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National Security Case Studies Special

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National Security Case Studies Special National Security Case Studies Special Case-Management Challenges Robert Timothy Reagan Federal Judicial Center June 25, 2013 This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory mission to develop and conduct research and education programs for the judicial branch. While the Center regards the content as responsible and valuable, it does not reflect policy or recommendations of the Board of the Federal Judicial Center. Contents Table of Challenges .......................................................................................................... xi Table of Judges ............................................................................................................... xiii INTRODUCTION ............................................................................................................ 2 TERRORISM PROSECUTIONS ..................................................................................... 3 First World Trade Center Bombing United States v. Salameh (Kevin Thomas Duffy) and United States v. Abdel Rahman (Michael B. Mukasey) (S.D.N.Y.) ....................................................................... 5 Challenge: Interpreters ............................................................................................. 24 Challenge: Court Security ......................................................................................... 24 Challenge: Pro Se Defendants ................................................................................. 24 Challenge: Jury Security .......................................................................................... 24 Challenge: Classified Evidence ............................................................................... 25 Challenge: Terrorist Communications ..................................................................... 26 Kenya and Tanzania United States v. El-Hage (Leonard B. Sand, Kevin Thomas Duffy, and Lewis A. Kaplan, S.D.N.Y.) ............................................................................................................ 27 Challenge: Attorney–Client Contacts ...................................................................... 42 Challenge: Interpreters ............................................................................................. 44 Challenge: Mental Health During Detention ........................................................... 44 Challenge: Jury Security .......................................................................................... 46 Challenge: Court Security ........................................................................................ 46 Challenge: Witness Security .................................................................................... 47 Challenge: Religious Accommodation .................................................................... 48 Challenge: Classified Evidence ............................................................................... 49 Challenge: Classified Arguments ............................................................................. 51 Challenge: Classified Orders and Opinions ............................................................. 51 Challenge: Subpoenaing a Cabinet Officer .............................................................. 52 Millennium Bomber United States v. Ressam (John C. Coughenour, W.D. Wash.) and United States v. Haouari (John F. Keenan, S.D.N.Y.) .............................................................................. 54 Challenge: Classified Evidence ............................................................................... 63 Challenge: Examination of Foreign Witnesses ........................................................ 64 Challenge: Court Security ........................................................................................ 64 Challenge: Jury Security .......................................................................................... 65 Challenge: Witness Security .................................................................................... 65 Mujahedeen Khalq United States v. Afshari (Robert M. Takasugi and David O. Carter, C.D. Cal.) ............ 66 Challenge: Classified Evidence ............................................................................... 68 iii Detroit United States v. Koubriti (Gerald E. Rosen, E.D. Mich.) ............................................... 69 Challenge: Jury Security .......................................................................................... 74 Challenge: Sanctioning a Cabinet Officer ............................................................... 74 Challenge: Classified Evidence ............................................................................... 76 Twentieth Hijacker United States v. Moussaoui (Leonie M. Brinkema, E.D. Va.) ......................................... 78 Challenge: Attorney Appointment ........................................................................... 88 Challenge: Pro Se Defendant ................................................................................... 89 Challenge: Court Security ........................................................................................ 89 Challenge: Jury Security .......................................................................................... 90 Challenge: Classified Evidence ............................................................................... 90 Challenge: Classified Arguments ............................................................................. 92 Challenge: Closed Proceedings ................................................................................ 94 Challenge: Classified Opinion ................................................................................. 95 Challenge: Terrorist Communications ..................................................................... 95 American Taliban United States v. Lindh (T.S. Ellis III, E.D. Va.) .............................................................. 98 Challenge: Protected National Security Information ............................................. 100 Challenge: Classified Evidence ............................................................................. 102 Challenge: Interviewing Guantánamo Bay Detainees ........................................... 102 Challenge: Witness Security .................................................................................. 103 Challenge: Religious Accommodation .................................................................. 104 Dirty Bomber Padilla v. Rumsfeld (Michael B. Mukasey, S.D.N.Y.), Padilla v. Hanft and Padilla v. Rumsfeld (Henry F. Floyd, D.S.C.), and United States v. Hassoun (Marcia G. Cooke, S.D. Fla.) ........................................................................................ 105 Challenge: Attorney–Client Contacts .................................................................... 114 Challenge: Mental Health During Detention ......................................................... 115 Challenge: Classified Arguments ........................................................................... 116 Challenge: Witness Security .................................................................................. 117 Challenge: Court Security ...................................................................................... 117 Challenge: Jury Security ........................................................................................ 118 Challenge: Classified Evidence ............................................................................. 118 Challenge: FISA Evidence ..................................................................................... 119 Lackawanna United States v. Goba (William M. Skretny and H. Kenneth Schroeder, Jr., W.D.N.Y.) ...................................................................................................................... 121 Challenge: Classified Evidence ............................................................................. 126 Challenge: Court Security ...................................................................................... 126 Challenge: Religious Accommodation .................................................................. 127 iv A Plot to Kill President Bush United States v. Abu Ali (Gerald Bruce Lee, E.D. Va.) ................................................ 128 Challenge: Examination of Foreign Witnesses and Witness Security ................... 130 Challenge: Attorney–Client Contacts .................................................................... 131 Challenge: Classified Evidence ............................................................................. 131 Challenge: Classified Arguments ........................................................................... 133 Paintball United States v. Royer and United States v. Al-Timimi (Leonie M. Brinkema, E.D. Va.), United States v. Chandia (Claude M. Hilton, E.D. Va.), and United States v. Benkahla (James C. Cacheris, E.D. Va.) ...................................................................... 135 Challenge: Classified Evidence ............................................................................. 143 Challenge: Closed Proceedings .............................................................................. 143 Challenge: Classified Arguments ........................................................................... 144 Challenge: Attorney–Client Contacts ...................................................................
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