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This information is from the Government’s brief [Doc. Entry No. 22].

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

ISSAM HAMAMA,

Defendant.

 /

Case No. 08-20314

Honorable Nancy G. Edmunds

ORDER GRANTING GOVERNMENT’S MOTION FOR PROTECTIVE ORDER [22]

This matter came before the Court on the Government’s motion for a protective order.

For the reasons stated below and at the in camera, exparte hearing on the Government’s

motion, the Government’s motion is GRANTED.

I. Background1

Beginning in at least 1991, Defendant agreed to operate in the United States as an

agent for the government of Iraq, which was ruled at the time by Saddam Hussein.

Defendant’s activities included collecting information about groups in the United States that

were opposed to the regime of Saddam Hussein and reporting that information to officers

of the Iraqi Intelligence Service (“IIS”) located in Washington. D.C. and at the United

Nations in New York, New York. In exchange for his reporting, Defendant received

monetary payments from the IIS. 

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Following the invasion of Iraq in 2003, United States military forces operating in Iraq

found documents that belonged to the IIS. Some of these documents detailed Defendant’s

activities, including payments that were made to him by the IIS. In addition, an opposition

group in Iraq found IIS documents and provided them to the United States. Some of these

documents also pertain to Defendant.

After the invasion of Iraq, Defendant sought employment as a translator for United

States military forces in Iraq. In order to obtain this employment, Defendant was required

to complete an application for security clearance. In the application, Defendant stated “no”

in response to a question asking whether he had ever had “any contact with a foreign

government . . . .” In June and September, 2006, Defendant was interviewed by agents

from the Federal Bureau of Investigation (“FBI”). During the interviews, Defendant

acknowledged providing the IIS with information about opposition groups, but claimed that

he was never an IIS source and never received any payments from the IIS. 

On June 3, 2008, a grand jury returned a four-count indictment charging Defendant

with: one count of conspiracy to act as an agent of a foreign government, in violation of 18

U.S.C. §§ 371, 951; two counts of making false statements on security clearance

application forms, in violation of 18 U.S.C. § 1001; and one count of making false

statements during an interview with FBI agents, in violation of 18 U.S.C. § 1001. The

indictment was unsealed on November 24, 2008.

Subsequently, the government provided Defendant with virtually all discoverable

material, including copies of IIS documents pertaining to Defendant, a video tape of

Defendant speaking at an IIS party, reports of investigation written by the FBI, as well as

other documents and records. 

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On December 22, 2009, the government filed a motion for a protective order

prohibiting disclosure of certain classified information to the defense during discovery. The

government claims that there exists “a small amount of relevant classified information” that

it seeks to preclude from discovery because “the classified information will not be used by

the government at trial, is not exculpatory, is subject to the government’s classified

information privilege, or is otherwise not discoverable.” (Gov’t Mot. at 3-4.) This matter is

now before the Court. 

II. Legal Principles

A. Statutory Authority and Fed. R. Crim. P. 16(d)(1)

The motion is brought pursuant to Fed. R. Crim. P. 16(d)(1) and § 4 of the Classified

Information Procedures Act (“CIPA”), 18 U.S.C.A. App. 3 § 4.

Fed. R. Crim. P. 16(d)(1) addresses protective orders and provides that:

At any time the court may, for good cause, deny, restrict, or defer discovery or

inspection, or grant other appropriate relief. The court may permit a party to

show good cause by a written statement that the court will inspect ex parte. If

relief is granted, the court must preserve the entire text of the party’s statement

under seal.

Sections 3 and 4 of CIPA address protective orders and discovery. 

Section 3 of CIPA, titled “Protective orders,” provides that:

Upon motion of the United States, the court shall issue an order to protect

against the disclosure of any classified information disclosed by the United

States to any defendant in any criminal case in a district court of the United

States.

18 U.S.C.A. App. 3 § 3 (West 2000). 

Section 4 of CIPA, titled “Discovery of classified information by defendants,” provides

that:

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The court, upon a sufficient showing, may authorize the United States to delete

specified items of classified information from documents to be made available

to the defendant through discovery under the Federal Rules of Criminal

Procedure, to substitute a summary of the information for such classified

documents, or to substitute a statement admitting relevant facts that the

classified information would tend to prove. The court may permit the United

States to make a request for such authorization in the form of a written statement

to be inspected by the court alone. If the court enters an order granting relief

following such an ex parte showing, the entire text of the statement of the United

States shall be sealed and preserved in the records of the court to be made

available to the appellate court in the event of an appeal.

18 U.S.C.A. App. 3 § 4 (West 2000). 

“Classified information” is defined in CIPA as “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 for reasons of national

security . . . .” 18 U.S.C.A. App. 3 § 1(a) (West 2000). 

B. Relevant Case Law

Although the Sixth Circuit has not directly and fully addressed the applicable

procedures required when the Court is confronted with this type of Rule 16(d)(1)/§ 4 CIPA

motion, various other Circuit Courts of Appeal and United States District Courts have done

so, setting forth the following legal principles and standards.

1. General Principles

It is well settled that the government may move in camera and ex parte for a protective

order restricting discovery, see United States v. Mejia, 448 F.3d 436, 457-58 (D.C. Cir.

2006); United States v. Sarkissian, 841 F.2d 959, 965 (9th Cir. 1988); United States v.

Pringle, 751 F.2d 419, 427 (1st Cir. 1984); United States v. Abujihaad, No. 3:07,CR 57

(MRK), 2007 WL 2972623, *3 (D. Conn. Oct. 11, 2007); United States v. Libby, 429 F.

Supp.2d 46, 47 (D. D.C. 2006); and that the Court may hold in camera and ex parte

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hearings on such motions, see United States v. Aref, 533 F.3d 72, 81 (2d Cir. 2008); United

States v. Klimavicius-Viloria, 144 F.3d 1249, 1261 (9th Cir. 1998). 

More important here is how the federal courts have answered the question concerning

what standard the Court applies when “determining what relevant classified information a

criminal defendant is entitled to receive during discovery.” Aref, 533 F.3d at 76. In Aref,

similar to here, the government sought protective orders under Rule 16(d)(1) and Section

4 of CIPA. In that case, the district court held a number of ex parte, in camera conferences

with the government and an ex parte, in camera conference with defense counsel “to assist

the court in deciding what information would be helpful to the defense.” Id. 76-77.

Ultimately, the district court “granted the motions in part and denied the rest.” Id. at 76.

That decision was subsequently affirmed. The Second Circuit’s analysis is instructive.

The Aref Court first observed CIPA’s purpose. “The statute was meant to ‘protect[]

and restrict[] the discovery of classified information in a way that does not impair the

defendant’s right to a fair trial.’” Id. at 78 (quoting United States v. O’Hara, 301 F.3d 563,

568 (7th Cir. 2002)). It further observed that CIPA does not create a new governmental

privilege. Rather, § 4 of CIPA “presupposes a governmental privilege against disclosing

classified information. It does not itself create a privilege.” Id. (emphasis in original;

citations omitted). See also United States v. Yunis, 867 F.2d 617, 621 (D.C. Cir. 1989)

(observing that § 4 of CIPA “creates no new rights of or limits on discovery of a specific

area of classified information” but rather “contemplates an application of the general law

of discovery in criminal cases to the classified information area with limitations imposed

based on the sensitive nature of the classified information.”). 

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As to the source of the governmental privilege in CIPA, the Aref Court concluded that

the “most likely source for the protection of classified information lies in the common-law

privilege against disclosure of state secrets.” Aref, 533 F.3d at 78. It rejected a statement

to the contrary in a report on CIPA prepared by the House of Representatives Select

Committee on Intelligence. Finding the Committee’s statement to be overly broad and

unsupported by the three decisions it relied upon, it held that “the applicable privilege here

is the state-secrets privilege.” Id. at 79 (citing United States v. Klimavicius-Viloria, 144 F.3d

1249, 1261 (9th Cir. 1998)). 

2. Government Privilege Must Give Way If Information Is “Relevant

and Helpful” to the Defense

The privilege is not absolute. Citing other decisions involving application of the statesecrets privilege in a criminal case, the Aref court observed that “the privilege can be

overcome when the evidence at issue is material to the defense.” Id. It then observed that

“[t]his standard is consistent” with that announced by the Supreme Court in Roviaro v.

United States, 353 U.S. 53 (1957), “where the Supreme Court held in a criminal case that

the Government’s privilege to withhold the identity of a confidential informant ‘must give

way’ when the information ‘is relevant and helpful to the defense of an accused, or is

essential to a fair determination of a cause.’” Id. (quoting Roviaro, 353 U.S. at 60-61)

(emphasis added). Accordingly, the Second Circuit “adopt[ed] the Roviaro standard for

determining when the Government’s privilege must give way in a CIPA case.” Id. at 79-80.

Other Circuit Courts of Appeal addressing this issue have similarly concluded that,

because the government-informant privilege at issue in Roviaro is analogous to the statesecrets privilege in CIPA, the Roviaro standard of “relevant and helpful to the defense”

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should be adopted “for determining when the Government’s privilege must give way in a

CIPA case.” Id. at 79-80. See United States v. Klimavicius-Viloria, 144 F.3d 1249, 1261

(9th Cir. 1998); United States v. Varca, 896 F.2d 900, 905 (5th Cir. 1990) (observing that

“CIPA was not . . . intended to expand the traditional rules of criminal discovery under

which the government is not required to provide criminal defendants with information that

is neither exculpatory nor, in some way, helpful to the defense”); United States v. Yunis,

867 F.2d 617, 623 (D.C. Cir. 1989) (observing that “theoretical relevance in the face of the

government’s classified information privilege” is not enough; rather, “like a defendant

seeking the informant’s identity in Roviaro,” a defendant in a CIPA case “is entitled only to

information that is at least ‘helpful to the defense of [the] accused’”) (quoting Roviaro, 353

U.S. at 60-61); United States v. Moussaoui, 382 F.3d 453 (4th Cir. 2004) (observing that

the Fourth Circuit has “adopted the standard articulated by the Supreme Court in Roviaro”

for “determining whether the government’s privilege in classified information must give way”

and further observing that “[u]nder that standard, a defendant is entitled to disclosure of

classified information upon a showing that the information ‘is relevant and helpful to the

defense . . . or is essential to a fair determination of a case’”) (quoting Roviaro, 353 U.S.

at 60-61); and United States v. Pringle, 751 F.2d 419, 427-28 (1st Cir. 1984) (affirming the

district court’s decision to issue protective orders under CIPA because, based on its review

of the classified information, it agreed with the district court that the information “was not

relevant to the determination of guilt or innocence of the defendants, was not helpful to the

defense and was not essential to a fair determination of the cause”). This Court is of the

opinion that the Sixth Circuit would adopt the “relevant and helpful to the defense” standard

as well. 

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3. Application of Roviaro Standard in CIPA Context

Application of the Roviaro standard in the CIPA context is done in three steps. 

First, “the reviewing court must find that the information crosses the low hurdle of

relevance.” United States v. Mejia, 448 F.3d 436, 455 (D.C. Cir. 2006) (internal quotation

marks and citation omitted). 

Second, if the classified information is relevant, “the district court must then determine

whether the state-secrets privilege applies because: (1) there is a reasonable danger that

compulsion of the evidence will expose . . . matters which, in the interest of national

security, should not be divulged, and (2) the privilege is lodged by the head of the

department which has control over the matter, after actual personal consideration by that

officer.” Aref, 533 F.3d at 80 (internal quotation marks and citations omitted). This is

generally accomplished “through the declaration of a United States government official who

adequately describe[s] the reasons for the classification of the information and the harm

to the national security that could result from disclosure.” Abujihaad, 2007 WL 2972623,

at * 2 (citing cases). 

Third, “[i]f the evidence is discoverable but the information is privileged, the court must

decide whether the information is helpful or material to the defense, i.e., useful to counter

the government’s case or to bolster a defense.” Aref, 533 F.3d at 80 (internal quotation

marks and citation omitted) (emphasis added). To overcome the governmental privilege

at issue here, the classified information must be at least helpful to the defense of the

accused. Mejia, 448 F.3d at 456. To be helpful to the defense, “evidence need not rise to

the level that would trigger” a duty to disclose under Brady v. Maryland, 373 U.S. 83 (1963).

Aref, 433 F.3d at 80. “While Brady information is plainly subsumed within the larger

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In Mejia, the D.C. Circuit makes several important caveats. 

First, it observes that, “[b]ecause the classified information does not reach the

threshold of being helpful to the defense,” it did not “consider whether, if the information

were helpful, it could nonetheless be withheld if the government’s need to keep the

information secret outweighed the defendant’s interest in disclosure.” 448 F.3d at 457 n.18

(internal quotation marks and citations omitted). It further observed that although it had not

had the occasion to “endorse a balancing approach,” other Circuit Courts of Appeal had

done so. Id. (referencing United States v. Sarkissian, 841 F.2d 959, 965 (9th Cir. 1988)

and United States v. Smith, 780 F.2d 1102, 1110 (4th Cir. 1985) (en banc)).

Second, for the same reason stated above, it found it unnecessary to decide

“whether a defendant’s interest in information that is helpful, but that does not rise to the

level that is subject to disclosure under Brady v. Maryland, can overcome the government’s

interest in protecting properly classified information.” Id.

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category of information that is ‘at least helpful’ to the defendant, information can be helpful

without being ‘favorable’ in the Brady sense.” Mejia, 448 F.3d at 456-57.2 In determining

whether the classified information is “relevant and helpful to the defense,” the court

considers the classified information, “the crime charged, possible defenses, witnesses, and

other relevant facts.” Abujihaad, 2007 WL 2972623, at * 5. See also Roviaro, 353 U.S. at

62. 

The D.C. Circuit’s decision in Yunis illustrates how to apply this three-prong test. It

is important that the Court carefully review the government’s declaration and classified

information and determine where the government’s security interest lies. In Yunis, the D.C.

Circuit observed that the government’s security interest was not in classified conversations

but rather “in the time, place, and nature of the government’s ability to intercept the

conversations” and further observed that “a foreign counter-intelligence specialist . . . could

learn much about this nation’s intelligence-gathering capabilities from what these

documents revealed about sources and methods.” 867 F.2d at 623. Reversing the district

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court’s order requiring the government to provide defense counsel with classified

information after redacting certain information, the D.C. Circuit determined that the district

court’s finding of relevance was “no more than theoretical” and concluded that “[n]othing

in the classified documents in fact goes to the innocence of the defendant vel non,

impeaches any evidence of guilt, or makes more or less probable any fact at issue in

establishing any defense to the charges.” Id. at 624. Even assuming relevance, the Yunis

court determined that discovery was not proper because the classified information lacked

the necessary “helpful or beneficial character” required for disclosure. Id. 

Finally, if after applying this three-step test, the Court determines that the classified

information is helpful to the defense, the Court should consider “the protective options short

of full disclosure that are set forth in CIPA § 4, namely, permitting the government ‘to

substitute a summary of the information for such classified documents, or to substitute a

statement admitting relevant facts that the classified information would tend to prove.’”

Mejia, 448 F.3d at 457 n.18 (quoting 18 U.S.C. App. III, § 4). See also Abujihaad, 2007 WL

2972623, at * 2 (observing that “[u]nder both § 4 of CIPA and Rule 16(d)(1),” even if the

Court determines “that the classified materials in question contain properly discoverable

information, a court may permit the Government to produce the discoverable information

in a different form (redacted, for example) that would protect national security information,

or may approve the substitution of unclassified summaries of properly discoverable

information or a statement admitting relevant facts that the classified information would

tend to prove.”). 

III. Application

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With these legal principles in mind, and for the reasons stated below and at the in

camera, ex parte hearing, the Court GRANTS the Government’s motion for a protective

order, brought pursuant to CIPA and Rule 16(d)(1), and prohibits the disclosure of certain

classified information to the defense. Having reviewed the Government’s brief, a classified

declaration of a United States Government official, copies of the classified materials that

the Government seeks to withhold from discovery and considering the crimes charged, the

possible defenses, witnesses, evidence, and other relevant factors, the Court concludes

that the classified information is not discoverable. Even if the classified information is

presumed to be relevant, this Court finds that this information is privileged and not helpful

or beneficial to the defense. The classified information is not discoverable under Brady

because it is neither exculpatory nor impeaching. Rather, it falls on the inculpatory side of

the equation. Moreover, most if not all of the information is already known to Defendant

or is duplicative of information he already possesses and thus is not helpful to the defense.

See Abujihaad, 2007 WL 2972623 at *5 (citing cases recognizing that there is “no need to

disclose information already known to defendant”). In light of the above, the Court finds

that the classified information that is the subject of the Government’s motion is not essential

to a fair determination of this case and does not satisfy the “relevant and helpful” standard

applicable to motions brought pursuant to CIPA and Rule 16(d)(1). 

IV. Conclusion

For the above-stated reasons, the Government’s motion for a protective order is

GRANTED. The Government need not disclose to the defense the classified materials

addressed in its motion. It is FURTHER ORDERED that the Government and the Court’s

Security Officer must preserve the classified materials under seal in their entirety in the

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event of an appeal to the Sixth Circuit Court of Appeals. See 18 U.S.C.A. App. 3 § 4; Fed.

R. Crim. P. 16(d)(1). 

s/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: January 21, 2010

I hereby certify that a copy of the foregoing document was served upon counsel of record

on January 21, 2010, by electronic and/or ordinary mail.

s/Carol A. Hemeyer 

Case Manager

 

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