1 In this motion, standby counsel also seek to unseal

pleadings regarding a separate issue, which we will address at a

later time.

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

Before the Court is standby defense counsel’s Motion to

Unseal (Docket #500) in which they seek an order unsealing all

correspondence, pleadings and orders regarding the United States’

inadvertent production of classified materials to the defendant.1

Standby counsel argue that these letters, pleadings and orders

have been maintained under seal solely to shield the United

States from embarrassment. In response, the United States argues

that the correspondence, pleadings and orders should remain under

seal to protect the information contained in the materials

mistakenly produced to the defendant.

The classified materials have been retrieved and are now

properly classified. Moreover, the United States actually

disclosed the classified nature of the materials erroneously

produced to the defendant in its Response to Standby Counsel’s
2 Standby counsel’s Motion to Unseal and the United States’

Response were both filed under seal and sent to the pro se

defendant.

3 Although the defendant was aware that the United States had

inadvertently produced certain materials to him, Mr. Moussaoui

had not been explicitly informed that he had been in possession

of classified information until he received the Government’s

Response to Standby Counsel’s Motion to Unseal. 

4 See supra footnote 1.

2

Motion to Unseal.2 Therefore, the original justification for

maintaining under seal the correspondence, pleadings and orders

regarding this issue no longer has merit.3 Lastly, according to

news reports by ABC and CNN dated September 6 and 7, 2002,

Department of Justice sources leaked to the media information

about the inadvertent production of classified materials to the

defendant and efforts to retrieve the same. For these reasons,

and in light of the strong public policy favoring open records in

criminal proceedings, we find no legitimate reason to maintain

under seal the correspondence, pleadings and orders regarding the

inadvertent production of classified material to the defendant. 

Accordingly, standby counsel’s Motion to Unseal (Docket #500) is

GRANTED in part;4 and it is hereby

ORDERED that the orders docketed as #s 452, 462, 479, 483,

485 and 487 and the correspondence to which the orders respond be

and are unsealed subject to necessary redactions to protect

information which might identify the particular classified
5 The correspondence which led to the issuance of the various

orders is attached to this Order. Pursuant to our Order of

August 29, 2002, the defendant’s pro se Motion to Expulse [sic]

the United States from the Arabian Discovery Cave (Docket #458)

will not be unsealed.

3

materials at issue.5 Because standby counsel’s Motion to Unseal

addresses another issue not yet resolved, the Motion to Unseal

(without attachments)(Docket #500), the Government’s Response

(Docket #526), and standby counsel’s Reply (without

attachments)(Docket #534) are to be unsealed in redacted form.

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 26th day of September, 2002.

/s/

_________________________________

Leonie M. Brinkema

United States District Judge

Alexandria, Virginia
Under Seal 

Hon. Leonie M. Brinkema 

United States District Judge 

401 Courthouse Square 

Alexandria, VA 22314 

u.s. Department 

United States Atto 

Eastern District 0 

2100 Jamieson Avenue 

Alexandria. Virginia 22314 

August 22, 2002 

Re: U.S. v. Zacarias Moussaoui; Crim. No. 01-455-A 

Dear Judge Brinkema: 

. U S DISTRICT COURT 

ALExANDRIA VIRGINIA 

We write seeking the Court':;· assistance in securing the return of two. documents that 

contain classified infonnation that were inadvertently produced to Mr. Moussaoui in discovery in 

this case. 

These Clocmnlents 

were inadvertently produced as electronic fonn, to defense 

counsel cind Mr. Moussaoui on June 12, 2 and June 7, 200.. . 

On July 29, 2002, in accordance with the s order on hard-copy 

discovery, a paper copy of these doeuments was delivered to Mr. Moussaoui . 

. Accordingly, we.:want to replace the unclassified version of the two documents given to 

standby counsel with a classified version. They have agreed to this exchange. In addition, we 

want to have a wa1led-offFBI team enter Mr. Moussaoui's cell at the Alexandria Detention 

Center to retrieve the hard copy ofthe documents and the disks on which they were originally 

produced (and replace those disks with·ones that do not contain the documents) .. 

A proposed order is enclosed with this letter. 

REDACTED 
Hon. Leonie M. Brinkema 

August 22, 2002 

Page 2 

We note that we have not served a copy of this letter or the proposed order on the 

defendant. We have served a copy on standby counsel. 

cc: Frank W. Dunham, Jr. 

Alan H. Yamamoto 

Edward B. MacMahon, Jr. 

By: 

Respectfully submitted, 

Paul J. McNulty 

.. United States Attorney 

/6'/ 

Robert A. Sp~cer Kenneth M. Karas .. 

David J. Novak 

Assistant U.S. Attorneys 
CHAMBERS OF 

LEONIE M. BRINKEMA 

DISTRICT JUDGE 

UNDER SEAL 

EASTERN DISTRICT OF VIRGINIA 

40fCOURTHOUSESQUARE 

Al.EXANDRIA. VIRGINIA :423f4-5799 

August 23,2002 

Robert A. Spencer, Esq. 

Assistant United States Attorney 

Eastern District of Virginia 

2100 Jamieson Avenue 

Alexandria, Virginia 22314 

Re: United States v. Zacarias Moussaoui, Criminal No. 01-455-A 

Dear Mr. Spencer: 

TEl.EPHONE (703) :499 - 2U 6 

FACSIMIl.E (703) 299-2238 

I am in receipt of your letter of August 22, 2002 in which you request the Court's 

assistance in retrieving two classified documents inadvertently produced to Mr. Moussaoui in 

hard copy and on CD ROM. Specitically, you ask that I issue an order authorizing a walled-off 

FBI team to enter Mr. Moussaoui's cell at the Alexandria City Adult Detention Center to replace 

the classified documents with unclassified versions of the same. Your request is denied for two 

reasons. 

First, it is unclear from your letter whether the documents at issue were classified when 

produced or were classified after thi~ fact. If the documents are so sensitive, I do not understand 

why they were not initially classified. Moreover, it is unlikely that the defendant would 

appreciate the sensitive nature of the documents if they have np classification on them. 

·Second, given the massive amounts of material produced in this case, there is a 

significant danger that 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. If you remain concerned that Mr. Moussaoui's 

continued pO$session of these documents could cause serious harm to the national security, I will 

consider issuing an order directing him to return the documents forthwith. Such an order may be 

served on the defendant by a deputy Marshal who would collect the materials from him. You 

may find in the final analysis that less harm will be done by not drawing the defendant's attention 

~o these dQ~uments. 

Sincflt}ely, 

/tf/ 

Lttonie M. Brinkem,a ., .... 

Wnited States DisbfIct Judge 
Page 2 of 2 

cc: Frank Dunham, Esq. (standby counsel) 

Alan Yamamoto, Esq. (standby counsel) 

Edward MacMahon, Jr., Esq. (standby counsel) 

Christine Gunning (Court Security Officer) 
Under Seal 

Hon. Leonie M. Brinkema 

United States District Judge 

401 Courthouse Square 

Alexandria, VA 22314 

u.s. Department of Justice 

United States Atto 

Eastern District of 

2100 Jamieson Avenue 

Ale:candria. Virginia 22314 

August 29,2002 

r-----------------~ 

Re: U.S. v. Zacarias Moussaoui; Crim. No. 01-455-A 

Dear Judge Brinkema: 

I write, respectfully, once again in our effort to recover seven documents that were 

mistakenly produced as unclassified FBI 302s but which should have been classified. I have 

been informed that as of 5 :00 p.m. on August 28, despite their hard work and valiant effort, the 

Marshal's Service could not find two of the seven documents. Unfortunately, one of the 

remaining two documents is the most critical of the seven (for reasons I can explain in a more 

secure forum). Accordingly, I write to request that the Court pennit the United States to repossess the hard copies of the 302s produced to the defendant and to then re-print these 302s 

without the two unaccounted for 302s. 

I realize that the Court willli.kely greet this request with r,eluctance, but I believe that 

several additional facts support the request. 

First, one of the Deputy Marshals told me that it appeared that the defendant had not yet 

begun to review the hard copy 302s that have been produced to him, and a Deputy Marshal told 

me that, yesterday, the defendanttold him that they could take the documents as long as they left 

the videot.apes. Therefore, allowing the United States to re-possess the 302s and re-print them 

will permit the defendant access to his discovery room and still permit the United States to 

protect the source information contained in the 302s at issue. -In addition, as far as I know, the 

defendant will·not be deprived of any work product if we take back and re-produce the 302s. We 

will, of course, strive to te-print the 302s as quickly as possible. 

Second, the Court yesterday ordered that the defendant be granted access to the secure 

website set up by standby counsel. Thus, it seems likely that much of the defendant's review of 

documeIits will again be done· electronically instead of by reviewing the hard copy provided by, 

the government. 
Hon. Leonie M. Brinkema 

August 29, 2002 

Page 2 

Third, it appears from an ongoing review of 302s produced as unclassified documents to . 

the defendant in this case that there aLre additional 302s that may contain classified infonnation. 

Thus, permitting us to take back and reprint the 302s we have provided to the defendant would 

allow the United States to correct any such additional mistakes in under-classification by 

classifying or redacting particular documents. 1 

Accordingly, we respectfully request that the Court issue an order permitting the United 

States to re-take possession of the 302s produced in hard copy to the defendant and to re-produce 

such 302s without the unaccounted for two 302s listed in the Court's August 27th Order. 

I note again that I intend to serve a copy of this letter on standby counsel but not on the 

defendant. Also, I enclose for the Court's consideration a copy of the two documents that have 

not been recovered. 

cc: 

By: 

Hon. John Clark (w/o documents) 

Respectfully submitted, 

Paul J. McNulty 

United States Attorney 

/cf/ 

Robert A. Spen~er 

Assistant U.S. Attorney 

Frank W. Dunham, Jr. (w/o documents) 

Alan H. Yamamoto (w/o documents) 

Edward B. MacMahon, Jr. (w/o documents)" 

Christine E. Gunning (w/o documents) 

REDACTED 

Such 

information could be redacted without compromising the value of the discpvery information 

produced to the defense. Also, we c:ould, of course, provide a list of any 'such proposed 

redactions or re-classifications before doing so. 
u.s. Department of Justice 

Under Seal 

Hon. Leonie M. Brinkema 

United States District Judge 

401 Courthouse Square 

Alexandria, VA 22314 

United States Attorney 

Eastern District of Vi 

2100 Jamieson Avenue 

Alexandria. Virginia 22314 

S~tember 5,2002 

Re: U.S. v. Zacarias Moussaoui; Crim. No. 01-455-A 

Dear Judge Brinkema: 

ClER~ U.S. DISTRICT COURT 

ALt1.ANORIA VIRGINIA 

I write again regarding the issue of recovering information that was produced to 

defendant Moussaoui as unclassified FBI reports but which should have been classified. I 

understand that the Court is meeting with Court Security Officers on this issue, and I take the 

liberty of submitting this letter to ask the Court to impose a temporary freeze until the situation is 

more formally resolved. . 

.-

In short, we ask that the Court take steps to prevent defendant Moussaoui from having 

access to the discovery material at issue until the Court resolves the question whether the 

government can recover such infomlation. We appreciate the opportunity to present legal 

authority to the Court showing that the Court has the discretioIlJ to recover inadvertently 

produced national security information, and we are hurrying to provide a brief on that subject. In 

the meantime, we ask that the defendant not be given access to the room that contains the 

discovery materials. 

The defendant now has access to national security u· UOltlIlliUCm 

the discovery by the defendant of this .u.' . .u.VJL.u.J.':I..J.\.'J.~ 

The access to this 

material by the defendant is a situation that, even if of our own making, is improper and 

unacceptable. Si~ply put, it is illegal and dangerous for the defendant to possess the material, 

'Uld there must be some way that we can correct the situation. 

Accordingly, we respectfully submit that it is a reasonable request that the defeIiclant not 

be allowed access to the material at issue during the time the Court considers our request and our 

brief on the issue. We respectfully request that the Court or~er the United States Marshal.to 

prevent the defendant from having access to the discovery. materials until the Court has ruled 
finally on the issue. 

I note again that I intend to serve a copy of this letter on standby counsel but not on the 

defendant. 

cc: Hon. John Clark 

Frank W. Dunham, Jr. 

Alan H. Yamamoto 

Edward B. MacMahon, Jr. 

Christine E. Gunning 

By: 

Respectfully submitted, 

Paul J. McNulty 

United States Attorney 

/6'/ 

Robert A. Spencer 

Assistant U.S. Attorney 

I' " 
u.s. Department of Justice 

-, United States Attorney .. - ...... 

Eastern DiStriC~~;~~~~~:' ,-;";.!4.,ij--;.;.;;. .. W:-~-~l\ 

Under Seal 

Hon. Leonie M. Brinkema 

United States District Judge 

401 Courthouse Square 

Alexandria, VA 22314 

2100 Jamieson Avenue 

Re: U.S. v. Zacarias Moussaoui; Crim. No. 01-455-A 

Dear Judge Brinkema: 

We respectfully request that the Court order the documents set forth on the attached list 

(identified by Bates number and FBI serial number) removed from the defendant and returned to 

the United States. 

We believe that the Court has ample authority to effect the return of classified documents 

that were inadvertently produced to the defendant as unclassified. First, the documents (FBI 

302s created by government employees) are the property of the United States and the Court has 

authority to order that the property be returned to the United States. See United States v. Rezag, 

156 F.R.D. 514, 528 (D. D.C. 1994), opinion vacated in part on other grounds on 

reconsideration, 899 F.Supp. 697 (D.D.C. 1995) (court ordered an unredacted original document 

that was inadvertently produced in a criminal terrorism case reiumed to the government, citing 

government's assertion that the document was government property). It is well settled that 

classified information is the property of the United States. See United States v. Fowler, 932 F.2d 

306,309-10 (4th Cir. 1991) (copies of classified government documents were propertY of the 

United States). 

Second, courts routinely order the return of privileged documents inadvertently disclosed 

in civil cases. See, e.g., In re Grand Jury Investigation, 142 F.R.D. 276 ,282 (M.D.N.C. 1992) 

(finding attorney client privilege not waived and ordering that the government return all copies 

apd originals of the documents at issue); Fry v. McCall. 1998 WL 273035 (S.D.N.Y. 1998) 

(ordering the return of any and all copies of privileged document). 

Finally, because the 302s at issue are classified and the defendant is not cleared to possess 

them, they constitute contraband. The U.S. Marshal's Service or the Alexandria Detention 

Center, therefore, have the authority to enter the defendant's cellmd remove the contraband. 
I 

The defendant, of course, has no expectation of privacy in ajail cell. Hudson v. Palmer, 468 

U.S. 517, 527-30 (1984)(those in custody have no expectation of privacy in their cells). 

I note again that I intend to serve a copy of this letter on standby counsel but not on the 

defendant. Thank you for your attention and consideration. 

cc: Hon. John Clark 

Frank W. Dunham, Jr. 

Alan H. Yamamoto 

Edward B. MacMahon, Jr. 

Christine E. Gunning 

(All with attachment) 

By: 

Respectfully submitted, 

Paul 1. McNulty 

United States Attorney 

/6'/ 

Robert A. ~-e-n-c-er----

Assistant U.S. Attorney 
REDACTED 
" 

Under Seal 

Hon. Leonie M. Brinkema 

United States District Judge 

401 Courthouse Square 

Alexandria, VA 22314 

U.S. Department of Justice 

United States Attorney 

Eastern District,,.m:.;.~.mTr:r-~-O--::W:-=~--=:t 

2100 Jamieson Avenue 

Alexandria. Virginia 22 SEP - 6 2002 

September 5, 2~2 C(,RK, u.s. DISTRICT COURT 

,nl,EXANDRIA VIRGINIA 

Re: U.S. v. Zacarias Moussaoui; Crim. No. 01-455-A 

Dear Judge Brinkema: 

Of the 43 documents listed in the attachment to our September 5,2002, letter to the 

Court, 13 were produced to defendant Moussaoui in electronic format on four CDs that he still 

possesses. 1 Accordingly, we that the Court that the Court Security , 

Officer obtain those four the defendant's discovery 

room and that the United States re-produce those CDs without 13 documents as soon as 

1 These documents are: 

FBI Serial Number Discovery Number Produced on CD Number 
possible. 

I apologize for approaching the Court again on this issue, and I greatly appreciate the 

Court's consideration. 

A proposed order is attached" Again, I intend to serve a copy of this letter on standby 

counsel but not on the defendant. 

cc: Hon. John Clark 

Frank W. Dunham, Jr. 

Alan H. Yamamoto 

Edward B. MacMahon, Jr. 

Christine E. Gunning 

By: 

Respectfully submitted, 

.. Paul J. McNulty 

United States Attorney 

IDYl 

Robert A. Speflcer 

Assistant U.S. Attorney 
Under Seal 

Hon. Leonie M. Brinkema 

United States District Judge 

401 Courthouse Square 

Alexandria, VA 22314 

U.S. Department of Justice 

United States A 

CtER'S,.. U.s. DISTRICT C0URT 

Alexandria, Virginia ~1 ....... -.:;Al~t=l::.4,A~N.~D,:).!R'~A .!.V!.!llR1I.!I~~:.. __ -1 

September 9,2002 

Re: U.S. v. Zacarias Moussaoui; Crim. No. 01-455-A 

Dear Judge Brinkema: 

in the attachment to our September 5,2002, letter to 

the produced to defendant Moussaoui in electronic 

still possesses. Accordingly, we respectfully request 

ecurity Officer obtain that CD from the defendant's 

discovery room and that the United States re-produce that CD without document as soon as 

possible. . .. 

I apologize for approaching the Court again on this issue, and I greatly appreciate the 

Court's consideration. 

REDACTED 
A proposed order is attached. Again, I intend to serve a copy of this letter on standby 

counsel but not on the defendant. 

cc: Hon. John Clark 

Frank W. Dunham, Jr. 

Alan H. Yamamoto 

Edward B. MacMahon, Jr. 

Christine E. Gunning 

By: .. 

Respectfully submitted, 

Paul J. McNulty 

United States Attorney 

/J7/_ ---.;.----- Robert A. Spencer 

Assistant U.S. Attorney 
• I 

u.s. Department of Justice 

United States Atto'r:IJ£,l'-~~-:ll:-;W;-;;rnr=~ 

~ 

Under Seal 

Hon. Leonie M. Brinkema 

United States District Judge 

401 Courthouse Square 

Alexandria, VA 22314 

Eastern District 0 

2100 Jamieson Avenue 

Alexandria, Virginia 22314 

September 10, 200 

Re: U.S. v. Zacarias Moussaoui; Crim. No. 01-455-A 

Dear Judge Brinkema: 

om. 

I seek the Court's authorization to re-produce hard copy FBI reports of interview ("302s'') 

to defendant Moussaoui without producing 302s previously identified by the United States. The 

re-printing of the 302s will be completed within three business days of the Court's authorization, 

and I ask that the Court grant an additional day to permit us adequately to index and check the 

documents. . 

The electronic version of 302s produced in discovery ha.ve, I believe, already been 

removed from the defendant by the U.S. Marshal SerVice and the Court Security Officer, and the 

Court has already ordered the United. States to re-produce the relevant CDs to the defendant, 

without documents previously identified by the United States, to the defendant. 

I further ask that the Court Security Officer maintain custody of the documents removed 

from defendant Moussaoui's discovery room pursuant to the Court's orders. 

J 
I attach a proposed order. 

cc: Hon. John Clark 

Frank W. Dunham, Jr. 

Alan H. Yamamoto 

Edward B. MacMahon, Jr. 

ChriStine E. Gunning 

Zacarias Moussaoui 

By: 

Respectfully submitted, 

Paul J. McNulty 

United States Attorney 

/~I 

Robert A. Spencer 

, Assistant U.S. Attorney