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United States v. Marzook

January 31, 2006


The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge


On August 19, 2004, a Grand Jury returned a multiple-count, second superseding indictment (the "Indictment") against Defendant Muhammad Hamid Khalil Salah ("Defendant" or "Salah") and his co-defendants. Defendant Salah has filed a motion to suppress statements he allegedly made to Israeli authorities. Salah argues that he did not voluntarily make any statements that the government seeks to admit at trial. The United States has filed a motion to conduct certain portions of the suppression hearing in a closed courtroom, pursuant to the Classified Information Procedures Act. The United States has further asked the Court to approve certain procedures to ensure the safety of several witnesses, including allowing these witnesses to wear light disguise while they testify and to use non-public entrances to the courthouse and the courtroom. After reviewing the parties' submissions, including the ex parte and in camera affidavits, the Court grants the government's motion in part.


I. The Indictment

The Indictment charges Defendant Salah with conspiring to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), in violation of 18 U.S.C. § 1962(d) (Count I); knowingly providing and attempting to provide material support and resources to a Foreign Terrorist Organization, namely, Hamas, in violation of 18 U.S.C. § 2339B (Count II); and obstructing justice, in violation of 18 U.S.C. § 1503 (Count III). Each charge is premised upon and related to Salah's alleged support of the Hamas terrorist organization, both prior to and after the United States designated Hamas as a Specially Designated Terrorist Organization and a Foreign Terrorist Organization. The Indictment alleges that Hamas has called for violent terrorist attacks, and engaged in numerous terrorist attacks aimed at Israeli military personnel, police officers, and civilians. It alleges that Defendant Salah has provided material support to Hamas, including recruiting and training new Hamas leaders and disbursing money to support Hamas activities.

II. Defendant's Arrest in Israel

On approximately January 25, 1993, Defendant Salah was arrested in Israel. From this point through approximately March 1993, Salah allegedly made various statements -- both orally and in writing -- to Israeli authorities while he remained in custody. He allegedly made such statements to agents of Israel's General Security Service ("GSS") -- also known as the Israel Security Agency ("ISA") -- the Israeli National Police, and others working for these Israeli authorities. The government seeks to admit these statements during trial.

Defendant Salah has moved to suppress any written and oral statements that he allegedly made to agents of the Israeli government, including the Israeli police, interrogators of the GSS/ISA, and others working with these authorities. In support of his motion, Salah has submitted a sworn affidavit detailing the treatment he claims he received at the hands of his interrogators. Salah argues that he did not voluntarily give any of these statements. He contends that he involuntarily made such statements because Israeli authorities coerced and tortured him into making them. Given that Defendant Salah's affidavit makes a preliminary showing that a significant, disputed factual issue exists, the Court will hold an evidentiary hearing. See United States v. Wilson, 169 F.3d 418, 426 (7th Cir. 1999).

III. The Hearing

The suppression hearing will commence with opening statements on March 3, 2006, and testimony on March 6, 2006. At the hearing, the government intends to call approximately six or seven witnesses to testify. Two of these witnesses will be agents of the ISA. The ISA is an intelligence agency for the State of Israel that provides for Israel's internal security. The government has moved the Court to close the hearing to the public when these ISA agents testify. It argues that a closed hearing is mandated by the Classified Information Procedures Act, and warranted to protect the safety of the ISA agents and the sanctity of the ISA's intelligence gathering methods. In connection with its motion, the government has submitted two affidavits, including the classified affidavit of the Federal Bureau of Investigation's ("FBI") Assistant Director for Counterintelligence David W. Szady. (R. 367-1, Ex. B.) Additionally, in response to the Court's January 17, 2006 order, the government submitted an additional affidavit providing further details of the anticipated testimony of the ISA agents. (R. 402-1.)

IV. Motions to Intervene

The Chicago Tribune Company has moved to intervene in order to challenge the government's motion to close a portion of the suppression hearing to the public. Similarly, the Center for Constitutional Rights*fn1 ("CCR") has moved to intervene for the sole purpose of asserting a First Amendment right of public access to Defendant's suppression hearing. Both the Chicago Tribune and the CCR argue that the allegations at issue in the suppression hearing merit significant public attention, especially Defendant's allegations that Israeli authorities tortured him into making certain statements.

The Court grants both the Chicago Tribune's motion to intervene and the CCR's motion to intervene for the limited purpose of challenging the government's motion to close the ISA agents' testimony to the public. See In re Associated Press, 162 F.3d 503, 506-07 (7th Cir. 1998). After considering their respective submissions, for the reasons discussed in detail below, the Court denies both the Chicago Tribune's and the CCR's request to have the ISA agents testify in an open hearing. The Court grants the Chicago Tribune's request to have timely public access to the transcripts of non-classified portions of the testimony as detailed below.


At the suppression hearing, the Court will determine whether Defendant Salah's alleged statements are admissible at trial. The government has moved to have the testimony of the ISA agents at the hearing conducted in camera for the Court to resolve questions regarding the use and admissibility of Salah's statements. The government argues, and has provided supporting evidence, that the substance of the ISA agents' testimony is classified and thus cannot be disclosed to the public. The government does not seek to have Defendant Salah and his attorneys excluded from this testimony because the Israeli authorities have agreed to waive the classification designation as to the majority of this information as to Salah and his counsel, as well as to Co-Defendant Ashqar's counsel. Instead, the government seeks to have these agents testify outside the presence of the public because Israel has not waived the classification designation generally. Thus, the primary issue presented to the Court is whether the public can have access to the testimonial information deemed classified at the suppression hearing.*fn2

I. The Classified Information Procedures Act

The Classified Information Procedures Act ("CIPA"), 18. U.S.C. App. 3, "is essentially a procedural tool" for a court to address the relevance of classified information before it may be introduced. See United States v. Dumeisi, 424 F.3d 566, 578 (7th Cir. 2005), citing United States v. Wilson, 901 F.2d 378, 379 (4th Cir. 1990). CIPA's "fundamental purpose is 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., quoting United States v. O'Hara, 301 F.3d 563, 569 (7th Cir. 2002). CIPA is designed "to protect classified information from unnecessary disclosure at any stage of a criminal trial." O'Hara, 301 F.3d at 568. It provides "pretrial procedures that will permit the trial judge to rule on questions of admissibility involving classified information before introduction of the evidence in open court." In re Washington Post Co., 807 F.2d 383, 393 (4th Cir. 1986) (citation and quotation omitted).

CIPA defines classified information as "any 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. App. 3, § 1(a). "National security," under CIPA, "means the national defense and foreign relations of the United States." Id., § 1(b).

The government brings this motion pursuant to Sections 4 and 6 of CIPA. Section 4 provides:

The court may permit the United States to make a written request for [an authorization to delete specified items in discoverable documents] 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. App. 3, § 4 (1994). Courts have held that this applies to testimony, as well as documents. See, e.g., United States v. Lee, 90 F.Supp.2d 1324, 1326 n.1 (D. N.M. 2000); United States v. North, 708 F. Supp. 399, 399-400 (D.D.C. 1988).

Section 6 of CIPA sets forth the "procedure for cases involving classified information." It provides that "the United States may request the court to conduct a hearing to make all determinations concerning the use, relevance, or admissibility of classified information that would otherwise be made during the trial or pretrial proceeding." 18. U.S.C. App. 3, ยง 6. Such a hearing "shall be held in camera if the Attorney General certifies to the court ... ...

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