Open Hearing Denied in Trial of Accused Terrorist
 
March 29, 2006
 

A federal court has ordered closure of a pre-trial hearing in Chicago of a man accused of providing resources to a Middle Eastern terrorist group. The District Court’s order was the latest in a number of recent rulings in which judges have found that the government’s asserted need for secrecy outweighs the public’s First Amendment right to open courtrooms.

Judge Amy St. Eve, of the U.S. District Court for the Northern District of Illinois, granted the government’s motion to close the hearing. The government asked the judge to seal the courtroom for defendant Mohammad Hamid Khalil Salah’s motion to suppress statements he made during an interrogation by Israeli security officials. Salah is charged under RICO, the federal criminal conspiracy statute, with providing material support and resources to Hamas, a terrorist organization.

The Chicago Tribune and the Center for Constitutional Rights intervened in the case, unsuccessfully supporting Salah’s opposition to closing the courtroom. The Court’s ruling means that when Israeli security agents testify at the hearing, only Salah, his co-defendant and their respective counsel will be present. The Court, however, granted the Tribune’s request to have access to the nonclassified portions of the testimony within seven business days from their admission into evidence.

The government had moved to close the hearing and present the Israeli security witnesses in “light disguise” and to allow them to enter the courtroom though a nonpublic entrance. Judge St. Eve ruled in favor of the government on closing the hearing and allowing the agents to enter through nonpublic entrances but denied the motion to allow them to appear in disguise.

The Israeli government treats as classified both the identity of its agents and the substance of their anticipated testimony. The District Court therefore held that the information is also considered classified under the United States’ Classified Information Procedures Act (CIPA). The Court found the agent’s testimony is also classified by an executive order which states that disclosure of foreign government information – information provided to the U.S. government by a foreign government with the expectation the information remain confidential – is presumed to cause damage to U.S. national security. CIPA, the judge held, requires that any information found to need protection against unauthorized disclosure for purposes of national security should be treated as classified.

Addressing the First Amendment argument for open hearings, the District Court held that closure is appropriate to “preserve higher values” if it is narrowly tailored to serve that interest. The Court held that the U.S. has an overriding interest in maintaining the Israeli agents’ secret identities and testimony to protect national security and facilitate information sharing with Israel. The Court specifically found that public disclosure of the Israeli security agents’ identities and testimony would “damage foreign relations and negatively impact national security.”

The District Court closed the hearing only with respect to the Israeli agents. Other witnesses, including Israeli police officers, will testify in open court. Finally the Court ordered the government to review the final transcript of the agents’ testimony and submit a “proposed public version of the transcript, redacting any testimony designated as classified” within seven business days.

In March 2006, the Administrative Office of U.S. Courts, at the request of the Associated Press, released the results of its first tally of secrecy in federal criminal cases. The nationwide data showed that the bulk of the records for 5,116 federal criminal defendants whose cases were completed in 2003, 2004 and 2005 remain secret. According to AP, most of these defendants are involved in drug gangs and are cooperating with the government, though lately a small number come from terrorism cases.

For more information, e-mail Peter J. Strand at peter.strand@hklaw.com or call toll free, 1-888-688-8500.

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