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United States v. Lindh

United States District Court for the Eastern District of Virginia, Alexandria Division

April 25, 2002, Decided ; April 25, 2002, Filed

Criminal No. 02-37-A



The matter is before the Court on the government's April 16, 2002 Motion for a  [*741]  Protective Order Regarding Detainee Interview Reports, pursuant to Rule 16(d)(1), Fed. R. Crim. P., and defendant's April 23, 2002 response thereto. 1

 [**2] I.

On February 5, 2002, defendant, John Phillip Walker Lindh, was charged in a ten-count Indictment with, inter alia, contributing services to al Qaeda, which the government alleges is a foreign terrorist organization founded and led by Usama Bin Laden. Thus, the government's investigation in this case involves both classified and unclassified materials related to the ongoing federal law enforcement investigation into al Qaeda. Such materials include the reports of interviews of detainees captured in Afghanistan and elsewhere who may have knowledge of al Qaeda or who may have been members of that organization and who are housed primarily at Guantanamo Bay, Cuba. The government has determined that all or portions of thirteen such reports 2 [**3]  are required to be disclosed to the defense. 3

 [**4] II.

Analysis of the government's request for a protective order relating to these interview reports appropriately begins with Rule 16(d), Fed. R. Crim. P., which provides that on a sufficient showing, district courts may "at any time" order that discovery or inspection be restricted. In determining whether such restriction is appropriate, district courts may consider, inter alia, "the protection of information vital to the national security." Rule 16, Fed. R. Crim. P., Advisory Committee Notes to 1966 Amendment; see also  Alderman v. United States, 394 U.S. 165, 185, 22 L. Ed. 2d 176, 89 S. Ct. 961 (1969). Of course, courts should take care to ensure that the  [*742]  protection afforded to such information is no broader than is necessary to accomplish the national security goals. In this regard, courts should be sensitive to less restrictive alternatives available to achieve this goal. See  Stone v. University of Maryland Medical Systems Corp., 855 F.2d 178, 180-82 (4th Cir. 1988) (remanding district court's decision to seal the entire record when less restrictive alternatives were available). And, in determining whether to accord protection to certain [**5]  materials, and the extent of such protection, courts should weigh the impact this might have on a defendant's due process right to prepare and present a full defense at trial. It is also important for courts to have in mind "the public's right of access to judicial records and documents," "which may be abrogated only in unusual circumstances." Stone, 855 F.2d at 182 (citing In re Knight Publication Co., 743 F.2d 231 (4th Cir. 1984)). This case presents precisely these unusual circumstances.

Indeed, given the nature of al Qaeda and its activities, and the ongoing federal law enforcement investigation into al Qaeda, the identities of the detainees, as well as the questions asked and the techniques employed by law enforcement agents in the interviews are highly sensitive and confidential. Additionally, the intelligence information gathered in the course of the detainee interviews may be of critical importance to national security, as detainees may reveal information leading to the identification and apprehension of other terrorist suspects and the prevention of additional terrorist acts. Thus, a protective order prohibiting the public dissemination of [**6]  the detainee interview reports will, in this case, serve to prevent members of international terrorist organizations, including al Qaeda, from learning, from publicly available sources, the status of, the methods used in, and the information obtained from the ongoing investigation of the detainees.

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198 F. Supp. 2d 739 *; 2002 U.S. Dist. LEXIS 8005 **


Disposition: Plaintiff's Motion for a Protective Order Regarding Detainee Interview Reports granted.


protective order, detainees, unclassified, interview, redacted, investigators, protected information, disclosure, courts, national security, ex parte, witnesses, media, memorandum of understanding, argues

Criminal Law & Procedure, Postconviction Proceedings, Expungement of Convictions, Governments, Courts, Court Records, Discovery by Defendant, Reports of Examinations & Tests, General Overview, Standards of Review, Harmless & Invited Error, Federal Government, Domestic Security