Federal Trials Open to the Public, for Terrorism Cases Support American Constitutional Concepts of Fair Trials, Justice

By Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair


While there are many security and legal problems associated with major terrorism trials conducted in federal courts in the United States, Republican critics of the Obama administration’s decision to try Khalid Sheikh Mohammad (“KSM”) in a New York federal court have methodically spread unnecessary fear in order to politicize that decision. What may be good for the country, much less our legal system, does not factor into their conservative political agenda to undermine the Obama presidency at every turn. It’s tantamount to an irresponsible lunatic standing up in a crowded theater and hollering “fire” just to see how much panic and chaos he can cause.


To begin with, the KSM civilian trial critics charge that the “9/11 mastermind” and his 9/11 co-conspirators will use their incarceration in a federal penal facility to spread their message of terror both within and outside the facility. The critics fail to inform the public that KSM and his co-conspirators will probably be housed in Unit 10 South of the Special Housing Unit in the Metropolitan Correctional Center (“MCC”) located in Manhattan. Unit 10 South is considered the most secure housing unit in any federal facility operated by the Federal Bureau of Prison (“BOP”) in the New York City area. 1/ It’s an ultra maximum security unit used almost exclusively to house terrorism suspects and other offenders who pose a proven danger to other inmates or prison guards. Placement in Unit 10 South has been called the “’nuclear option’ of indefinite solitary confinement.” 2/


Federal regulations grant the BOP tremendous authority to impose “special administrative measures (“SAMs”) on terror suspects for the specific reason of preventing them from instigating acts of terrorism or violence. These regulations, codified in 28 CFR 501.3, provide:


(a) Upon direction of the Attorney General, the Director, Bureau of Prisons, may authorize the Warden to implement special administrative measures that are reasonably necessary to protect persons against the risk of death or serious bodily injury. These procedures may be implemented upon written notification to the Director, Bureau of Prisons, by the Attorney General or, at the Attorney General’s direction, by the head of a federal law enforcement agency, or the head of a member agency of the United States intelligence community, that there is a substantial risk that a prisoner’s communications or contacts with persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons. These special administrative measures ordinarily may include housing the inmate in administrative detention and/or limiting certain privileges, including, but not limited to, correspondence, visiting, interviews with representatives of the news media, and use of the telephone, as is reasonably necessary to protect persons against the risk of acts of violence or terrorism. The authority of the Director under this paragraph may not be delegated below the level of Acting Director.

(b) Designated staff shall provide to the affected inmate, as soon as practicable, written notification of the restrictions imposed and the basis for these restrictions. The notice’s statement as to the basis may be limited in the interest of prison security or safety or to protect against acts of violence or terrorism. The inmate shall sign for and receive a copy of the notification.


(c) Initial placement of an inmate in administrative detention and/or any limitation of the inmate’s privileges in accordance with paragraph (a) of this section may be imposed for up to 120 days or, with the approval of the Attorney General, a longer period of time not to exceed one year. Special restrictions imposed in accordance with paragraph (a) of this section may be extended thereafter by the Director, Bureau of Prisons, in increments not to exceed one year, upon receipt by the Director of an additional written notification from the Attorney General, or, at the Attorney General’s direction, from the head of a federal law enforcement agency or the head of a member agency of the United States intelligence community, that there continues to be a substantial risk that the inmate’s communications or contacts with other persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons. The authority of the Director under this paragraph may not be delegated below the level of Acting Director.


(d) In any case where the Attorney General specifically so orders, based on information from the head of a federal law enforcement or intelligence agency that reasonable suspicion exists to believe that a particular inmate may use communications with attorneys or their agents to further or facilitate acts of terrorism, the Director, Bureau of Prisons, shall, in addition to the special administrative measures imposed under paragraph (a) of this section, provide appropriate procedures for the monitoring or review of communications between that inmate and attorneys or attorneys’ agents who are traditionally covered by the attorney-client privilege, for the purpose of deterring future acts that could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons.
(1) The certification by the Attorney General under this paragraph (d) shall be in addition to any findings or determinations relating to the need for the imposition of other special administrative measures as provided in paragraph (a) of this section, but may be incorporated into the same document.

(2) Except in the case of prior court authorization, the Director, Bureau of Prisons, shall provide written notice to the inmate and to the attorneys involved, prior to the initiation of any monitoring or review under this paragraph (d). The notice shall explain:

(i) That, notwithstanding the provisions of part 540 of this chapter or other rules, all communications between the inmate and attorneys may be monitored, to the extent determined to be reasonably necessary for the purpose of deterring future acts of violence or terrorism;

(ii) That communications between the inmate and attorneys or their agents are not protected by the attorney-client privilege if they would facilitate criminal acts or a conspiracy to commit criminal acts, or if those communications are not related to the seeking or providing of legal  advice.

(3) The Director, Bureau of Prisons, with the approval of the Assistant Attorney General for the Criminal Division, shall employ appropriate procedures to ensure that all attorney-client communications are reviewed for privilege claims and that any properly privileged materials (including, but not limited to, recordings of privileged communications) are not retained during the course of the monitoring. To protect the attorney-client privilege and to ensure that the investigation is not compromised by exposure to privileged material relating to the investigation or to defense strategy, a privilege team shall be designated, consisting of individuals not involved in the underlying investigation. The monitoring shall be conducted pursuant to procedures designed to minimize the intrusion into privileged material or conversations. Except in cases where the person in charge of the privilege team determines that acts of violence or terrorism are imminent, the privilege team shall not disclose any information unless and until such disclosure has been approved by a federal judge.

(e) The affected inmate may seek review of any special restrictions imposed in accordance with paragraph (a) of this section through the Administrative Remedy Program, 28 CFR part 542.


(f) Other appropriate officials of the Department of Justice having custody of persons for whom special administrative measures are required may exercise the same authorities under this section as the Director of the Bureau of Prisons and the Warden.


The certain imposition of SAMs on KSM and his co-conspirators means they will be held virtually incommunicado while they await trial. The only real access they will have to the outside world will be through their attorneys and the attorneys’ support personnel (interpreters, investigators, etc.). And those attorneys and their support personnel would face serious criminal sanctions should they violate the provisions of the SAMs—something the attorneys must swear under oath to abide by. 3/ The BOP will certainly impose the highest level of SAMs on KSM and his co-conspirators—and these restrictive incarceration measures will prevent any effort by them to spread their “terror message” outside the harsh confines of their detention unit.


Several Republican lawmakers have stated on cable news channels that significant classified information secured by KSM’s attorneys through discovery process could be shared with terror organizations or other terrorists. Once again these critics fail to inform the public that the Classified Information Procedures Act (“CIPA”) offers enough safeguards to prevent any breaches of national security interests. 4/ Congress established CIPA for the very specific purpose of handling discovery requests for classified information in criminal cases. Classified information under CIPA includes “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.” 5/ The Second Circuit Court of Appeals, which oversees all New York federal district courts, recently reaffirmed the vitality of CIPA by saying it is “meant to protect and restrict discovery of classified information in a way that does not impair the defendant’s right to a fair trial.” 6/

Section 4 of CIPA establishes procedures for discovery of classified information:


“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 will be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.” 7/


The Second Circuit has held this section “clarifies district courts’ power under Federal Rule of Criminal Procedure 16(d)(1) to issue protective orders denying or restricting discovery for good cause,” which includes, “information vital to the national security.” 8/


The Second Circuit added that “CIPA does not itself create a government privilege against the disclosure of classified information; it presupposes one. The ‘most likely source for the protection of classified information lies in the common-law privilege against disclosure of state secrets.’” 9/


The United States Supreme Court more than five decades ago ushered the common law “state secrets privilege” into its modern doctrine. 10/


The court ruled the privilege grants unto the Government the right to refuse disclosure of classified information if “there is a reasonable danger” its disclosure would “expose military matters which, in the interest of national security, should not be divulged.” 11/

The Second Circuit last year wrestled with the application of the state secrets privilege in today’s era of terrorism trials and decided to apply the Supreme Court’s standard for disclosure of an informant’s identity to the “state secrets” privilege. 12/


The informant privilege was first articulated by the Supreme Court in 1957. 13/


Saying this privilege is qualified, the high court instructed lower federal and state courts to conduct a balancing test that weighs the public’s interest in protecting sources of information against a criminal defendant’s right to prepare a defense. 14/


Factors a court should consider in its balancing test are “the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” 15/

The lowers courts have the authority to conduct in camera hearings, should they decide to exercise it, to determine whether disclosure would endanger an informant. 16/


Guided by this informant privilege standard, the Second Circuit held the trial court must first determine if the disputed classified information is material before determining whether the state secrets privilege attaches. 17/


The state secrets privilege applies if “(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.’” 18/


But that does not end the inquiry. If the trial court finds the classified information is material for discovery purposes but the state secrets privilege attaches, the Second Circuit requires the trial court to then determine “whether the information is helpful or material to the defense, i.e., useful to ‘counter the government’s case or to bolster a defense” … In order to be helpful or material, the evidence ‘need not rise to the level that it would trigger the Government’s obligation under Brady to disclose exculpatory information.’” 19/


In effect, any decision to issue a protective order under Section 4 of CIPA and Rule 16(d)(1) of the Federal Rules of Criminal Procedure to protect classified information rests with the discretion of the trial court and the Second Circuit reviews those decisions under its own strict “abuse of discretion” doctrine. What does this actually mean in a terrorism case?

Last month the appeals court invoked its “abuse of discretion” doctrine to uphold a decision by the trial court in the case of New York attorney Lynne Stewart who, along with several co-defendants, were convicted of violating the SAMs in the case of Abdel Rahman, the infamous blind Islamic cleric and convicted terrorist. The trial court in the Stewart case issued a protective order under CIPA and Rule 16(d) (1) which prohibited the disclosure of classified information obtained against her under the Foreign Intelligence Surveillance Act (“FISA”). The Second Circuit ruled that the trial court had not abused its discretion by issuing the protective order. 20/


In reaching its decision in the Stewart case, the Second Circuit was “guided by certain principles established by the Federal Rules of Evidence—that, as a general rule, ‘[a]ll relevant evidence is admissible,’ Fed.R.Evid. 402, but that even relevant evidence, although admissible, may be excluded by the district court ‘if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence,’ Fed.R.Evid. 403. ‘A district court is obviously in the best position to do the balancing mandated by Rule 403. We will second-guess a district court only if there is a clear showing that the court abused its discretion or acted arbitrarily or irrationally.’” 21/


The Stewart decision simply reinforced a longstanding evidentiary rule that a federal district court has the authority to exclude any evidence (including torture-related evidence) subject only to the broad abuse of discretion doctrine. The Stewart decision tracks with a similar decision handed down by the D.C. Circuit Court of Appeals twenty years ago. 22/


These two circuits, along with the Fourth Circuit, have the most experience in dealing with terrorism-related cases. 23/


The three courts have uniformly held firm in their decisions to protect classified information from unnecessary disclosure. We have no reason to believe they will change their positions with the advent of the KSM trial.

In fact, these courts were given a significant reminder by the U.S. Supreme Court on November 30, 2009 about the judicial deference federal courts should pay to non-disclosure by when that court overturned a ruling by the Second Circuit which had ordered the Obama administration to release photographs to media outlets showing prisoner abuse in Iraq and Afghanistan. 24/


Ironically, the U.S. Justice Department under Attorney General Eric Holder, who made the final decision to try KSM in civilian court, had initially argued against an appeal to the Supreme Court in the torture photographs case but President Obama overruled the DOJ attorneys and ordered an appeal taken. The Commander in Chief thus has spoken. His administration will not take lightly any efforts to have classified information disclosed. Federal prosecutors in the KSM case, therefore, have clear marching orders and any attempt by the defendants or their attorneys to push for disclosure of classified “national security” information will be vigorously resisted at every level and with all the legal resources available to the Department of Justice.


While we have expressed concerns about prosecuting KSM and his co-conspirators in a federal civilian court, 25/


those concerns were designed to spur debate about establishing a national security court system set up to openly and fairly deal with terrorism cases, much like the “drug courts” that deal with drug cases. However, Republican critics like former presidential candidates John McCain and Rudy Giuliani have attack the KSM civilian trial decision for naked political reasons. They want to polarize the issue along partisan political lines.


It is this negative political agenda which now encourages us to not only accept but actually embrace a federal civilian trial for KSM and his co-conspirators. Their trials present an opportunity for this nation to demonstrate to the world the enduring quality of the American justice system. We are not a people who believe justice is achieved through terror bombs that kill innocent men, women, and children as al Qaeda and a host of other terrorist groups seem to believe. KSM will have his proverbial “day in court” and if he chooses to spend that day shouting, cursing, and hurling threats at the American people, we will endure it as a small price to pay for a free and open court system dedicated to the objectives of justice, not terror.

Perhaps then the Republican critics will be silenced.




1/ In re Basciano, 542 F.3d 950, 953 (2nd Cir. 2008)
2/ Basciana v. Lindsay, 369 F.Supp.2d 344, 353 (E.D.N.Y. 2005)
3/ United States v. Stewart, 2009 U.S. App. LEXIS 25184 (2nd Cir. Nov. 17, 2009)
4/ 18 U.S.C. app. 3, L.No. 96-456, 94 Stat. 2025 (1980)
5/ Id., 18 U.S.C. app. 3 § 1(a)
6/ United States v. Aref, 533 F.3d 72, 78 (2nd Cir. 2008), cert. denied, 129 S.Ct. 1582, 173 L.Ed.2d 679 (2009)
7/ Id., 18 U.S.C. app. 3 § 4
8/ Aref, supra, 533 F.3d at 78
9/ Stewart, supra, Lexis at 98-99 [citing Aref with approval]
10/ United States v. Reynolds, 345 U.S. 1 (1953)
11/ Id., 345 U.S. at 10
12/ Aref, supra, 533 F.3d at 79-80
13/ Rovairo v. United States, 353 U.S. 53 (1957)
14/ Rovairo, supra, 353 U.S. at 62
15/ Rovairo, supra, 353 U.S. at 62
16/ United States v. Saa, 859 F.2d 1067 (2nd Cir. 1988)
17/ Aref, supra, 533 F.3d at 80
18/ Aref, supra, 533 F.3d at 80 [citing Reynolds]
19/ Aref, supra, 533 F.3d at 80
20/ Stewart, supra, Lexis at 105
21/ Stewart, supra, Lexis at 106.
22/ United States v. Yunis, 867 F.2d 617 (D.C. Cir. 1989)
23/ El Masri v. United States, 479 F.3d  296 (4th Cir. 2007)
24/ http://www.nytimes.com/2009/12/01/us/politics/01scotus.html?_r=1
25/ https://www.johntfloyd.com/comments/november09/enemy-combatant-trials.htm

By Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair