1 Standby counsel have sought similar relief in their Motion

for Access by Defendant to Classified and Sensitive Discovery and

for Relief from Special Administrative Measures Concerning

Confinement (Docket #165) and their Motion in Support of

Defendant’s Requests for Access to Evidence, Access to Secure

Website and for a Continuance (Docket #396). 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

UNITED STATES OF AMERICA )

)

v. ) Criminal No. 01-455-A

)

ZACARIAS MOUSSAOUI )

a/k/a “Shaqil,” )

a/k/a “Abu Khalid )

al Sahrawi,” )

)

Defendant. )

ORDER

The defendant, pro se, has filed a Motion to Get Access to

So Called Secret Evidence (Docket #385).1 He repeats this

request in pleadings docketed as #s 386, 395 and 446. The United

States opposes this motion arguing that significant security

concerns justify denying the defendant access to classified

material in this case, and that the defendant’s Fifth and Sixth

Amendment rights are not violated by denying him access to such

information. Further, the United States contends that the

defendant understood that he would not have access to classified

material when he exercised his Faretta right to represent

himself. 

The Court’s January 22, 2002 Protective Order prohibits the

defendant from accessing classified information unless he first
2

obtains the necessary security clearance from the Department of

Justice, or other governmental or Court approval. (Protective

Order at ¶ 11). The Court may not grant the defendant access to

classified discovery unless the Court is satisfied that there is

a “need to know” the particular information. (Id.)

Unlike the usual case involving classified discovery in

which a defendant charged with espionage has previously possessed

the classified information at issue, Mr. Moussaoui is charged

with conspiracy to commit acts of terrorism transcending national

boundaries among other offenses. 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. Therefore,

we find that the United States’ interest in protecting its

national security information outweighs the defendant’s desire to

review the classified discovery. We further conclude that Mr.

Moussaoui’s Fifth and Sixth Amendment rights are adequately

protected by standby counsel’s review of the classified discovery

and their participation in any proceedings held pursuant to the

Classified Information Procedures Act (“CIPA”), 18 U.S.C. App. 3,

even though the defendant will be excluded from these

proceedings. See United States v. Bin Laden, 2001 U.S. Dist.
3

LEXIS 719 (S.D.N.Y. Jan. 25, 2001). Lastly, the United States

has declassified or is in the process of declassifying a large

number of the documents identified in standby counsel’s

“designation.” Presumably, the defendant has had or will have

access to the declassified discovery so long as it is not subject

to a separate protective order. Accordingly, the defendant’s

repetitive motions for access to classified discovery (Docket #s

385, 386, 395 and 446) and standby counsel’s similar requests

(Docket #s 165 and 396) are DENIED; and it is hereby

ORDERED that the defendant be excluded from any CIPA

proceedings.

The Clerk is directed to forward copies of this Order to the

defendant, pro se; counsel for the United States; standby defense

counsel; and the Court Security Officer.

Entered this 23rd day of August, 2002.

/s/

_________________________________

Leonie M. Brinkema

United States District Judge

Alexandria, Virginia