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meR.1S.20@3 1:32am muh OB

unequivocally rejected

While preservin

court-ordered deposi

saa

“ae


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iguue @oo

we a seamless “script” authored By the prosecution.

TI. Discussion

The issue presented in this case is one of first impression.

CIPA broadly defines classified information as “any information
er material that has béen determined by the United States
Government,.. to require protection against unauthorized
disclosure for reasons of national security,” 18 U.S.C. App. 3
$ 1. The paradigm context in which CIPA issues have been :

litigated in criminal cases involves 2 defendant’s attempt to

introduce a classified document into evidence. To perform 4
Section 6(c) analysis in that context, a-court compares a
proposed written substitution te a-static,” fixed classified

| document. Hovwever,. in.this.case,.becauséthe-United States -has

classified enything and everythin

the Court must

evaluate the adequacy of the Government’s proposed written

an 2lternative. to his videotaped deposition testimony.

Although any substitute for live or videotaped trial

testimony deprives the finders ef fact: of an opportunity to

observe the witness’ demeanor when 4: séseing his credibility, see

__Basviand =. craig, 497 U.S. 836, 846.(1990), the Court does not

s



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B. The 5 v_is Incomplete

A criminal trial is expected to be egt for the truth.
See Williams v. Florida, 399 U.S. 78, 80 (1970). in pursuit
of that end, it is the trial court’s responsibility to prevent
the parties from misleading or deceiving jury by

ented evidence.

intentionally presenting incomplete ox:
(Reply at 17 siting Uni 84 F.3d 652, 6596

(4=* Cir. 1996) and Unite ‘B13 F.2d 571, 576

(274, Cir, 1987)).

Standby defense counsel correctl that the Proposed

Specifically,

evld testify, if asked,

he defense must 2ccept

tovided to standb

defense wou. certainly follow up wi
‘basis for the witness’ -ass


2070172014 20:48 FAX

in TLON SEC.

examination is reliable. See Dutton v. 400 U.S. 74, 88
(1970). In its role as gatekeeper, the trial court hes the

discretion to determine whether particular evidence possesses

adequate guarantees of trustworthiness to justify its

presentation to the jury. See Dnited States v. McCall, 740 F.2d.
1331, 1339 (4 Cir. 1984); ‘United States vi ‘Horn,
530, 536 (D. Md. 2002); see also Fed. Ro Evid. 104(a).

185 F. Supp.2d

The Proposed Substitution must be’ jected because it does

not contain indicia of reliability sufficient to justify its use

as evidence at trial. To the Court’



LITIGATION sec —“aioteens

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of @ foreign. magistrate, under oath and recorded verbatim by a
on WECM ESC ENOG KERNEL it crete ee ee ee eee eee ee

; videotaped deposition

find that a written sua ry iS -:- never be

an adequate substitute for live testimony. If there are
sufficient compelling reasons for the substitution and the
substitution has indicia of reliability ®@quivalent to live
testimony, a substitution may be acceptable.” in this, case,
however, the Court finds that because of its unreliability,
incompleteness and inaccuracy, the Government's Propesed
Substitution will not “provide the defendant with substantially

the same ability to make his defense as:would” the court-ordered,

A. The Summary is Not Reliable

Evidence is admissible if it“bea AHGi@ia of réliability

or guarantees of trustworthiness suffitieHt to afford’ the trier

of fact a basis for evaltating-its truth. See United Stetes-v.
haw, 63 F.3d 1243, 1253..44.Cir 1995}3..United Stetes.v.

Murphy, 696 F.2d 282, 286 A4@** Cir, 1982). Traditionally,

witness testimony given under oath and subject to cross-

_’ The Government cites to United'states v. Scarfo, 180 PF. ~
Supp-2d 572 (D. N.J. 2001) and United St tes vw. Salim, 855 F.2d
944 (2° Cir. 1988) as instances in which courts permitted
substitutes for live witness testim . However, in both cases,
the “substitutes” possessed traditichal indicia of reliability.
In Scarfs, because the FBI agent’s affidavit was under oath, it
provided the defendant with sufficient, reliable information with
which to litigate a motion to suppress. In Salim, the Second
Circuit affirmed the use of a transeript of a Fed, R. Crim P. 15
deposition of a prosecution witness taken abroad in the presence

6



oy tees BETIGATION sec.

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ee ‘ LITIGATION See“ enti ar

eo
Ny way PIcen

- : »
20s . © BATE ss lis|2co=

IN THE UNITED STATES DISTRICT COURT fb tl €
FOR THE ZASTERN DISTRICT OF VIRGINIA
Alexandria Divisicn MAY 15 rb tc}

UNITED STATES OF AMERICA,

CLERK, U.S. DISTRICT COURT
ALEXANOAIA, VIRGINIA

Criminal No. 01~455=4 TRedoctad

UNDER SEAL

)

)

v. )
)

2ACARIAS MOUSSAOUL, )
a/k/a “Shagil” )
a/k/a “Abu Khalid )

al Sahrawi,” )

)

i]

Defendant.

MEMORANDUM OPINION
re Backaround
On April 14,...2003....pursuant. to.Section.6(c) of the

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

| the United States Court of Appeals for the Fourth Circuit
remanded this case to afford the Government “an opportunity to
propose substitutions” fer the videotaped Fed. R. Crim. BP. 15

deposition [I o-ccrea by this Court on January

31, 2003.* The Fourth Cireuit specifically directed this Court

Se

: * As explained.in our Memorandum Opinion ofMarch.i0,; 2003,

i in the absence of any alternative Proposals from the United ‘

j . States, the Court concluded that a Fed. R. Crim. P. i5 deposition
‘fairly balanced the United States’ national

‘security concerns against the defendant‘s Fifth and Sixth

Amendment rights. At the same time, the Court denied defense

requests for access to and to compel the trial appearances

In Match, 2003, Moussaoui filed a motion requesting similar
access to Khalid Sheikh Mohammed: (a/k/a “Mukhtar”) « & more
recently captured high-ranking al Qaeda operative and purported:
“mastermind” of the September 11 plot. Although the Court has °
worst ao -Stayed--resoelution..o£. the. defense _motion_pending the. outeome of
~pthe United States’ appeal of our Order of January 31 2003,



~-o..-—dncluge,

tgvio @o1

ated in the Proposed

Substitution. “s complaint, the
Goverrimént has generally offered’ to “c er” including any
additional statements’ the Court finds té admissible and
material to the defense” in van amended”, tution.¥ (Reply at
30). ,

ry is inaccurate and

Further, as mary is-merely-an

erganized distillation of. ed in the.classified

summaries produced to sta’ , and not a

compilation

Standby counsel als

incorporated inferences in the Propose: stitution which are’

not reflected in the classified. summar. | themselves. For
example, paragraph 7 of i S ion ‘reads,
“although the Government: file ndum to Its Proposed

Substitution , 2003, it did not


the statements as

inferences about missing statements, such ‘the ones identified

from him, and would be able “to present : eSponses to these
critical questions as evidence at trial
argument. In our view, thé difference bi an arguing an
inference and eliciting an-explicit stat
significant, and graphically. illustrate @ inadequacy of the

Proposed Substitution as.4 ‘replacement.

testimony.

The Court also finds.

rit in the

the Proposed Substitution omits some dtery information

reflected in the classified: summaries: e--exemple,



"Mle

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reason that the Court cannot determine wh:

reports upon which it is based accurately

advised the Court that

Government has

“the Court is only competent to @etermine whether the
Government’s Proposed Substitution ey accurate summary+of the
classified summaries on which it is

based. | - :

‘pursuant to Section 4 of CIP :
Government’s request to:disclose to ndby counsel only the |
specific answers to the questions p eby the Court on May 7,

2003, and not the explanation offeréd@inithe ex parte
Declaration.

he: Court granted the



05/19/03 MON 10:31 FAX 202 305 7372 —

substitute rox I «== testimony will carry the
appropriate weight or import with the jury. fs

Standby defense counsel object to the Proposed Supstitution
‘arguing that it does not provide the defendant with
“substantially the same ability to make his defense” as would the
: deposition ordered by this Court. Specifically, they claim that
the proposed substitution is inadmissible, unreliable hearsay.‘

In addition, standby counsel contend that the Governmment’s

proposal is too narrow in that it is only an indicator of what

might say if called as a witness in this case,

| and fails to reflect-certein |

exculpatory information included in the classified summaries. |
Standby counsel further argue that the Government's proposal is
too broad in that it incorporates inculpatory statements the

defense vould not elicit on direct exam, and deceivingly

- §According: to standby counsel, not-only does the’
Government‘ s proposal deprive the. defense of the opportunity to
test the truthfulness of the inculpatory statements in wiolation
of the Confrontation Clause of the Sixth Amendment, but it alse
precludes the jury from observing the demeanor and evaluating the

seo credtibttity of this critical witness > Soreness se
. 4


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wie ‘gu

yeR.15.2003  1:31Ar Me a

”

as an alternative to the Pr that the |

Government stipulate to or. judicial notice of
i

uw

a defendant who is

deprived of the opportuni: , din . in classified

the public disclosure of”: formation while

unt an effective

be a complete @isterti

completeness to presen’ table substijtution

Despite our conce: ity of the statements



a

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the same ability to makel hi

deposition ordered on Jamuar:

The Court Security Dff
this Memorandum Opinion te

standby defense counsel;

Memorandum Opinion for an expedited classi!

appropriate versions can
placed in the public recor

“Entered this 15TM day
t

Alexandria, Virginia

igure

NU. BSL rb

e videotaped

forward copies of
ed States, and
id to submit this

ion review so that

Oo sa defendant and

fay, 2003.
/S/

Leonie M. Brinkema
United States District Judge


wuus lac

deposition testimony, the Government has offered a

document

which attempt to distill the essence of dozens

of classified summaries | CE

Moussaoui vehemently opposes the summary as a substitute for

déposition testimony.

In particular, the

defendant argues that the Proposed Substitution is a complete

Moussaoui .reitezates that

a critical witness in. this case because he can.establish.that the

defendant was not part of the September 11 plot- FY
| § WPinally}the defendant contends that no “paper”

“The Government proposes that the Substitution be introduced
at trial with the following preamble: “[i]£ called as a witness
at trial, _who is otherwise unaveilable, would
testify...” oo . -

‘ seyond BEM personal knowledge that Moussaoui was

not slated to participate in the September 11 attacks, the
defendant argues that, at trial]

3



|

NEA AGEALAIN SEU,

10/01/2014 20:46 FAX. : te
ecoreee as . woes oc

to determine “whether the propesed substitutions, if any, ‘will

provide the defendant with substantially the same ability to make

nis defense es would’” the videotaped deposition.”

On April 24, 2003, the United States filed its Proposed

substitution and accompanying Submission under seal with the

court Security Officer.® As a substitution [a

2 although the statute provides that the Government triggers
the Section 6(c) analysis by filing ‘a motion for léave ‘to offer 2
substitution for the classified information authorized to be
disclosed, in this case, the United States has not iiade such 2

zl request, and has consistently mainteined that the issue of
substitutions should not be reached claiming that “thewitness ais
beyond the Court's jurisdiction.” (Submission at 1: Reply at 1-
2)- :

3? Although CIPA contemplates that any substitution for
classified information be made public, beth the United States’
Proposed Substitution and accompanyin' Submission have been
classified!

However; in--bts
Submission, the Government stated that “when and if a final
version of the proposed substitution(s] is settIéd upon, ‘that
document will be declassifie . for use at trial” but would
remain classified until then. The United States did not
Ainitially disclose its Proposed Substitution to the pro se . -
defendant; but, instead, stated that “it would permit the
defendant, to review the final substitution[s] as a limited
authorized disclosure of classified material so that [he] can
prepare for trial.” (Submission at 1-2). ‘Finding that proposal
to be unacceptable in light of the Fourth Circuit’s expl icit
instruction that both “the defendant end standby counsel... be
given an opportunity te respond to any proposed substitutions,”
this Court ordered the United States to disclose a copy ef its
Proposed Substitution to the pro se defendant. {Order of April
ao 345-2003 }5——Thre-Government--promptiy—esmplied,——————

2



testimony.

II.

. % Incorporate:
to the Government’
including but not

“reasons stated in our Order ©:
standby counsel’s proposal is n

vernment’ 3 inclusion of

s inconsistent with its
i

S-to do the 's

e,** and its

clude inferences in any

proposed trial

responsibility under CIPA,

nsel’s proposed alternative
ion were infarences,

For the —
3, 2003, the adequacy of
before this Court.



t n a

"A vavat20r4 20:50 FAX

Ne kere a ee

reports, to resolve standby counsel's sp ‘objection ito the

Proposed Substitution as a “script” auth

attempt to elicit on dire

a witness in this case.

substitute ror positiol Y, standby counsel

complied with the Court’ y: list

ion they would

attempt to elicit from thé-witness 4! hn the United States

has responded to the Co ex-designating a
in standby counsel’s de: ss

that

Iv.

The inherent unrel

$e. documents ini
d Objection.

1 Standby counsel:
footnote 12 on page 16