U.S. v. Hashmi

• Decision Date: 16 January 2008
• Docket Number: No. 06 Cr. 442 (LAP).,06 Cr. 442 (LAP).
• Court: U.S. District Court — Southern District of New York
• Parties: UNITED STATES of America v. Syed HASHMI, a/k/a "Fahad," Defendant.

621 F.Supp.2d 76

UNITED STATES of America v. Syed HASHMI, a/k/a "Fahad," Defendant.

No. 06 Cr. 442 (LAP).

United States District Court, S.D. New York.

January 16, 2008.

COPYRIGHT MATERIAL OMITTED

Edward Casey O'Callaghan, Iris Lan, Lisa Anna Baroni, Brendan Robert McGuire, U.S. Attorney's Office, Southern District New York, New York, NY, for Plaintiff.

Khurrum Basir Wahid, Sean Michael Maher, Wahid Vizcaino & Maher, LLP, New York, NY, for Defendant.

MEMORANDUM AND ORDER

LORETTA A. PRESKA, District Judge.

Before the Court are motions by Defendant Syed Hashmi challenging the constitutionality of (i) the Classified Information Procedures Act, 18 U.S.C.App. 3, § 1, et seq. ("CIPA"), (ii) requiring his attorneys to obtain a security clearance prior to engaging in discovery, and (iii) the special administrative measures ("SAMs") imposed by the Acting Attorney General pursuant to 28 C.F.R. § 501.3, which place certain limitations on communications between the Defendant and his attorneys.¹ Defendant's motions are denied for the reasons set forth below.

I. Background

A. The Indictment and Arrest

On May 24, 2006, Syed Hashmi was charged, in a four count indictment, with conspiracy to provide material support to al Qaeda (Count One); substantive material support to al Qaeda (Count Two); conspiracy to make or receive a contribution of funds, goods or services to, and for the benefit of al Qaeda, in violation of the International Emergency Economic Powers Act (Count Three); and a corresponding substantive charge (Count Four). See 18 U.S.C. § 2339B; 50 U.S.C. § 1705(b).

On June 6, 2006, the Defendant was arrested at Heathrow Airport, outside of London, on a provisional arrest warrant issued on the Indictment which was executed by United Kingdom authorities at the United States's request. On or about May 3, 2007, the Defendant was ordered extradited to the United States. He was turned over to the custody of the United States on May 25, 2007, and arraigned on May 29, 2007.

B. The Status of Discovery

There has been a limited amount of discovery in the case so far. The Government produced non-classified discovery to the Defendant in June 2007, along with a supplemental production in October 2007. These productions included documentary evidence, such as telephone records, as well as surveillance photographs and videos, items seized from the Defendant at the time of his arrest, and statements made by the Defendant at his arrest. (Gov't CIPA Mem. at 4-5.)²

The Government proffers that there will be classified information that is discoverable. (Id. at 5.) However, before discovery can proceed, the Government asks that defense counsel first obtain a "Top Secret" security clearance in order to provide for the handling of the classified material. Toward this end, the Government has proposed a protective order that would govern this process. In response to the request, Defendant submitted the instant motion.

C. The Special Administrative Measures

The Defendant has been held at the Metropolitan Correctional Center in New York since May 25, 2007. His conditions of confinement are governed by restrictions put in place by the Attorney General in June 2003 pursuant to 28 C.F.R. § 501.3 (providing procedures for the issuance of special administrative measures "SAMs" reasonably necessary to protect persons against the risks of acts of violence or terrorism).

On October 29, 2007, Acting Attorney General Peter D. Keisler found that there was a substantial risk that defendant-Hashmi's communications could result in death or serious bodily injury to others and requested that the Bureau of Prisons ("BOP") implement SAM restrictions pursuant to 28 C.F.R. § 501.3. Acting Attorney General Keisler's findings were based on (1) the Defendant's former membership in an Islamic fundamentalist organization whose members promote the overthrow of Western Society; (2) the Defendant's willingness to allow co-conspirators to store gear in his apartment that he knew was destined for al Qaeda's insurgency forces in Afghanistan; (3) the Defendant's willingness to allow a co-conspirator to use his cellular phone to contact other al Qaeda supporters, including Omar Khyam who was recently convicted of conspiring to bomb targets in the United Kingdom; and (4) the Defendant's post-arrest statements indicating an intention to kill U.S. soldiers. (Gov't SAM Mem. at 3.)³

On November 6, 2007, Defendant's attorneys were notified that the SAMs had been implemented by the BOP. They were also advised that they were required to agree to abide by, though not endorse, the provisions laid out in the Keisler Memorandum calling for the SAMs. In particular, the Defendant objects to the following aspects of the provisions: (1) giving the BOP discretion to make attorney visits "contact" or "non-contact"; (2) preventing the Defendant from speaking to a defense investigator without his attorney present; (3) preventing the Defendant from speaking to his attorney's staff on the telephone, if the attorney is not a participant in the conversation; (4) requiring a precleared translator to translate any documents that defense counsel wants to provide the Defendant; (5) preventing the Defendant from communicating with the news media; and (6) recording conversations between the Defendant's cell and that of other inmates. (Def. SAM Mem. at 9-11.)⁴

On November 5, 2007, Mr. Khurrum Wahid, the Defendant's attorney, was notified that Mr. Hashmi was subject to these Special Administrative Measures. As a precondition to meeting with his client, Mr. Wahid was asked to sign the seventeen page memorandum enumerating the SAMs and to execute an acknowledgment and affirmation of receipt of the SAMs. After refusing to do so, Defendant, through Mr. Wahid, brought the instant motion. As it stands, Mr. Wahid is currently barred from meeting or speaking with Mr. Hashmi until he executes the SAM acknowledgment affirmation. (Wahid Aff. ¶¶ 5-6.)⁵ The Court, however, with the Government's consent, has allowed Mr. Wahid to meet with his client for short periods of time before oral argument on these questions.

II. Discussion

A. The Constitutionality of CIPA

Defendant argues that CIPA is unconstitutional both on its face and as applied to him because its notice and hearing provisions impose "unconstitutional burdens" on the defense. (Def. CIPA Mem. at 2.) He objects to two sections of CIPA in particular. Section 5 of CIPA requires the Defendant to provide notice, to the United States and the Court if he "reasonably expects to disclose or cause the disclosure of classified information." Section 6 provides a mechanism for holding a hearing, possibly in camera, for making determinations concerning the use, relevance or admissibility of classified information that would otherwise be made during the trial or pretrial proceeding. Defendant argues that these provisions, taken together (1) unfairly require him to preview his case to the Government;(2) force him to make a premature decision about whether to take the stand, infringing on his right to "testify in his own defense without penalty;" and (3) deny him his Sixth Amendment right to confront the witnesses against him. (Def. CIPA Mem. at 2-12.)

1. Background of CIPA

None of these arguments has merit. CIPA was a legislative response to the problem of "graymail," whereby a defendant "threatens to reveal classified information during the course of his trial in the hope of forcing the government to drop the criminal charge against him." United States v. Anderson, 872 F.2d 1508, 1514 (11th Cir.1989); United States v. Pappas, 94 F.3d 795, 799 (2d Cir.1996). CIPA was designed "to reconcile, on the one hand, a criminal defendant's right to obtain prior to trial classified information and introduce such material at trial, with, on the other hand, the government's duty to protect from disclosure sensitive information that could compromise national security." United States v. Libby, 453 F.Supp.2d 35, 37 (D.D.C.2006). The statute is a procedural tool allowing a court to make rulings on admissibility and relevance before the commencement of trial. Id.

The constitutionality of the statute has been tested repeatedly and uniformly upheld. The Court of Appeals has sustained the constitutionality of the pretrial notification requirements. United States v. Wilson, 750 F.2d 7, 9 (2d Cir.1984) ("We see no constitutional infirmity in the pretrial notification requirements of Section 5."). Scores of courts have concluded the same. See, e.g., United States v. Bin Laden, S(7) 98 Cr. 1023(LBS), 2001 WL 66393, at *4 (S.D.N.Y. Jan. 25, 2001); United States v. Yunis, 924 F.2d 1086, 1094-95 (D.C.Cir.1991). Defendant does not attempt to distinguish Wilson, which would seemingly end this Court's inquiry. But a few words are in order to address Defendant's more specific arguments.

2. CIPA Does Not Violate "The Separation of Powers"

Defendant argues that the notice and hearing requirements of Sections 5 and 6 "impose unconstitutional burdens on the defense" in violation of "the separation of powers." (Def. CIPA Mem. at 2). The argument is not fleshed out, but construing it as a Due Process challenge, the Court rejects it. The burdens CIPA imposes on the Defendant are also imposed on the Government. See, e.g., United States v. Ivy, No.Crim. A. No. 91-00602-04, 1993 WL 316215, at *5 (E.D.Pa. August 12, 1993) ("CIPA burdens are not one-sided, but rather are carefully balanced"); United States v. Poindexter, 725 F.Supp. 13, 32 (D.D.C.1989) (CIPA burdens not one-sided).

3. CIPA Does Not Violate Defendant's Fifth Amendment Privilege Against Self-incrimination

CIPA Section 5's pretrial notification requirement likewise does not infringe on a defendant's privilege against self-incrimination. (See Def. CIPA Mem. at 6-12.) Section 5(a) requires the defendant to notify the Government and the Court only if he "reasonably expects to disclose or cause the disclosure of classified...