The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge
MEMORANDUM OPINION AND ORDER
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"), also known as Abu Ahmad, and his co-defendants, Mousa Mohammed Abu Marzook and Abdelhaleem Hasan Abdelraziq Ashqar. Jury selection in the case commenced on October 12, 2006. Prior to the commencement of trial, the Court held extensive hearings regarding the government's proposed substitutions for classified information, pursuant to the Classified Information Procedures Act. The Court's holding regarding these substitutions is set forth in detail below.
I. Classified Evidence and the Classified Information Procedures Act
The Classified Information Procedures Act, 18 U.S.C. app. 3, ("CIPA") sets forth certain procedures for the disclosure of classified evidence at criminal trials. Section 5(a) of CIPA requires a defendant to provide written notice to the United States and the Court if he "reasonably expects to disclose or to cause the disclosure of classified information in any manner in connection with any trial or pretrial proceeding" during the criminal prosecution. 18 U.S.C. app. 3, § 5(a). Once a defendant provides such notice, the United States can request a hearing pursuant to Section 6 of CIPA for the Court to determine "the use, relevance or admissibility of classified information that would otherwise be made during the trial or pretrial proceeding." Id. § 6(a).
In this case, Defendant Salah filed a notice pursuant to Section 5(a) of CIPA identifying certain classified information that he expected to disclose during trial. (R. 686-1.) The information consisted of classified testimony given during the suppression hearing in this case. Although the government disputed the sufficiency of Defendant's notice, the Court need not address this issue because it has held multiple hearings -- including ex parte, in camera hearings with Defendant -- providing Defendant with the opportunity to explain what classified information he seeks to disclose and how such information pertains to his case. These hearings also provided the Court with an analysis of the nature of Defendant's defense. After extensive hearings and an exhaustive review of the classified information from both the Section 4 and Section 6 portions of the suppression hearing, the Court approves five separate substitutions that will provide Defendant Salah with substantially the same ability to make his defense as would disclosure of the specific underlying classified information. The Court orally gave its reasons for these rulings during the extensive hearings on the issue. The Court now provides a written explanation of these rulings, and hereby incorporates by reference its prior oral rulings.
II. Standard Governing CIPA Substitutions
Before addressing the substance of the substitutions, the parties dispute the appropriate standard governing CIPA substitutions at trial. The government argues that the substitutions for classified information should be based on classified testimony and documents that are "helpful to the defense." On the other hand, Defendant Salah argues that if the classified information is relevant and admissible under the Federal Rules of Evidence, it should be provided to him for use at trial. Defendant further argues that if the classified evidence is relevant, "the defense is entitled to use it, and if the government refused to provide the information to the defense, the indictment must be dismissed."
Neither side has articulated the correct standard. Instead, the substitution standard is set forth in the plain text of the CIPA. Namely, Section 6(c) provides that the:
United States may move that, in lieu of the disclosure of such specific classified information [ordered disclosed by the court], the court order - (A) the substitution for such classified information of a statement admitting relevant facts that the specific classified information would tend to prove; or (B) the substitution for such classified information of a summary of the specific classified information.
18 U.S.C. app. 3, § 6(c). If a court determines that "the statement or summary will provide the defendant with substantially the same ability to make his defense as would disclosure of the specific classified information," the court shall grant the United States' motion. Id. (emphasis added). See also United States v. Dumeisi, 424 F.3d 566, 578 (7th Cir. 2005) (upholding district court's approval of the substitution where the substitution provided defendant with "substantially the same ability to make his defense as would disclosure of the specific classified information"); United States v. Moussaoui, 365 F.3d 292, 313 -314 (4th Cir. 2004) ("We believe that the standard set forth in CIPA adequately conveys the fundamental purpose of a substitution: to place the defendant, as nearly as possible, in the position he would be in if the classified information (here, the depositions of the witnesses) were available to him."). This standard complies with CIPA's "fundamental purpose" of protecting and restricting "the discovery of classified information in a way that does not impair the defendant's right to a fair trial." Dumesi, 424 F.3d at 578.
III. Substitutions At Issue
The approved substitutions are set forth below.*fn1 These substitutions are in lieu of classified information that is relevant to the testimony of the Israel Security Agency witnesses.
The United States admits solely for the purposes of this trial that the following interrogation methods were authorized to be used by the Israel Security Agency ("ISA"), formerly known as the General Security Service ("GSS"), during detainee interrogations, without regard to an adult detainee's age or citizenship, during the time period of defendant Salah's detention from January 1993 through May 1993:
(a) The use of hoods, handcuffs, and shackles;
(b) The ability between interrogation sessions to handcuff a detainee behind the back either to a regular-sized chair in an interrogation room or to a regular-sized or small chair in the hallway where the detainee might also be hooded to avoid the detainee observing other detainees in the hallway;
(c) Threatening to harm a detainee or threatening to arrest family members of the detainee;
(d) Depriving the detainee of sleeping conditions by withholding access to a mattress and blankets for up to 48 hours;
(e) When the interrogator determines that the detainee is withholding information that relates to an imminent threat to human life, and with supervisory approval, slapping a detainee.
As part of defendant Salah's interrogation and for the purpose of obtaining information, including a written statement, from him between approximately February 28, 1993, and March 9, 1993, he was placed in two different prison facilities, both comprised of between ten to twenty participants with whom defendant Salah was housed (referred to as "the Birds exercise"). The United States admits solely for the purposes of this trial the following with respect to the Birds exercise:
Individuals who participated in the Salah Birds exercise were instructed by the Israel Security Agency ("ISA"), formerly known as the General Security Service ("GSS"), on how to carry out the Birds exercise. The ISA/GSS did not monitor Salah through either audio or video while he was in the Birds exercise and, thus, there was no audiotaping or videotaping of any portion of Salah's time in the Birds exercise. The participants in the Birds exercise with defendant Salah were prisoners in jail for non-violent ...