 He was deported to Haiti on January 20, 2011; his wife and three

children continued to live in Miami Beach.3252

After 13 days of deliberation, a second jury deadlocked, on April 16, 2008, and Judge Lenard again declared a mistrial.3253 Jury selection in the third trial be-

 3241. Docket Sheet, United States v. Batiste, No. 1:06-cr-20373 (S.D. Fla. June 22, 2006)

[hereinafter S.D. Fla. Docket Sheet]; see Weaver, supra note 3239. Tim Reagan interviewed Judge Lenard for this report in the judge s chambers on October 8, 2009.

3242. Augustin, ___ F.3d at ___, 2011 WL 5141523 (p.14 of filed opinion); see Jay Weaver, Proving Liberty City 7 s Intentions Is Task for Feds, Miami Herald, Sept. 18, 2007, at 1A.

3243. Interview with Hon. Joan A. Lenard, Oct. 8, 2009.

3244. Joan A. Lenard, United States v. Batiste: Voir Dire Questions (Sept. 18, 2007) [hereinafter Voir Dire Questions]; Interview with Hon. Joan A. Lenard, Oct. 8, 2009; see United States v. Campa, 459 F.3d 1121 (11th Cir. 2006) (finding Judge Lenard s voir dire procedures in a previous

case to be a meticulous model); see also Transcript, Batiste, No. 1:06-cr-20373 (S.D. Fla. Feb. 3, 2009, filed Jan. 20, 2010) (phase one and phase two questions in third trial).

3245. See Goodnough, supra note 3224; Whoriskey, supra note 3229. 3246. See Weaver, supra note 3237. 3247. See id.

3248. See Kirk Semple, Defense Ends Its Arguments in Terrorism Trial in Miami, N.Y. Times, 

Dec. 1, 2007, at A12.

3249. United States v. Augustin, ___ F.3d ___, ___, 2011 WL 5141523 (11th Cir. 2011) (pp.4, 

14 of filed opinion); see Semple, supra note 3223; Weaver & Yanez, supra note 3223; Peter Whoriskey, Terrorism Case Ends in Mistrial; 1 Acquitted, Wash. Post, Dec. 14, 2007, at A3.

3250. Augustin, ___ F.3d at ___, 2011 WL 5141523 (p.14 of filed opinion); see Semple, supra

note 3223; Weaver & Yanez, supra note 3223; Whoriskey, supra note 3249. 3251. See Lemorin v. Attorney Gen., 416 F. App x 35 (11th Cir. 2011); Ex-Terror Suspect Is

Charged Anew, N.Y. Times, Feb. 7, 2008, at A27; Whoriskey, supra note 3223. 3252. See Ex-Terror Suspect May Be Deported, Wash. Post., Dec. 6, 2008, at A2; Andres Viglucci, Haitian Acquitted in Liberty City 7 Case Is Ordered Deported, Miami Herald, Dec. 6, 2008, at 5B; Jay Weaver & Trenton Daniel, Acquitted Haitian Defendant in Liberty City Seven Terror Case Is Deported, Miami Herald, Jan. 21, 2011, at 1B.

3253. Augustin, ___ F.3d at ___, 2011 WL 5141523 (p.14 of filed opinion); see Damien Cave, Mistrial for 6 in Sears Tower Terror Case, N.Y. Times, Apr. 17, 2008, at A21; Julienne Gage, 2nd 

Mistrial in Liberty City 7 Case, Wash. Post, Apr. 17, 2008, at A2.
National Security Case Management Studies (11/14/2011) 363

gan on January 27, 2009.3254 Selection proceedings were interrupted by briefing

on whether the government s using a peremptory challenge against a young Haitian-American man was improper.3255

Opening statements began on February 19.3256 Jury deliberations began on

April 27 and were interrupted when one juror took ill and Judge Lenard replaced

him with an alternate, which meant that deliberations had to begin again.3257 Then 

jurors reported that one of their members had refused to participate in deliberations.3258 After questioning all of the jurors, including the juror in question, and

with consent of the parties, Judge Lenard replaced this juror as well.3259 Ultimately, on May 12, the jury acquitted Herrera and convicted each of the others on at

least some of the pending counts.3260 The court of appeals affirmed the convictions.3261

On November 18 through 20, 2009, Judge Lenard sentenced Batiste to 131⁄2

years, Abraham to nine years and four and a half months, Phanor to eight years, Rothschild Augustine to seven years, and Burson Augustin to six years.3262

Challenge: Classified Evidence

No part of this case involved classified information.3263

 During deliberations, the jury decided to replace the foreperson. Transcript, United States v. Batiste, No. 1:06-cr-20373 (S.D. Fla. Apr. 4, 2008, filed Mar. 24, 2010).

3254. Augustin, ___ F.3d at ___, 2011 WL 5141523 (p.14 of filed opinion); see Jay Weaver, Jurors Vetted in Liberty City 6 Trial, Miami Herald, Jan. 28, 2009, at 3B.

3255. See Jay Weaver, Racial Concerns Halt Jury Selection in Third Liberty City Six Terrorism Trial, Miami Herald, Feb. 12, 2009, at 3B.

3256. See Carmen Gentile, U.S. Begins Third Ef ort to Convict 6 in Terror Case, N.Y. Times, Feb. 19, 2009, at A18.

3257. Augustin, ___ F.3d at ___, 2011 WL 5141523 (p.15 of filed opinion); Transcript, Batiste, No. 1:06-cr-20373 (S.D. Fla. May 4, 2009, filed Aug. 24, 2010); Interview with Hon. Joan

A. Lenard, Oct. 8, 2009; see Jay Weaver, Jury Deliberations in Terror-Conspiracy Retrial Delayed Again, Miami Herald, May 2, 2009, at 3B.

3258. Augustin, ___ F.3d at ___, 2011 WL 5141523 (pp.15, 48 of filed opinion); Interview

with Hon. Joan A. Lenard, Oct. 8, 2009; see Jay Weaver, Five Members of Liberty City Six Guilty

in Terror Plot, Miami Herald, May 13, 2009, at 11A; Weaver, supra note 3257; Jay Weaver, Ter- ror Trial s Outcome May Be Tainted, Miami Herald, May 17, 2009, at A1.

3259. Augustin, ___ F.3d at ___, 2011 WL 5141523 (pp.15, 48 54 of filed opinion); Interview

with Hon. Joan A. Lenard, Oct. 8, 2009; see Weaver, supra note 3258; Weaver, supra note 3257; 

Jay Weaver, Terror Trial s Outcome May Be Tainted, Miami Herald, May 17, 2009, at 1A.

3260. Augustin, ___ F.3d at ___, 2011 WL 5141523 (pp.2, 4, 15 of filed opinion); see Damen 

Cave & Carmen Gentile, Five Convicted in Plot to Blow Up Sears Tower as Part of Islamic Jihad, N.Y. Times, May 13, 2009, at A19; Weaver, supra note 3258. 3261. Augustin, ___ F.3d at ___, 2011 WL 5141523 (p.59 of filed opinion); see Jay Weaver, Convictions Upheld in Liberty City 7, Miami Herald, Nov. 2, 2011, at 6B. 

The court of appeals denied Augustin s motion to fire his attorney and proceed pro se on appeal. Docket Sheet, United States v. Augustin, No. 09-15985 (11th Cir. Nov. 27, 2009) (noting

Aug. 15, 2011, denial).

3262. S.D. Fla. Docket Sheet, supra note 3241. 3263. Interview with Hon. Joan A. Lenard, Oct. 8, 2009.
364 National Security Case Management Studies (11/14/2011)

Challenge: Jury Security

During 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.3264 Because of this and

other inappropriate disclosures, Judge Lenard used an anonymous jury for the

next two trials.3265 For the second trial, she also used partial sequestration, which

meant that jurors met at undisclosed locations and were shuttled to the courthouse.3266 The court provided them with lunch.3267

For the third trial, Judge Lenard did not implement sequestration procedures, but monitored the situation to see if implementing them would be advisable after

all.3268 Even partial sequestration is a burden on the jurors they have to gather

extra early and the drivers and the vans required to shuttle them are an added

expense.3269

 3264. Id.

3265. Voir Dire Questions, supra note 3244; Interview with Hon. Joan A. Lenard, Oct. 8, 2009.

3266. Interview with Hon. Joan A. Lenard, Oct. 8, 2009.

3267. Id.

3268. Id.

3269. Id.
National Security Case Management Studies (11/14/2011) 365

Fort Dix

United States v. Shnewer

(Robert B. Kugler, D.N.J.)

On May 7, 2007, the government filed criminal complaints in the U.S. District

Court for the District of New Jersey against six men, alleging a plot to attack Fort

Dix.3270 Authorities arrested them that evening.3271 The grand jury returned an indictment on June 5.3272 The court assigned the case to Judge Robert B. Kugler.3273

Mohamad Shnewer, a taxi driver and U.S. citizen born in Jordan, was the alleged coordinator.3274 Also charged were his three brothers-in-law: Dritan, Shain, and Eljvir Duka, roofers who were ethnically Albanian, born in Yugoslavia, and

who had been in the United States illegally since they were children.3275 The two

other defendants were Serdar Tatar, a legal resident born in Turkey who worked

as a 7-Eleven clerk, and Agron Abdullahu, a legal resident who was born in Yugoslavia, had Egyptian military training, and baked dough for a supermarket.3276

Fort Dix apparently was selected as a target because Tatar s family frequently delivered pizza there.3277

The group came to the government s attention in January 2006, when a video

store clerk reported that the men were having copied a video showing them shout-

 3270. Docket Sheet, United States v. Shnewer, No. 1:07-cr-459 (D.N.J. June 5, 2007) [hereinafter D.N.J. Docket Sheet]; see George Anastasia, Fort Dix Targeted in Jihad, U.S. Says, Phila. Inquirer, May 9, 2007, at A1; David Kocieniewski, 6 Men Arrested in a Terror Plot Against Ft. 

Dix, N.Y. Times, May 9, 2007, at A1; Dale Russakoff & Dan Eggen, Six Charged in Plot to Attack Fort Dix, Wash. Post, May 9, 2007, at A1; John Shiffman & Jan Hefler, Ordinary Lives, Radical Words, Phila. Inquirer, May 9, 2007, at A1; John Shiffman & Jennifer Moroz, Step by Step, Fort Dix Suspects Snared, Phila. Inquirer, May 11, 2007, at A1.

3271. D.N.J. Docket Sheet, supra note 3270; see George Anastasia & Troy Graham, Fort Dix

Suspects Indicted, Phila. Inquirer, June 6, 2007, at B1; Kocieniewski, supra note 3270; Russakoff

& Eggen, supra note 3270. 3272. D.N.J. Docket Sheet, supra note 3270; see Kareem Fahim, Charges Filed Against 6 Men 

in Plot to Attack Base, N.Y. Times, June 6, 2007, at B6.

3273. D.N.J. Docket Sheet, supra note 3270; see Kareem Fahim, U.S. Judge Promises Speedy 

Trial, and Leg Shackles, in Fort Dix Terror Case, N.Y. Times, June 15, 2007, at A21; Troy Graham, An Oct. Trial for Ft. Dix Six, Phila. Inquirer, June 15, 2007, at B1.

Tim Reagan interviewed Judge Kugler for this report in the judge s chambers on December 15, 2009.

3274. D.N.J. Docket Sheet, supra note 3270; see Kocieniewski, supra note 3270; Russakoff &

Eggen, supra note 3270; Shiffman & Hefler, supra note 3270. 3275. D.N.J. Docket Sheet, supra note 3270; see Kocieniewski, supra note 3270; Russakoff &

Eggen, supra note 3270; Shiffman & Hefler, supra note 3270. 3276. D.N.J. Docket Sheet, supra note 3270; see Kocieniewski, supra note 3270; Russakoff &

Eggen, supra note 3270; Shiffman & Hefler, supra note 3270. 3277. See Edward Colimore, Dismay at Cookstown Pizzeria, Phila. Inquirer, May 9, 2007, at

A4; Kocieniewski, supra note 3270; Russakoff & Eggen, supra note 3270; Shiffman & Hefler, supra note 3270.
366 National Security Case Management Studies (11/14/2011)

ing about jihad while training with assault weapons in the Poconos.3278 The government sent Mahmoud Omar, an informant, to investigate the group, and by

March the informant had befriended Shnewer.3279 Arrests immediately followed a

sham sale of firearms by Omar to Dritan and Shain Duka.3280 It was reported that

the government paid Omar more than $230,000.3281 A second informant was reportedly paid $150,000.3282

On October 31, 2007, Abdullahu pleaded guilty to a charge of providing firearms to illegal aliens, and Judge Kugler sentenced him to one year and eight

months on March 31, 2008.3283

On July 11, Tatar initiated a civil action challenging his and his co- defendants conditions of confinement.3284 Because they were detained in the

Philadelphia Detention Center,3285across the Delaware River from the Camden

courthouse where they were to be tried, Tatar filed his handwritten complaint in

the Eastern District of Pennsylvania.3286 The district court there transferred the

action to Judge Kugler in the District of New Jersey as related to the criminal

 3278. See Anastasia, supra note 3270; Alan Feuer, Practice in the Poconos, N.Y. Times, May

9, 2007, at B6; Troy Graham, Employee Who Played Key Role in Dix Case Moves On, Phila. Inquirer, Dec. 24, 2008, at A6; Kocieniewski, supra note 3270; Russakoff & Eggen, supra note 

3270. 3279. See Anastasia, supra note 3270; Feuer, supra note 3278; Informer Appears at Trial, but

His Recordings Talk, N.Y. Times, Nov. 2, 2008, NJ, at 1 [hereinafter Informer Appears]; Said, supra note 2620, at 722 24.

According to a 2010 newspaper article on Omar, He has an eviction notice for overdue rent, an application for welfare, a foundering export business, and an uncertain immigration status. George Anastasia, From Star FBI Witness to Ostracism, Loss, Phila. Inquirer, June 27, 2010, at

A1.

3280. See George Anastasia, Details Emerge in Terror Sting, Phila. Inquirer, May 10, 2007, at

A1; Fahim, supra note 3272; Informer Appears, supra note 3279; Shiffman & Hefler, supra note 

3270. 3281. See George Anastasia, Terror Trial Opens for Ft. Dix 5, Phila. Inquirer, Oct. 21, 2008, at 

A1; Informer Appears, supra note 3279; Paul von Zielbauer & Jon Hurdle, Five Are Convicted of

Conspiring to Attack Fort Dix, N.Y. Times, Dec. 23, 2008, at A18; see also Geoff Mulvihill, Defense Lawyers Question Informant in Terror Case, Wash. Post, Nov. 6, 2008, at A10 ( Omar, an

Egyptian who entered the U.S. illegally in the 1990s, is getting $1,500 a week plus free rent for his 

aid to the government. ). 3282. See Von Zielbauer & Hurdle, supra note 3281. 3283. D.N.J. Docket Sheet, supra note 3270; see Kareem Fahim, Gun Supplier Is Given 20- Month Sentence in Fort Dix Case, N.Y. Times, Apr. 1, 2008, at B3; Kareem Fahim, Tough Talk, and Hedging, in Taped Conversations of a Terrorism Defendant, N.Y. Times, Mar. 31, 2008, at

A21; Troy Graham, First of Fort Dix Six Pleads Guilty, Phila. Inquirer, Nov. 1, 2007, at B1; Troy

Graham, Man Who Supplied Guns in Alleged Fort Dix Terror Plot Sentenced to 20 Months, Phila. Inquirer, Apr. 1, 2008, at B1.

Abdullahu was released from prison on March 24, 2009. http://www.bop.gov (reg. no. 61286- 066).

3284. Docket Sheet, Tartar v. Levi, No. 2:08-cv-3270 (E.D. Pa. July 11, 2008).

3285. Opinion at 1, Tatar v. Levi, No. 1:08-cv-4422 (D.N.J. Sept. 20, 2010), available at 2010 

WL 3740610. 3286. Motion, Tartar, No. 2:08-cv-3270 (E.D. Pa. July 25, 2008).
National Security Case Management Studies (11/14/2011) 367

case.3287 Tatar filed a hand-written amended complaint on April 1, 2009,3288 and a 

typed amended complaint on January 4, 2011.3289 Answers followed on January

18.3290

Because of the news media s attention to this case, Judge Kugler and the court 

set up a public website where documents in the case file are posted.3291 This allowed access to the documents without going through PACER.3292 Evidence was

posted the moment it was admitted.3293 Each side loaded digitized exhibits on a

secure server in advance of moving for their admissibility.3294 Neither side had

access to the other side s exhibits on the server until they were admitted.3295

The court also posted proceeding transcripts on the server in a way that permitted free access to the proceedings while protecting the reporters proprietary

rights.3296 Transcript text rolled on the public website in continuous loops so that a 

viewer would see whatever few lines of text were displayed when the viewer

looked at the transcript and whatever lines of text scrolled by while the viewer

watched.3297

Jury selection for the trial against the five remaining defendants began on September 29, 2008.3298 Judge Kugler used a jury questionnaire.3299 For five days, approximately 150 prospective jurors reported to the courthouse each day to fill

out the questionnaire in the jury room, where Judge Kugler greeted them.3300 In 

the courtroom, Judge Kugler and the attorneys reviewed answered questionnaires.3301 Approximately two-thirds of the prospective jurors were disqualified

on the basis of the questionnaires alone.3302

During the following week, 15 prospective jurors reported in the morning and

15 reported in the afternoon for individual voir dire.3303 Judge Kugler observed

that once the questionnaires were filled out, there were few questions left to

 3287. Order, id. (Sept. 2, 2008).

3288. First Amended Complaint, Tatar, No. 1:08-cv-4422 (D.N.J. Apr. 10, 2009).

3289. Second Amended Complaint, id. (Jan. 4, 2011); see Danielle Camilli, Fort Dix Conspirator Sues Prison Officials, Bucks County Courier Times, Jan. 6, 2011, at 9.

3290. Docket Sheet, Tatar, No. 1:08-cv-4422 (D.N.J. Sept. 5, 2008).

3291. http://www.njd.uscourts.gov/FortDixTrial/index.html; Decorum Order, United States v. Shnewer, No. 1:07-cr-459 (D.N.J. July 13, 2007) [hereinafter Decorum Order]; Interview with

Hon. Robert B. Kugler, Dec. 15, 2009; see Graham, supra note 3273. 3292. Interview with Hon. Robert B. Kugler, Dec. 15, 2009.

3293. Id.; see Graham, supra note 3273. 3294. Interview with Hon. Robert B. Kugler, Dec. 15, 2009.

3295. Id.

3296. Id.

3297. Id.

3298. D.N.J. Docket Sheet, supra note 3270; see George Anastasia, Trial for Fort Dix Five

Begins Tomorrow, Phila. Inquirer, Sept. 28, 2008, at A1.

3299. Robert B. Kugler, United States v. Shnewer: Jury Questionnaire (Sept. 29, 2008); see

Anastasia, supra note 3298. 3300. Interview with Hon. Robert B. Kugler, Dec. 15, 2009.

3301. Id.

3302. Id.

3303. Id.
368 National Security Case Management Studies (11/14/2011)

ask.3304 Although it is unusual for attorneys to ask questions directly during voir

dire, Judge Kugler permitted it in this case.3305 Judge Kugler also granted the parties double the number of usual peremptory challenges.3306

Because of the trial s high profile, the court designated two overflow courtrooms: one for the news media and one for the rest of the public.3307 Because 

Judge Kugler permitted the media to use laptop computers in the main courtroom

and gave them wireless Internet access, they did not use their overflow courtroom.3308 Recording devices were not permitted in the courtroom, nor were published likenesses of the jurors, and the general public were not permitted to bring

in electronic equipment.3309 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.3310

Trial began on October 20, 2008, with opening arguments.3311 On December

22, after six days of deliberation, a jury convicted Shnewer, the Dukas, and Tatar

of conspiring to kill American soldiers.3312 On April 28 and 29, 2009, Judge Kugler sentenced Tatar to 33 years, and he sentenced the other defendants to life.3313

In part because of the cold December weather, Judge Kugler did not want

press conferences on the steps of the courthouse following the verdict, so the

news media were asked to gather in the jury assembly room.3314 The government

addressed the media for the first half hour, and defense counsel and families addressed the media thereafter.3315 The media could bring in cameras and recording

devices for this purpose.3316 Because it worked well, a similar procedure was used 

after sentencing.3317

 3304. Id.

3305. Id.

3306. Id.

3307. Decorum Order, supra note 3291; Interview with Hon. Robert B. Kugler, Dec. 15, 2009.

3308. Decorum Order, supra note 3291; Interview with Hon. Robert B. Kugler, Dec. 15, 2009; 

see Graham, supra note 3273. Because of the court s wireless connection to the Internet, journalists were able to blog in real

time from the courtroom. Interview with Hon. Robert B. Kugler, Dec. 15, 2009.

3309. Decorum Order, supra note 3291; Interview with Hon. Robert B. Kugler, Dec. 15, 2009.

3310. Interview with Hon. Robert B. Kugler, Dec. 15, 2009.

3311. See Anastasia, supra note 3281. 3312. D.N.J. Docket Sheet, supra note 3270; see William Branigin, 5 Men Convicted in Plot to 

Kill Soldiers at Fort Dix, Wash. Post, Dec. 23, 2008, at A2; Troy Graham, Fort Dix Five Guilty of

Conspiracy, Phila. Inquirer, Dec. 23, 2008, at A1; Von Zielbauer & Hurdle, supra note 3281. 3313. D.N.J. Docket Sheet, supra note 3270; see Troy Graham, Final 2 Ft. Dix Defendants

Sentenced, Phila. Inquirer, Apr. 30, 2009, at A1; Troy Graham, Three in Fort Dix Terrorist Plot

Sentenced to Life, Phila. Inquirer, Apr. 29, 2009, at A1; 3 Brothers Sentenced to Life for Holy War 

Plot at Ft. Dix, N.Y. Times, Apr. 29, 2009, at A19.

3314. Interview with Hon. Robert B. Kugler, Dec. 15, 2009.

3315. Id.

3316. Id.

3317. Id.
National Security Case Management Studies (11/14/2011) 369

In June and August of 2010, friends and relatives of the defendants organized

rallies in front of the courthouse protesting the convictions.3318

Appeals were heard on May 23, 2011.3319

Challenge: Classified Evidence

Attorneys representing defendants who went to trial needed security clearances, but they were not permitted to share classified information with their clients.3320 A 

secure room was set up in the courthouse for the attorneys to examine and work

on classified documents a separate safe was designated for each defendant.3321

Judge Kugler s staff law clerks, court reporters, courtroom deputies, and judicial

assistant all received security clearances, and Judge Kugler observed that the

clearance process went smoothly.3322

The Camden courthouse does not have a facility for storing sensitive compartmented information, but the defense attorneys did not have to examine such

information and the little that Judge Kugler examined was brought to him by a

classified information security officer and taken away the same day.3323

Challenge: FISA Evidence

Much of the case against the defendants was based on evidence obtained pursuant

to FISA warrants.3324 Much of the FISA evidence was declassified, but the affidavits supporting the FISA warrants generally were not.3325 Judge Kugler reviewed

FISA files to determine what was discoverable and to determine that the FISA

surveillance was properly supported.3326 FISA discoverability decisions are

 3318. See George Anastasia, Dix Appeal Spotlights Two Sides of Security, Phila. Inquirer, Sept. 5, 2010, at B1; Barbara Boyer, Protesters at City Court Back Fort Dix Five, Phila. Inquirer, June 2, 2010, at B1.

3319. http://www.ca3.uscourts.gov/oralargument/audio/09-2292etalUSAvDukaetalpart1.wma

(video recording of oral argument, part one); http://www.ca3.uscourts.gov/oralargument/audio/09- 2292etalUSAvDukaetalpart2.wma (part two); Docket Sheet, United States v. Tatar, No. 09-2302 

(3d Cir. May 5, 2009) (Tatar s appeal); Docket Sheet, United States v. Duka, No. 09-2301 (3d Cir. 

May 5, 2009) (Shain Duka s appeal); Docket Sheet, United States v. Duka, No. 09-2300 (3d Cir. May 5, 2009) (Dritan Duka s appeal); Docket Sheet, United States v. Shnewer, No. 09-2299 (3d

Cir. May 5, 2009) (Shnewer s appeal); Docket Sheet, United States v. Duka, No. 09-2292 (3d Cir. May 5, 2009) (Eljvir Duka s appeal); see Nathan Gorenstein, Fort Dix Five Argue for Second

Trials, Phila. Inquirer, May 24, 2011, at B1.

3320. Interview with Hon. Robert B. Kugler, Dec. 15, 2009.

3321. Id.

3322. Id.

3323. Id.

3324. FISA Evidence Order at 2, United States v. Shnewer, No. 1:07-cr-459 (D.N.J. July 13, 2007); Interview with Hon. Robert B. Kugler, Dec. 15, 2009; see George Anastasia, More Ft. Dix

Suspects Want to Suppress Evidence, Phila. Inquirer, June 21, 2008, at B4.

3325. FISA Evidence Order, supra note 3324, at 2 9; Interview with Hon. Robert B. Kugler, Dec. 15, 2009.

3326. FISA Evidence Order, supra note 3324, at 13 23; Interview with Hon. Robert B. Kugler, Dec. 15, 2009.
370 National Security Case Management Studies (11/14/2011)

somewhat hampered by the judge s not knowing, particularly early in the case, what the defenses might be.3327

Challenge: Classified Opinion

Judge Kugler s August 14, 2008, opinion on the validity of FISA evidence is classified.3328 A redacted opinion was filed publicly on December 29, 2009, after review by intelligence agencies.3329 Redactions appear to conceal what agents of Al- Qaeda were the targets of FISA surveillance resulting in evidence against the defendants.3330

Challenge: Jury Security

Judge Kugler used an anonymous jury.3331 Each juror met at one of two secret locations; deputy marshals shuttled the jurors to the courthouse.3332 During deliberations, the jurors were sequested at a nearby hotel.3333

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 contact the jurors directly.3334

Challenge: Court Security

Court security was enhanced for the trial.3335 Additional precautions were taken

during the two days of sentencing.3336 No other judge scheduled proceedings for

those days, and court staff were encouraged to work at home.3337 Because a jury 

was not present, there was a greater visible presence of security.3338

Challenge: Attorney Appointment

In February and March of 2010, nearly 10 months after their appeals were filed, each of the Dukas penned a five- or six-page handwritten pro se motion for new

appellate counsel, claiming insufficient contacts with counsel and counsels failure to keep them informed of their appeals progress.3339 The court denied their

 3327. Interview with Hon. Robert B. Kugler, Dec. 15, 2009.

3328. FISA Evidence Order, supra note 3324, at 1; Interview with Hon. Robert B. Kugler, Dec. 15, 2009.

3329. D.N.J. Docket Sheet, supra note 3270; Interview with Hon. Robert B. Kugler, Dec. 15, 2009.

3330. See FISA Evidence Order, supra note 3324. 3331. Decorum Order, supra note 3291; Interview with Hon. Robert B. Kugler, Dec. 15, 2009.

3332. Interview with Hon. Robert B. Kugler, Dec. 15, 2009.

3333. Decorum Order, supra note 3291; Interview with Hon. Robert B. Kugler, Dec. 15, 2009.

3334. Decorum Order, supra note 3291; Interview with Hon. Robert B. Kugler, Dec. 15, 2009.

3335. Interview with Hon. Robert B. Kugler, Dec. 15, 2009.

3336. Id.

3337. Id.

3338. Id.

3339. New Counsel Motion, United States v. Duka, No. 09-2301 (3d Cir. signed Mar. 4, 2010, filed Mar. 15, 2010) (Shain Duka s motion); New Counsel Motion, United States v. Duka, No. 09-
National Security Case Management Studies (11/14/2011) 371

requests, finding no extraordinary circumstances justifying departure from the

usual practice of trial counsel continuing on appeal.3340

Shnewer s attorney filed Shnewer s request for new counsel on Shnewer s behalf, stating that Shnewer wanted to argue on appeal ineffective assistance of trial

counsel.3341 The court denied this request as well.3342

 2300 (3d Cir. signed Feb. 19, 2010, filed Mar. 1, 2010) (Dritan Duka s motion); New Counsel

Motion, United States v. Duka, No. 09-2292 (3d Cir. signed Feb. 15, 2010, filed Feb. 22, 2010)

(Eljvir Duka s motion). 3340. Order, Duka, No. 09-2301 (3d Cir. Mar. 23, 2010) (Shain Duka s appeal); Order, Duka, No. 09-2300 (3d Cir. Mar. 23, 2010) (Dritan Duka s appeal); Order, Duka, No. 09-2292 (3d Cir. Mar. 23, 2010) (Eljvir Duka s appeal). 3341. New Counsel Motion, United States v. Shnewer, No. 09-2299 (3d Cir. Mar. 1, 2010).

3342. Order, id. (Mar. 23, 2010).
372 National Security Case Management Studies (11/14/2011)

Torture Flights

Mohamed v. Jeppesen DataPlan, Inc.

(James Ware, N.D. Cal.)

On May 30, 2007, the ACLU filed a civil action in the U.S. District Court for the

Northern District of California on behalf of five men who had experienced extraordinary rendition.3343 According to the complaint, extraordinary rendition involves the clandestine apprehension and transfer of persons suspected of involvement in terrorist activities to secret detention and interrogation facilities in

countries outside the United States, utilizing methods impermissible under United

States and international law. 3344 The court assigned the case to Judge James

Ware, who dismissed the action on state-secrets grounds.3345

Because the action was dismissed without the filing of an answer, the facts are 

substantially limited to the plaintiffs allegations.3346 Ahmed Agiza, an Egyptian

seeking asylum in Sweden, was captured by Swedish authorities, transferred to

American custody, and flown to Egypt, where he was subjected to extremely

harsh conditions of confinement and then sentenced to 15 years in Egyptian prison on a military court conviction.3347 Abou Elkassim Britel, a Moroccan-Italian, 

was detained in Pakistan, transferred to American custody, and flown to Morocco, 

where he was subjected to extremely harsh conditions of confinement and then

sentenced to 15 years in Moroccan prison.3348 Binyam Mohamed, an Ethiopian

and legal resident of the United Kingdom, was arrested in Pakistan, and then

transferred, in turn, to Morocco, Afghanistan, and Guantánamo Bay, where he

was subjected to extremely harsh conditions of confinement.3349 Bisher al-Rawi, 

an Iraqi and legal resident of the United Kingdom, was arrested in Gambia and

transferred, in turn, to Afghanistan and Guantánamo Bay, where he was subjected

to extremely harsh conditions of confinement.3350 Mohamed Farag Ahmad Bashmilah, a Yemeni, was arrested in Jordan, and transferred, in turn, to Afghanistan

 3343. Complaint, Mohamed v. Jeppesen Dataplan, Inc., No. 5:07-cv-2798 (N.D. Cal. May 30, 2007); see John Schwartz, Claims of Torture Abroad Face Test Monday in Court, N.Y. Times, Feb. 6, 2009, at A17.

3344. First Amended Complaint at 4, Mohamed, No. 5:07-cv-2798 (N.D. Cal. Aug. 1, 2007);

Mohamed v. Jeppesen Dataplan, Inc., 539 F. Supp. 2d 1128, 1130 (N.D. Cal. 2008); see generally

M. Cherif Bassiouni, International Extradition 289 94 (5th ed. 2007); Hafetz, supra note 502, at

51 59.

3345. Mohamed, 539 F. Supp. 2d 1128; see Schwartz, supra note 3343. Tim Reagan interviewed Judge Ware for this report in the judge s chambers on September 24, 2010.

3346. Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1073 (9th Cir. 2010); Mohamed, 539 F. Supp. 2d at 1131.

3347. Mohamed, 614 F.3d at 1074.

3348. Id.; Mohamed, 539 F. Supp. 2d at 1130 31.

3349. Mohamed, 614 F.3d at 1074; Mohamed, 539 F. Supp. 2d at 1130.

3350. Mohamed, 614 F.3d at 1074 75; Mohamed, 539 F. Supp. 2d at 1131 32; see Hafetz, supra note 502, at 46 47.
National Security Case Management Studies (11/14/2011) 373

and an unknown CIA black site prison, where he was subjected to extremely

harsh conditions of confinement.3351 Mohamed, al-Rawi, and Bashmilah were

subsequently released.3352

The defendant was Jeppesen DataPlan, Inc., a subsidiary of Boeing, with

headquarters in San Jose.3353 It allegedly provided flight planning and logistical

support services to the aircraft and crew on all of the flights transporting each of

the five plaintiffs among the various locations where they were detained and allegedly subjected to torture. 3354 There was evidence that Jeppesen knew what was

going on when it arranged flights described by one of its own officials as torture

flights. 3355

The government intervened to block the suit on state-secrets grounds.3356

Judge Ware determined, on February 13, 2008, that the very subject matter of

this case is a state secret and dismissed the action.3357

On April 28, 2009, a three-judge panel of the court of appeals reversed.3358 On 

rehearing, however, an en banc panel determined, by a vote of six to five, on September 8, 2010, that litigating the case to a judgment on the merits would present

an unacceptable risk of disclosing state secrets. 3359 The Supreme Court denied

certiorari.3360

Challenge: Classified Arguments

To support its motion for dismissal on state-secrets grounds, the government

submitted ex parte to Judge Ware a classified declaration by the head of the

 3351. Mohamed, 614 F.3d at 1075; Mohamed, 539 F. Supp. 2d at 1131.

3352. Mohamed, 614 F.3d at 1074 75; Mohamed, 539 F. Supp. 2d at 1131 32.

3353. Mohamed, 539 F. Supp. 2d at 1129; see Schwartz, supra note 3343. 3354. Mohamed, 614 F.3d at 1075.

3355. Id. at 1095 (Hawkins, dissenting).

3356. Mohamed, 539 F. Supp. 2d at 1130, 1132 33.

The government did not intervene in a contract dispute in New York s state court between

Sportsflight, a Long Island aircraft brokerage business, and Richmor Aviation, which provided a

plane for Sportsflight s government contract, apparently a contract for rendition transportation. See Richmor Aviation, Inc. v. Sportsflight Air, Inc., 82 A.D.3d 1423, 918 N.Y.S.2d 806 (2011);

Peter Finn & Julie Tate, Billing Dispute Reveals Details of CIA s Rendition Flights, Wash. Post, Sept. 1, 2011, at A1.

3357. Mohamed, 539 F. Supp. 2d at 1130, 1134 35.

3358. Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 943 (9th Cir. 2009) (opinion by Circuit 

Judge Michael Daly Hawkins, joined by Circuit Judges Mary M. Schroeder and William C. Canby, Jr.); see Carrie Johnson, Appeals Court Rejects State Secrets Claim, Revives Detainee Suit, Wash. Post, Apr. 29, 2009, at A3; Charlie Savage, Court Lets Ex-Detainees Proceed with Torture

Lawsuit, N.Y. Times, Apr. 29, 2009, at A15.

3359. Mohamed, 614 F.3d at 1083 (opinion by Circuit Judge Raymond C. Fisher, joined by

Chief Circuit Judge Alex Kozinski and Circuit Judges Richard C. Tallman, Johnnie B. Rawlinson, and Consuelo Maria Callahan); see id. at 1093 (concurring opinion by Circuit Judge Carlos Bea, finding that the case should be dismissed because its subject matter is a state secret); cf. id. at 

1093 131 (dissenting opinion by Circuit Judge Hawkins, joined by Circuit Judges Schroeder, Canby, Sidney R. Thomas, and Richard A. Paez); see Charlie Savage, Court Dismisses a Case

Asserting Torture by C.I.A., N.Y. Times, Sept. 9, 2010, at A1.

3360. Mohamed v. Jeppesen Dataplan, Inc., ___ U.S. ___, 131 S. Ct. 2442 (2010).
374 National Security Case Management Studies (11/14/2011)

CIA.3361 A classified information security officer brought the declaration to Judge

Ware s chambers.3362 Judge Ware reviewed the declaration privately in his office, with the blinds drawn, while the security officer waited outside.3363 The officer

said that she would take back the declaration and any notes the judge took, but the 

judge could get them back at any time.3364 Not wanting unknown persons to have

access to his notes, the judge did not take notes.3365

On appeal, the government submitted to the appellate judges ex parte classified briefs and declarations.3366 For each judge, a classified information security

officer brought the materials to the judge s chambers at the judge s convenience, waited for the judge to finish reviewing them, and took them back, along with any 

notes the judge took.3367 On the day of oral argument, the security officer again

provided each judge with that judge s set of materials.3368

Classified information security officers received advance notice that the appeal would be reheard en banc, but they do not share confidential information of

this type with the attorneys representing the government.3369

 3361. Mohamed, 614 F.3d at 1076; Mohamed, 539 F. Supp. 2d at 1130, 1132; Interview with

Hon. James Ware, Sept. 24, 2010.

3362. Interview with Hon. James Ware, Sept. 24, 2010.

3363. Id.

3364. Id.

3365. Id.

3366. Mohamed, 614 F.3d at 1084 n.6; Docket Sheet, Mohamed v. Jeppesen Dataplan, Inc., No. 08-15693 (9th Cir. Mar. 31, 2008) (noting lodging of classified materials with the three-judge 

panel on Aug. 27, 2008, and with the en banc panel on Nov. 13, 2009).

3367. Interview with Dep t of Justice Litig. Sec. Group Staff, July 20, 2011. 3368. Id.

3369. Id.
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

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Judge Thomas F. Hogan, Director of the Administrative Office of the U.S. Courts

Director

Judge Jeremy D. Fogel

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John S. Cooke

About the Federal Judicial Center

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