Terrorism (Confidential Information)

• Author: International Law Group, PLLC
• Pages: 204-206

Page 204

In May 2001, a New York federal court convicted Mohamed Sadeek Odeh and several other defendants for their involvement in the August Page 205 7, 1998 bombings of the American Embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. The bombings killed more than 200 people and wounded thousands. The U.S. charged Defendants with various offenses resulting from their taking part in a conspiracy of Osama bin Ladin and the al Qaeda network.

The district court imposed life sentences, and this appeal ensued. The Defendants now claim that their convictions should be vacated and present a litany of arguments. The U.S. Court of Appeals for the Second Circuit affirms the convictions except for one of the defendants, whose case is remanded for re-sentencing.

Among the issues presented on appeal, one involves the use of classified information. Wadih El-Hage, a naturalized U.S. citizen, was a close associate of Osama bin Laden and the head of the Nairobi al Qaeda cell until the time of the bombings at issue. The government subpoenaed El-Hage in September 1997 to testify in an al Qaeda investigation, and arrested him shortly thereafter.

At trial, the government introduced documents and testimony of other al Qaeda members to prove, inter alia, (1) that El-Hage had been present at meetings where terrorists discussed the attacks on U.S. targets (2) that he had served as a financial controller for al Qaeda, (3) that he took part in the obtaining of fraudulent travel documents for al Qaeda members, and (4) that he had belonged to the Nairobi al Qaeda cell.

El-Hage contends that the protective order entered by the District Court pursuant to the Classified Information Procedures Act (CIPA), 18 U.S.C. app. 3, violated his Sixth Amendment right to counsel, his Fifth and Sixth Amendment rights to present a defense, and/or his Fifth and Sixth Amendment rights to be present during a crucial stage of his trial. Here, CIPA authorized the District Court to restrict access to classified information to persons with a security clearance. El-Hages's attorneys did receive such security clearance, but El-Hags himself did not. On this appeal, Defendant challenges that aspect of the District Court's order.

"Where the government seeks to restrict a criminal defendant's 'discovery of evidence in the interest of national security,' [Cite], a district court must determine whether the criminal defendant's interest in the information at issue outweighs the government's...