HAMAS Terrorism Financing - Israeli Agents To Testify Under CIPA

In August of 2004, a federal grand jury in the Northern District of Illinois returned a second, multi-count, superceding indictment against three men alleging that they knowingly provided and attempted to provide material support to Palestinian terrorist organization Hamas. An apparently integral element of the government’s case against one of the men (Muhammad Hamid Khalil Salah) however, comes from statements made following a 1993 arrest in Israel by members of the Israeli Security Agency (ISA). Mr. Salah’s defense counsel filed a Motion to Suppress any oral or written statements allegedly made to members of the Israeli security team, submitting a sworn affidavit detailing what he claims to be acts of coercion and torture. In the face of this factual dispute, Judge Amy J. St. Eve has ordered an evidentiary hearing be held.

Because two of those witnesses who will be asked to testify at the hearing are members of the ISA, the government moved to close the hearing to the public under the Classified Information Procedures Act (CIPA) and in the interest of ensuring the protection of classified Israeli national security information (i.e. sources and methods). Under CIPA, the court is obliged to take pretrial measures to prevent the unnecessary disclosure of important defense and national security information, as classified properly under statute and Executive Order.^[1] Section 4 of CIPA permits the government to submit to the court a request that certain sections of discoverable documents be redacted to secure the classification. This procedure has been upheld by the courts as applying to oral testimony as well.^[2] According to the Judge St. Eve’s review of materials submitted to date, testimony of the two ISA agents is properly classified under Executive Orders 12958 and 13292, which classifies shared foreign intelligence information. Defense counsel argued that because much of the information likely to be discussed by the two ISA agents may be found within the public domain, the testimony itself should be held in public forum. But, according to the court, because such public information is merely speculative and not certified by government declassification of relevant materials, ISA testimony remains properly classified.^[3]

Section 6 of CIPA goes on to provide the procedural mechanism by which a hearing may be held so the court may “make all determinations concerning the use, relevance, or admissibility of classified information that would otherwise be made during the trial or pretrial proceeding.”^[4] Fearing that a public proceeding pursuant to Section 6 would risk the unauthorized disclosure of classified information, Judge St. Eve has agreed to grant the government’s motion to hear the testimony of the two agents in an in camera review, open only to the lawyers with proper classification.

The Chicago Tribune and the Center for Constitutional Rights filed motions challenging the government’s insistence upon a closed door hearing, arguing that First Amendment rights to access information relative to the free press and Sixth Amendment defendant rights to a public trial, apply to hearings as well as the trial phase and consequently are Constitutional impediments to the secrecy of in camera review. In finding the presence of an “overriding interest” in the securing of classified information relative to the protection of national security and physical protection of the ISA officers from retaliation, the court ruled that First and Sixth Amendment concerns were outweighed by security concerns. Although the ISA members will be permitted to use a non-public entrance into the court, the government’s motion to allow them to wear light disguise while in the closed court was denied.



[1] 18 U.S.C. App. 3 §1(a)-(b)
[2] United States v. Lee, 90 F. Supp. 2d 1324, 1326 n.1 (D. N.M. 2000)
[3] See also: Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362 (4th Cir. 1975), Finding that the judge was right to withhold classified information absent official declassification.
[4] 18 U.S.C. App. 3, §6