IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

UNITED STATES OF AMERICA )

)

v. ) CRIMINAL ACTION NO. 05-53 (GBL)

)

AHMED OMAR ABU ALI, )

)

Defendant. )

ORDER

THIS MATTER is before the Court on the government s Motion

to Unseal Testimony by Saudi Government Officials and 

Government s Opposition to Defendant s Motion to Suppress, and on

the government s Motion for Protective Order. The issues before

the Court are (1) whether to unseal the existence and transcripts 

of testimony, taken under seal, of Saudi Government officials 

pursuant to Federal Rule of Criminal Procedure 15 and the 

government s Opposition to Defendant s Motion to Suppress; (2)

how the aforementioned testimony will be presented during the 

upcoming suppression hearing and during trial; and (3) the manner 

in which defense counsel shall be permitted access to the video 

recordings of that testimony. The Court grants, in part, the 

government s Motion to Unseal Testimony by Saudi Government 

Officials and Government s Opposition to Defendant s Motion to

Suppress. The Court grants, in part, the government s Motion for

Protective Order. 
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(A) Limited Unsealing of Rule 15 Deposition Transcripts and 

Unsealing of Government s Opposition to Defendant s Motion to

Suppress

Background

By its April 19, 2005 Memorandum Order, this Court granted 

the government s Motion for Rule 15 Depositions and thereby

authorized the parties in this case to take depositions in Saudi 

Arabia of several Saudi government officials, including Foreign 

Witnesses A and B, who are alleged to possess relevant 

information about the detention and interrogation of Defendant 

Ahmed Omar Abu Ali ( Mr. Abu Ali, Defendant ) as his primary

interrogator and superior interrogator, respectively. Federal 

Rule of Criminal Procedure 15(a)(1) allows a party to move for 

the deposition of a prospective witness to preserve his or her 

testimony for trial, and permits the Court to grant the motion 

when exceptional circumstances arise, and when doing so is in

the interest of justice. FED. R. CRIM. P. 15(a)(1).

After weighing the factors articulated in United States v. 

Hajbeh, 284 F.Supp.2d 380, 382 (E.D.Va. 2003), this Court granted 

the Rule 15 motion because it found that: (1) Foreign Witnesses A 

and B are unavailable to testify at trial since they both reside 

in Saudi Arabia and the Saudi government will not allow them to 

travel to the United States to participate in judicial 

proceedings; (2) their testimony is material to the outcome of 
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this proceeding; and (3) their testimony is necessary to serve 

the ends of justice. Mem. Order, Apr. 19, 2005, at 3-5. 

Pursuant to the Order of the Court, the transcript of the 

deposition testimony was filed by the government under seal. The 

government, through the instant motion, now seeks to have the 

existence and transcripts of the Rule 15 deposition testimony 

unsealed.

Ruling

The Court grants the government s Motion to Unseal Testimony

by Saudi Government Officials and Government s Opposition to 

Defendant s Motion to Suppress, and orders that the transcripts

of the Rule 15 deposition testimony are unsealed with the 

following restrictions. During the suppression hearing, both the 

government and defense counsel may refer only to testimony in the 

transcripts. Neither party may refer to those portions of the 

transcript which refer to evidentiary objections. Furthermore, 

neither the government nor defense counsel may refer to arguments 

made by either party during the course of the depositions. 

Finally, neither party may release these transcripts, in whole or 

in part, to the public until so instructed by the Court.

The government s Opposition to Defendant s Motion to

Suppress is unsealed and may be referred to during the 

suppression hearing.
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(B) Presentation of Video Recordings of Rule 15 Depositions at 

Suppression Hearing and at Trial

The Court grants, in part, the government s Motion for

Protective Order and orders that the Rule 15 deposition testimony 

 be displayed in the manner prescribed below. In the Court s

April 19, 2005 Memorandum Order authorizing Rule 15 depositions 

to be taken, the Court specifically reserved the question of 

whether and how that deposition testimony would be presented in 

future hearings and at trial. Mem. Order, Apr. 19, 2005, at 2 

n.1. 

Suppression Hearing

The Court rules that during the suppression hearing, the 

parties will be permitted to play, in open court, those portions 

of the videotaped depositions to which evidentiary objections 

were not made. However, the Court will only permit the public to 

hear audio of the videotaped depositions and will, otherwise, 

conceal the faces of the deponents. During these depositions, at 

the government s request, the Court permitted the Foreign

Witnesses to testify under pseudonyms and ordered the courtroom 

sealed during the deposition testimony because the government 

advanced an overriding interest that is likely to be

prejudiced, and the closure was no broader than necessary to

protect that interest. See Waller v. Georgia, 467 U.S. 39, 48 

(1984) (describing and affirming the standard for closing a 
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hearing in Press-Enterprise Co. v. Super. Ct. Cal., 464 U.S. 501 

(1984)). The Court also considered alternatives to closing the 

proceeding. Id. (holding courts must consider reasonable 

alternatives to closing the proceeding, and... make findings 

adequate to support the closure ).

The Court granted the government s motion to seal the

courtroom because the government articulated overriding public 

interests: protecting the witnesses from possible violent acts, 

allowing the factfinder access to highly relevant testimony 

necessary for a fair adjudication of this case, and Saudi 

cooperation in future terrorism cases. The prosecution informed 

the Court that the Saudi Government expressly conditioned its 

willingness to make the witnesses available for deposition on the 

United States Government s assurance that the true names of the

witnesses will not be made public. Both witnesses work for the 

Saudi domestic security service, the Mabahith, and their true 

names are classified. Other Mabahith members whose true names 

have been publicized have suffered violent retribution. Other 

courts have permitted the sealing of courtrooms and testimony 

under pseudonyms when danger to the witnesses or national 

security interests are at issue. See United States v. Moussaoui, 

382 F.3d 453, 458 (4th Cir. 2004) (allowing remote video 

depositions of witnesses not identified to the public for 

national security reasons); see also Ayala v. Speckard, 131 F.3d 

62 (2d Cir. 1997) (holding three state court trial judges 
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adequately determined that courtroom closure was warranted

during the testimony of undercover officers whose testimony might 

make it impossible for them to continue their work); Smith v. 

Illinois, 390 U.S. 129, 133-34 (1968) (White and Marshall, JJ., 

concurring) (suggesting that a court may bar inquiries on crossexamination tending to endanger the personal safety of a 

witness). 

Despite the Court s granting of the government s motion to

seal the courtroom and allow Foreign Witnesses A and B to testify 

under pseudonyms, the Court recognizes that sealed proceedings in 

a criminal case, particularly involving the credibility of key 

prosecution witnesses, are highly disfavored. See Smith, 390 

U.S. at 131 (citing Pointer v. State of Texas, 380 U.S. 400, 404 

(1965) ( Yet when the credibility of a witness is in issue, the

very starting point in exposing falsehood and bringing out the

truth through cross examination must necessarily be to ask the 

witness who he is and where he lives.... To forbid this most 

rudimentary inquiry at the threshold is effectively to emasculate 

the right of cross-examination itself ). Consequently, the Court

has fashioned a procedure intended to preserve the defendant s

rights to confrontation under the Sixth Amendment and the public 

and the press s qualified First Amendment rights to attend

criminal trials. See Waller, 467 U.S. at 44-45 (citing Globe 

Newspaper Co. v. Super. Ct. Norfolk County, 457 U.S. 596 (1982) 
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(discussing the First Amendment rights of the public and press to 

attend criminal trials)). 

Trial

The Court rules that, during trial, the depositions will be 

presented in the same manner as during the suppression hearing, 

with one exception. During trial, the jury, the defendant, and 

counsel will see the full edited video testimony with the faces 

unobstructed. 

Evidentiary Objections to Transcripts

The Court directs both parties to meet on or before 

September 30, 2005 to jointly review the transcript, and seek to 

resolve, in advance of trial, any evidentiary objections to the 

transcript registered by either side and to determine which 

portions, if any, of the testimony are not necessary for 

consideration by the judge or jury (e.g. dialogue with the judge 

and counsel concerning scheduling witnesses, etc.). If 

necessary, the parties shall then prepare a list of any 

unresolved objections not including translation issues concerning 

the transcripts and submit that list to the Court no later than 5 

p.m. on Thursday, October 6, 2005. The Court will hold a hearing 

on any unresolved evidentiary objections at the end of the civil 

docket at 12:00 noon on Friday, October 14, 2005. After those 

objections have been resolved, the Court will require that the 
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video and audio recordings to be played at trial be edited 

accordingly.

Translation-Related Objections to Transcript

The Court will address, in a separate Order, the manner in 

which the parties objections to the transcripts that are based

on translation-related issues are to be resolved.

(C) Defense Access to Video Recordings of Rule 15 Depositions

The Court grants the government s Motion for Protective

Order and prohibits defense counsel, the government, and any 

other persons from making or receiving copies of the 

aforementioned video recordings for the reasons the Court has 

shielded the identity and names of the Saudi Arabian government 

officials discussed above. However, the government shall give 

defense counsel liberal access and opportunity to privately view 

the video recordings of the Rule 15 depositions at the United 

States Attorney s Office in Alexandria, VA. The Court notes that

this ruling is in no way a reflection upon the integrity or 

ethics of defense counsel who continue to conduct themselves in 

accordance with their duties as officers of the court. However, 

the Court issues this protective order in order to minimize the 

likelihood that individuals other than defense counsel and the 

government will inadvertently gain access to the video 

recordings. 
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For the preceding reasons, it is hereby

ORDERED that the government s Motion to Unseal Testimony by

Saudi Government Officials and Government s Opposition to

Defendant s Motion to Suppress is GRANTED IN PART. The

transcripts of the Rule 15 deposition testimony are unsealed with 

the following restrictions. During the suppression hearing, both 

the government and defense counsel may refer only to testimony in 

the transcripts. Neither party may refer to those portions of 

the transcript to which evidentiary objections were made. 

Furthermore, neither the government nor defense counsel may refer 

to arguments made by either party during the course of the 

depositions. Finally, neither party may release these 

transcripts, in whole or in part, to the public until so 

instructed by the Court. Also, the government s Opposition to

Defendant s Motion to Suppress is unsealed and may be referred to

during the suppression hearing. It is further

ORDERED that the government s Motion for Protective Order is

GRANTED IN PART. During the suppression hearing, the parties 

will be permitted to play, in open court, testimony of witnesses 

excluding those portions of the videotaped depositions to which 

evidentiary objections were made. However, the Court will only 

permit the public to hear audio of the videotaped depositions and 

will, otherwise, conceal the faces of the deponents. During 

trial, the depositions will be presented in the same manner as 

during the suppression hearing, with one exception. During 
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trial, the jury, the defendant, and counsel will see the full 

edited video testimony with the witnesses faces unobstructed.

It is further

ORDERED that defense counsel, the government, and any other 

persons are prohibited from making or receiving copies of the 

aforementioned video recordings for the reasons the Court has 

shielded the identity and names of the Saudi Arabian government 

officials discussed above. However, the government shall give 

defense counsel liberal access and opportunity to privately view 

the video recordings of the Rule 15 depositions at the United 

States Attorney s Office in Alexandria, VA. It is further

ORDERED that both parties meet on or before September 30, 

2005 to jointly review the transcript, and seek to resolve, in 

advance of trial, any evidentiary objections to the transcript 

registered by either side. If necessary, the parties shall then 

prepare a list of any unresolved issues concerning the 

transcripts and submit that list to the Court no later than 5 

p.m. on Thursday, October 6, 2005. The Court will hold a hearing 

on any unresolved evidentiary objections at 12:00 noon on Friday, 

October 14, 2005. After those objections have been resolved, the 

Court will require that the video and audio recordings to be 

played at trial be edited accordingly.
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The Clerk is directed to forward a copy of this Order to 

counsel of record.

ENTERED this ___16th____ day of September, 2005.

___________/s/________________

Gerald Bruce Lee

United States District Judge

Alexandria, Virginia

9/16/05