6 September 2002
Source: Digital transcript purchased from
Exemplaris.com for $37.00.
Other case documents: http://cryptome.org/usa-v-zm-cd.htm
This transcript was unsealed on August 29, 2002 along with related pleadings by Moussaoui and the government; see Docket No. 465:
http://notablecases.vaed.uscourts.gov/1:01-cr-00455/DocketSheet.htmlFor the reasons stated from the bench during a closed hearing, ORDER as to Zacarias Moussaoui denying [436-1] motion for Clarification Regarding the Applicability of the Protective Order for Unclassified But Sensitive Material and Local Criminal Rule 57 to Information that May Be Made Public in Congressional Proceedings; granting [455-1] Standby counsel's Motion to Unseal Expedited Motion of the United States; granting [464-1] Government's Motion to Seal Defendant's Pro Se Pleadings as to Zacarias Moussaoui (1). ORDERED that the Court's February 5, 2002 Protective Order will be VACATED once counsel for the United States have submitted a revised version governing the handling of "particularly sensitive discovery materials" for the Court's approval. ORDERED that pleadings #s 436, 454, 453, 459, 455, and the transcript be and are unsealed. [SEE ORDER FOR DETAILS] ( Signed by Judge Leonie M. Brinkema ) CopiesMailed: 08/29/02 (rtra, ) (Entered: 08/29/2002)
1
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
UNITED STATES OF AMERICA, . Criminal No. 01-455-A
.
vs. . Alexandria, Virginia
. August 29, 2002
ZACARIAS MOUSSAOUI, . 9:30 a.m.
a/k/a Shaqil, a/k/a .
Abu Khalid al Sahrawi, .
.
Defendant. .
.
. . . . . . . . . . .
TRANSCRIPT OF HEARING
BEFORE THE HONORABLE LEONIE M. BRINKEMA
UNITED STATES DISTRICT JUDGE
APPEARANCES:
FOR THE GOVERNMENT: ROBERT A. SPENCER, AUSA
BRIAN MILLER, AUSA
United States Attorney's Office
2100 Jamieson Avenue
Alexandria, VA 22314
and
DOUGLAS LETTER, ESQ.
JOHN TYLER, ESQ.
U.S. Department of Justice
Civil Division
601 D Street, N.W., Room 9106
Washington, D.C. 20530
FOR THE DEFENDANT: ZACARIAS MOUSSAOUI (pro se)
(APPEARANCES CONT'D. ON FOLLOWING PAGE)
(Pages 1 - 38)
COMPUTERIZED TRANSCRIPTION OF STENOGRAPHIC NOTES
2
1 APPEARANCES: (Cont'd.)
2 FOR THE DEFENDANT AS FRANK W. DUNHAM, JR.
STANDBY COUNSEL: Federal Public Defender
3 Office of the Federal Public
Defender
4 1650 King Street
Alexandria, VA 22314
5 and
EDWARD B. MAC MAHON, ESQ.
6 P.O. Box 903
107 East Washington Street
7 Middleburg, VA 20118
and
8 ALAN H. YAMAMOTO, ESQ.
108 N. Alfred Street, First Floor
9 Alexandria, VA 22314-3032
10
ALSO PRESENT: MICHAEL DAVIDSON, ESQ.
11
12 OFFICIAL COURT REPORTER: ANNELIESE J. THOMSON, RDR, CRR
U.S. District Court, Fifth Floor
13 401 Courthouse Square
Alexandria, VA 22314
14 (703)299-8595
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1 P R O C E E D I N G S
2 THE CLERK: Criminal Case 2001-455-A, United States of
3 America v. Zacarias Moussaoui. Will counsel please note their
4 appearance for the record.
5 (Defendant present.)
6 THE COURT: The defendant has just entered the
7 courtroom.
8 We'll hear now from counsel for the United States first
9 of all.
10 MR. MILLER: Good morning, Your Honor. Brian Miller
11 for the government, and with me are Douglas Letter and John Tyler
12 from the Department of Justice and also Michael Davidson from the
13 Joint Inquiry.
14 Your Honor, I have a motion -- I'd like to move them in
15 pro hac vice at this time.
16 THE COURT: I believe I've signed the paperwork for the
17 two Justice Department attorneys, and I'll certainly grant that
18 oral motion for Mr. Davidson as well.
19 MR. MILLER: Thank you. I have his paperwork here.
20 THE COURT: If you'd hand it up to Mr. Wood, please?
21 MR. MILLER: Thank you, Your Honor.
22 THE COURT: Now, Mr. Spencer, where are you?
23 MR. SPENCER: Yes.
24 THE COURT: All right. You're from the United States
25 Attorney's Office, because some of this is going to, I think,
4
1 address matters that you have raised as well.
2 MR. SPENCER: Yes.
3 THE COURT: All right, you're here.
4 Mr. MacMahon, you're standby counsel. You signed the
5 pleadings in this case. Are you the main spokesperson if standby
6 counsel have anything to say?
7 MR. MAC MAHON: Yes, Your Honor.
8 THE COURT: All right, that's fine. Let me just sign
9 this.
10 All right, now this is a sealed hearing, and as we all
11 know, sealed hearings are disfavored in criminal matters, and for
12 that reason, I'm only addressing the specific issues raised in
13 these motions and one sort of corollary issue that I think is
14 involved and nothing else. Anything else at this point would not
15 be appropriate in a sealed context.
16 I have before me this morning the expedited motion of
17 the United States for clarification regarding the applicability
18 of the protective order that this Court entered back in February
19 of 2002 as well as for clarification as to the applicability of
20 local rule 57 to the impending public hearings of the Joint
21 Inquiry into the events of September 11.
22 I also have standby counsel's motion to unseal the
23 expedited motion as well as a motion, in essence, to vacate the
24 protective order of February of 2002 and also relief from rule
25 57. That's my understanding of what is before the Court related
5
1 to this matter.
2 I have had a chance to review the pleadings as well as
3 the only response that I believe I received from Mr. Moussaoui on
4 these issues, and that was a document entitled Suicide Motion on
5 the WTC.
6 And, Mr. Moussaoui, if you would go up to the lectern,
7 please? Because one of the issues that runs through all of the
8 motions is the position of the defendant on this issue, and to be
9 honest with you, I cannot discern your exact position from the
10 pleading that you have filed. So do you or do you not object to
11 the public inquiry that's going to, I guess, start in early
12 September going into the way in which this case has been
13 investigated, going into information that may, in fact, be
14 directly relevant to your trial?
15 THE DEFENDANT: (Arabic spoken.) I will just before
16 making known my position, I would like to first hear the
17 different position of the government and the Joint Inquiry.
18 THE COURT: No, you've already got those -- you got
19 copies of all the pleadings, did you not?
20 THE DEFENDANT: Yes, I have. But I mean the oral
21 hearing today. If they are going to make any argument, I want to
22 hear first.
23 THE COURT: Well, I'm not sure we need any argument,
24 because the theme running through all of their papers is what is
25 your position. One of the concerns that's a legitimate concern
6
1 which the Court must have and which the government, at least the
2 prosecuting arm of the government must have is any danger to your
3 ability to have a fair trial by unduly prejudicing the public's
4 attitude towards you so that I can't get a fair and impartial
5 jury.
6 So your view as to whether or not you have an objection
7 to these hearings being public and this information that's been
8 described in these pleadings being discussed publicly is relevant
9 to this discussion, and I need to know. Now your standby counsel
10 have taken the position, which would appear to be --
11 THE DEFENDANT: Okay. I have a position I will tell
12 you about.
13 THE COURT: All right, what is your position?
14 THE DEFENDANT: So basically, as far as I am concerned,
15 I realize that what the government is doing, it's discreetly or
16 whatever trying to silence Congress to obtain information, and
17 they want to be able to dictate what exactly Congress will, will
18 receive. That's my understanding. Meaning that they are
19 extending the protective order to any statement that might want
20 to make any government employee.
21 So to this regard, I object, because like the standby
22 counsel have say, either the government should -- the Court
23 should declassify -- not declassify, but lift the protective
24 order completely, that's my position, because this protective
25 order at the moment, it's become a nonsense, because the
7
1 government have leaked numerous information to the press on many
2 occasion.
3 The government have launch the most vehement campaign
4 against me in the press since the beginning of September 11. At
5 the moment, they need to rebalance this by having people like
6 maybe the Congress, even though I am sure they are not in the
7 mood to help me, but to balance this cited opinion that the
8 government is, like, doing everything right and Moussaoui is a
9 great evil. Okay?
10 I'm being used in this country as a scapegoat for the
11 inefficiency of your government, and people want to look at it,
12 and the government want to, to prevent them. That's what they
13 are usually doing, the government, preventing people to know the
14 truth.
15 So I ask the Court to lift completely the protective
16 order and to dismiss the, the motion of the government. 7
17 THE COURT: All right. Thank you, Mr. Moussaoui.
18 Now, Mr. Spencer, I would like to hear from you,
19 because this is the protective order that you as the lead
20 prosecutor on this case asked the Court to enter, which I did
21 enter.
22 As you know, standby counsel have raised in their, in
23 their request to have that order vacated what appeared to the
24 Court to be legitimate concerns about, among other things, the
25 difficulty -- now we're not talking about classified information.
8
1 That's a different ball game. We're talking about broad,
2 unclassified in any respect discovery or discovery which the
3 government deems to be sensitive.
4 The difficulty that I'm having is that I think the
5 Justice Department has put itself in a difficult position,
6 because on the one hand, you're asking the Court to restrict or
7 in some cases seal information which other members of the Justice
8 Department are clearly putting out in the public record.
9 For example, we have, as you know, a pending motion to
10 continue to maintain under seal the cockpit recordings of Flight
11 93 and the other flight, and yet in the proposed testimony of
12 Mr. Mueller, I feel he goes into significant detail about the
13 very contents of those recordings.
14 Now you can't -- the Justice Department cannot at one
15 point be asking the Court to seal information and at the same
16 time the same department is giving that information out in
17 manners which get it into the public record. I think it's put
18 you as the prosecutor in a difficult position.
19 But you need to be able to articulate to me since the
20 defendant is no longer -- has clearly expressed that he is not in
21 favor of this protective order, so any concerns that you might
22 have as to the ability of the defendant to get a fair trial
23 vis-a-vis public knowledge about his case, I think, is
24 undermined, because the defendant understanding that danger is
25 prepared to have the order lifted and, and take the consequences
9
1 of that.
2 Is there any other interest that the prosecution has in
3 maintaining that order?
4 MR. SPENCER: There is, Your Honor.
5 THE COURT: All right. What is that?
6 MR. SPENCER: The primary reason we asked for the
7 protective order that governs sensitive but unclassified material
8 is to protect ongoing investigative efforts, and that's the sole
9 reason, Your Honor, for asking for that, not -- I mean, I think
10 it's a lesser reason or at least an equal reason that the fair
11 trial rights of the defendant would be protected, but
12 specifically, we sought that protective order to keep material
13 that couldn't in all fairness be classified from being
14 disseminated to the press, to the defense, and to the government.
15 I think candidly, Your Honor, that the cockpit
16 recordings on United Air Lines Flight 93 are not a particularly
17 good example of that, because I think that, as I understand it --
18 and it's more Mr. Novak rather than me who's been involved in
19 that -- that that is governed by the Code of Federal Regulations.
20 THE COURT: There's statutory authority for that, yes;
21 I agree with that. But still, if the Justice Department is
22 basically paraphrasing portions of those transcripts, I don't see
23 how you can properly in a principled manner stand up and say,
24 well, we want to use this information in a public context in
25 certain respects but not in others. It's -- I don't think you
10
1 can do that.
2 I think the government -- the Justice Department, in
3 essence, is waiving the legitimacy of that argument because of
4 the way in which you're proceeding in other fora.
5 MR. SPENCER: As I understand it -- and I can be
6 corrected, of course, by the Justice Department representatives
7 or by the Joint Inquiry representatives -- I don't know what
8 public use has been made, if there's any, of Director Mueller's
9 statements on that issue or any other before Congress, and if
10 that's what the Court is referring to, I'm not sure that he has
11 made a public statement about the content of Flight 93 on the
12 cockpit voice recorder.
13 THE COURT: Have you not read the draft, his draft
14 statement that was attached to the --
15 MR. SPENCER: Not in connection with these pleadings.
16 I believe I read it earlier.
17 THE COURT: Well --
18 MR. SPENCER: But I don't know that that's been a
19 publicly made statement.
20 THE COURT: Well, I don't think it's been made yet, but
21 it's obviously -- or it's on the verge of being made. That's
22 what was submitted to the Court as an attachment to the, the
23 emergency motion that Mr. Miller filed on behalf of the
24 Department. 10
25 MR. SPENCER: Let me suggest this, Your Honor. I think
11
1 the protective order for unclassified but sensitive material
2 still has a legitimate reason; that is, there will be material
3 going forward where we have investigation going into al Qaeda,
4 investigation that affects an ongoing war effort and an ongoing
5 investigative effort, where it can't fairly be classified but it
6 still should not be disseminated to the press.
7 What I would suggest, Your Honor --
8 THE COURT: Rule 57 takes care of that. We've got two
9 different issues here. One is we have this somewhat complex,
10 two-tiered protective order, and then we have rule 57. All
11 right?
12 The defense -- standby counsel have indicated the
13 difficulty they're having in trying not to violate any of the
14 Court's orders. As you know, if something is deemed sensitive by
15 the government and is conveyed to standby counsel as sensitive
16 information, then as I understand the order, they can't even
17 present that to an expert witness without getting my permission.
18 Now quite frankly, I've not signed a whole lot of
19 orders authorizing disclosure, so I have to assume either that
20 sensitive information hasn't been given to counsel or they
21 haven't been disclosing it extensively. But that's a convoluted
22 process.
23 It also puts the Court in the position of having to
24 constantly be reviewing what they're doing. It's ex parte, so
25 your office wouldn't know. It makes it extremely difficult for
12
1 them to work, as they've represented to the Court.
2 And what makes it even harder is we all know that there
3 is now in the public discourse about this case and the al Qaeda
4 investigation all kinds of information in the media every night,
5 some of which may or may not be classified, but it's getting out
6 there in various forms, and so it becomes difficult as human
7 beings, and they've articulated that in their motion: Gee, did I
8 learn about that particular inquiry from something I read that
9 was sensitive, or was it, did I just read it in The Washington
10 Post this morning?
11 I think the order makes things more difficult for them.
12 Rule 57 is clear on its face. None of the attorneys or their
13 offices, which would include the Department of Justice, can be
14 speaking to the press, can be giving documents or evidence to the
15 press. Rule 57 is clear on its face, and I think it protects
16 that.
17 Rule 57 also clearly says that it does not apply to
18 legislative proceedings, so to the extent that the United States
19 Congress feels it's in the best interests of everybody at this
20 time to conduct these hearings in public, I don't see anything in
21 rule 57 that gives me the authority to tell Congress they can't
22 do that.
23 But we have this order that you-all asked me to enter,
24 and I need to have you articulate for me -- and unfortunately,
25 you still haven't to my satisfaction -- at this point, given what
13
1 is already out there and given the difficulties that counsel have
2 in working with this material and given the fact that Congress
3 apparently is going to go ahead and have a public inquiry open to
4 the media and the general public starting within the next couple
5 of weeks, why that order is needed especially since we have rule
6 57.
7 MR. SPENCER: Well, Your Honor, again, I could just
8 repeat what I've said earlier. I think there is information in
9 this case for which we sought the protective order back in
10 January that is sensitive but can't fairly be classified.
11 What I would suggest is if there are particular items,
12 such as the cockpit voice recordings, that the defense wants to
13 make use of, to have excluded from that protective order on
14 sensitive and unclassified material, that they go to the Court
15 and ask that that be done.
16 I don't think now is the time to enter a blanket rule
17 that that information, which has been shared with the defense and
18 which has been shared with Mr. Moussaoui, should now be exempt
19 and be able to be disseminated to the media. I'm not sure rule
20 57, at least the way it's been observed in this Court up to now,
21 gives us enough protection, Your Honor, and I think as a result,
22 what we'll have to do is we'll have to go into the relatively
23 inflexible world of classifying everything that has a potential
24 impact on an ongoing investigation.
25 I think the protective order had a legitimate reason
14
1 from the beginning, to protect the investigative interests of the
2 United States in an ongoing time of war and when, and when we're
3 going forward in a law enforcement investigation, also, and I
4 think now we're subverting that, and I think you're holding the
5 prosecution arm to sins that may be committed by other branches
6 of government or by the Department of Justice.
7 THE COURT: But you're part of the Department of
8 Justice.
9 MR. SPENCER: Well, I realize that, Your Honor, but
10 also, I would ask that you allow Mr. Miller to address the
11 earlier question about whether there's any other legitimate
12 interest of the protective order staying in effect.
13 THE COURT: All right, Mr. Miller? I'm sorry, are you
14 going to be -- who was going to be the main spokesperson for the
15 Department?
16 MR. MILLER: Mr. Letter, please.
17 THE COURT: All right, Mr. Letter.
18 MR. LETTER: Your Honor, Douglas Letter from the United
19 States Department of Justice. I just wanted to correct one
20 thing. We -- I don't think Mr. Spencer meant to say sins of
21 other officers or parts of the Department of Justice. We have
22 not to this point disclosed anything. As you pointed out, what
23 we have said is we have a prepared statement by the FBI director,
24 a draft, that if there are open hearings held by the Joint
25 Inquiry Staff, then this is what Director Mueller would be
15
1 prepared to, to testify to. 15
2 As we pointed out, I think Mr. Spencer has properly
3 explained our main interest in retaining at least part of the
4 protective order. Our main concern was, I think, what you have
5 taken care of today, which is we did not want the defendant to be
6 able to argue that, that any pretrial publicity from hearings,
7 open hearings that Congress holds, to be used to argue that he
8 can't get a fair trial, and I believe, as I understood Your Honor
9 ruling, that that has now been completely waived by the, the
10 defense.
11 So as I say, the, the interests that Mr. Spencer
12 identified are still there in order to protect the government's
13 investigation, and once the waiver has taken care of the other
14 interests, that was our concern.
15 I also just wanted to, to briefly address one point
16 that Your Honor addressed when you said you have no authority
17 over Congress if they want to hold open hearings. I'm hearing
18 what you're saying as therefore, if there are government
19 officials who are called to testify in those hearings, Your Honor
20 is ruling they will not be violating rule 57 then if they answer
21 questions.
22 THE COURT: No, that's not what I'm saying.
23 MR. LETTER: Okay.
24 THE COURT: Because Justice -- at least Justice
25 Department employees, which would include the FBI and the DEA,
16
1 are covered by rule 57. You're part of the office of the
2 prosecutor.
3 MR. LETTER: Okay.
4 THE COURT: And for example -- and I'm not going to
5 edit Director Mueller's testimony, but I will tell you that my
6 view is that on page 2 of the draft, the parenthetical including
7 Moussaoui is an inappropriate comment which would violate rule
8 57. That's his opinion about the guilt of the defendant. That's
9 not proper for that to be stated publicly.
10 The indictment speaks for itself as to the Justice
11 Department's view about the defendant. But that kind of comment
12 is exactly the kind of thing that rule 57 was intended to
13 prevent. It is not informational. It adds nothing to the
14 discourse.
15 As I understand it, what the Hill is interested in
16 legitimately is what was done, why it was done or not done. But
17 the particular opinions -- and, you know, if you start getting
18 into various opinions, there are opinions both ways in this case.
19 But that to me would be a clear violation of rule 57, and I think
20 you need to go through that with care.
21 And as I said, I think there are other comments in
22 here, if you look at the, the comments starting on page 18, you,
23 you have -- you will make for Mr. Spencer his job extremely
24 difficult if you have Justice Department employees publicly
25 talking about things which the other arm of the Justice
17
1 Department is asking this Court to keep under seal.
2 MR. LETTER: Your Honor, then it seems to me we, we
3 have gotten the answer that we asked for from the Court. You are
4 ruling that the Justice Department people continue to be covered
5 by rule 57 --
6 THE COURT: Right.
7 MR. LETTER: -- and as they testify in Congress, they
8 continue to be covered by rule 57, and we will abide by that
9 order, and we will act accordingly, and we will, obviously, go
10 through that statement extremely carefully with rule 57 in mind.
11 And as I say, then that is the position we will take
12 before Congress, that rule 57 binds what we can testify to before
13 Congress.
14 THE COURT: All right. Mr. Davidson, so that I don't
15 trump your situation, why don't you come up here and tell me if
16 you feel that that's going to create any difficulty for the
17 inquiry.
18 MR. DAVIDSON: Thank you very much for hearing from us.
19 Yes, there is a concern that difficulties will be
20 created by the articulation which, which I just heard. The rule
21 plainly, as the Court indicated, does not apply to legislative
22 hearings or to legislative reports.
23 I can tell you that there is no interest that I've
24 discerned in the inquiry by the two committees in any commentary
25 by any Department of Justice officials, and these would be
18
1 principally officials of the Federal Bureau of Investigation who
2 were charged with conducting the investigation prior to
3 September 11, which is the branch of the inquiry that we're now
4 talking about, which is how the FBI responded to the information
5 that was available to it in that period of time in making
6 determinations about what kinds of investigatory routes to
7 pursue.
8 There's no interest in exploring what anyone now thinks
9 with respect to the strength of the indictment against the
10 defendant. This is an inquiry into how the government responded
11 to a circumstance in which it had investigatory tools and made
12 decisions about their application.
13 But for the, the Court in any way to indicate that the
14 rule applies to what witnesses may say in the course of a
15 Congressional proceeding does invite a set of circumstances in
16 which there may be recurrent returns to the Court as to whether a
17 particular question may be answered in compliance with the rule.
18 The traditional way and the way that our system of
19 government prescribes is that the conduct of legislative
20 proceedings needs to be within the province of the legislative
21 branch. There are rules that are applicable there. There are
22 rules which allow committees to close hearings if matters may
23 impinge on a government prosecution or on the reputation of
24 individuals.
25 These are, of course, though, discretionary judgments,
19
1 because there are balances that need to be struck, and one of the
2 important balances is whether the public exploration of any of
3 the historical facts here -- and for this branch of the inquiry,
4 I have indicated it is an inquiry in the period prior to
5 September 11 of the FBI's management of its responsibilities --
6 Congress needs to make determinations of whether those matters
7 are most appropriately done in a public setting or in a closed
8 setting, and involved in that is the fact that these hearings are
9 not only for the private information of the members of the
10 committee but for all other members of the Senate and House and,
11 importantly, for the public in determining whether reforms are
12 needed in the way in which our intelligence community, of which
13 the FBI has an important role, undertake responsibilities.
14 And so this matter is best left, I think, with the
15 plain language of the rule that the rule does not apply to
16 legislative hearings or to legislative reports, leaving it to the
17 executive branch, which is never reticent in this matter to raise
18 directly with a committee or here two committees of the Congress
19 a question whether a particular question, the use of a particular
20 document is best done in the closed settings which the committees
21 are authorized to vote to conduct.
22 Otherwise, the kind of needless friction that the
23 courts, Supreme Court and other federal courts, have indicated
24 should be avoided in inter-branch relations, we will have created
25 a circumstance in which we will be experiencing that friction
20
1 potentially over the next number of weeks.
2 This is in full recognition of the overwhelmingly
3 important task that is the responsibility of the Court to ensure
4 a fair trial in the proceedings before the Court but also an
5 urging to the Court that it recognize that the responsibilities
6 in the Congress to assure that it balances the requisites of open
7 and closed hearings, the need to consider fairness which will
8 occur here in the judicial branch, and weigh that against the
9 need for a public record which one hopes helps us all build an
10 intelligence community that is effective in the future.
11 And so we, I guess, the bottom line is the rule is
12 clear. For there to be any enlargement of the rule would create
13 significant inter-branch questions, and there is safety in the
14 language of the present rule.
15 THE COURT: I don't disagree with you. I'm not
16 changing the scope or the applicability of rule 57. I've had one
17 group, the standby attorneys want me to lift rule 57. I'm not
18 doing that. I am saying rule 57 is alive and well. It's in
19 place.
20 I'm also advising the Justice Department that you will
21 create significant problems for your prosecution team if certain
22 things are said. Now, for example, the opinion of the director,
23 that one parenthetical, which I don't think Congress from what
24 you've said to me is at all interested in, it adds no light to
25 what they did or didn't do, is unnecessary.
21
1 That's the kind of rhetoric that is absolutely
2 inappropriate, and the problem is you can't have a Justice
3 Department official making an editorial comment about the merits
4 of the case, which in spirit that's a clear violation of the
5 rule, and being protected from the rule because he made it in a
6 legislative forum. That would gut the rule entirely, since we
7 know the media of the world will be watching that inquiry.
8 So where there's an unnecessary statement that you-all
9 are not even interested in that would violate the spirit of the
10 rule, I think the Justice Department must proceed with great
11 care, and if we have to address it down the road, we will.
12 The other problem, though, that I think is a legitimate
13 concern, now whether it's rule 57 or something else, is again, if
14 information is volunteered -- and again, at least as I read the
15 Mueller statement, this information is not necessary to anything
16 you're investigating -- but when I have the prosecutor asking
17 me -- and I've got media who want to intervene in that motion --
18 when I have the prosecution saying to me, "We want the cockpit
19 recordings sealed. You can play them in court, Judge, but we
20 want it sealed so the media don't get them," etc., etc., and at
21 the same time I've got the director of the FBI paraphrasing in
22 some detail from those recordings, that's unacceptable.
23 So either the Justice Department will have a consistent
24 approach that these are very sensitive and they're not going to
25 be publicly disseminated outside of a very restrictive context,
22
1 or they're open. And that's really in part why I wanted to make
2 sure we had a hearing. I could have ruled on these papers, I
3 think, from the bench -- from my office, but I wanted everyone to
4 hear this is a subtle and difficult issue, this balance between
5 what is proper subject matter for a legitimate inquiry which the
6 public has a right to hear versus taking inconsistent positions
7 about what should be sealed and also trying to undermine what I
8 think are important policy concerns behind a rule like rule 57.
9 I don't intend in any way to interfere with what
10 Congress is interested in getting, because it's my understanding
11 what you want to get would, in fact, really not violate rule 57,
12 and I hope that is correct.
13 But in any case, that's how I'm leaving it. I am not
14 going to -- probably haven't clarified the order that much. The
15 original protective order I am going to vacate. I am going to
16 permit the United States to submit to the Court a revised version
17 that addresses only what is called the sensitive information,
18 because the order is too complex now. Clearly, there's no reason
19 to have the order apply to totally unclassified, nonsensitive
20 material, as it currently does. 22
21 Rule 57 is in place, so neither, neither defense
22 counsel or the government can go off and start publishing
23 exhibits or whatever to the press. The -- but I am going to try
24 to balance the legitimate concerns of the prosecution in
25 protecting ongoing criminal investigations by having some
23
1 restrictions on what can be done with the sensitive but
2 nonclassified information that is being turned over. I do not
3 want to see the flow of discovery slowed down or made more
4 difficult. So that's how I'll balance that.
5 And, Mr. Spencer, the ideal way of drafting that order
6 would be to work with standby counsel to see if you can get a
7 mechanism that everyone can live with in an effective manner.
8 Until such time as the new order goes into effect, the
9 old one stays in place. In other words, I'm not opening the
10 floodgates to start having unfettered handling of that material.
11 All right?
12 Mr. Spencer, can you get that done in the next couple
13 of days?
14 MR. SPENCER: If I could ask a follow-up question, Your
15 Honor?
16 THE COURT: Yes.
17 MR. SPENCER: As I understand it, the material that is,
18 we've designated sensitive but unclassified, that's still going
19 to be covered under a revised order?
20 THE COURT: Yes.
21 MR. SPENCER: All right. Otherwise, we would have to
22 reevaluate discovery that was --
23 THE COURT: I understand that, and I don't want that to
24 happen. All right? But the current order as it's written with
25 this two-tiered approach, etc., to me is now -- makes no sense.
24
1 It's too complicated. And hopefully, you consulting with standby
2 counsel can figure out a more streamlined and better way of
3 handling that.
4 MR. SPENCER: All right. May I ask the Court an
5 additional question?
6 THE COURT: Yes, sir.
7 MR. SPENCER: Is the -- in your view, is the
8 intelligence community covered by rule 57, Your Honor, as we go
9 forward into these prospective hearings?
10 THE COURT: They're not part of -- the intelligence
11 community is not part of the Department of Justice. I mean, if
12 you're asking the Court for a gag order for government agents,
13 that's beyond what we're looking at today.
14 MR. SPENCER: I don't mean to ask that at all, Your
15 Honor. I just want some guidance as we go forward.
16 THE COURT: I think each intelligence community has to
17 be guided by its own requirements as to what can and cannot be
18 disclosed in a public context, but I will say this: that if you
19 have NSA or CIA people publicly divulging at these hearings
20 information that you're calling classified that these attorneys
21 can't work with in a fairly unfettered manner, now that again is
22 inconsistent. That is the danger with these matters going public
23 at this particular time.
24 MR. SPENCER: Your Honor, I'm in complete agreement
25 with all the dangers of having public hearings before the
25
1 Congress. I couldn't agree with you more. And I don't think
2 that's what we're talking about. I don't think we're talking
3 about classified information, but I'm talking about your
4 objection to comments you call editorial if made, for instance,
5 by an official at one of the intelligence agencies. Would that
6 be covered by rule 57?
7 THE COURT: I'm not going to give you an advisory
8 opinion, but I can just tell you they're not literally covered by
9 the rule, because they're not part of the law firm.
10 MR. SPENCER: All right.
11 THE COURT: The Justice Department is the law firm
12 representing the United States.
13 MR. SPENCER: Very well, Your Honor. Thank you.
14 THE COURT: All right? Now, so just to recap, I'm
15 granting in part and denying in part standby counsel's motion to
16 vacate the protective order of February, I think it's February
17 2002. All right? We're going to, we're going to make that order
18 somewhat less restrictive and narrower. And hopefully, you can
19 all work out the language of that.
20 Rule 57 is not being lifted. It's in place, and it
21 applies to the Department of Justice, and it applies to the
22 defense team. All right?
23 And, Mr. Davidson, you wanted to say something or ask
24 something?
25 MR. DAVIDSON: Well, I, I would ask the Court's
26
1 clarification in, in this respect: It is, it is perfectly so
2 that testimony by the director, which may be testimony first
3 given in a closed session at one level of classification and then
4 testimony in an open session in an unclassified form, the
5 director is fully within his province to examine that testimony
6 carefully to determine whether he would be commenting on the
7 guilt or innocence of, of the defendant, and I actually assumed
8 that was an editorial mistake, that that was not intended to be
9 in the proposed public version of that, of that testimony.
10 But if anything that is said here could potentially be
11 taken by the Department of Justice to be a ground upon which any
12 official of the Federal Bureau of Investigation -- and this is
13 focused principally on the FBI -- to decline to testify before
14 the committees on the ground that rule 57 governs public
15 commentary by anyone within the Department of Justice or to seek
16 to carve out lines of inquiry that the members may determine are
17 important to, to make the assessment of the responsiveness of the
18 FBI to the information that was before it from the period that
19 runs from August 15 to September 11, then, then there's a high
20 likelihood that we'll all be back before the Court, and the Court
21 would be put into the position of ruling on particular lines of
22 inquiry and questions by the Congress in that period of, of time.
23 THE COURT: Mr. Davidson, I'm here the whole month of
24 September. I hope it doesn't come to that, but if it does, I'm
25 more comfortable dealing with specific issues when they arise
27
1 rather than ruling in the abstract and giving basically advisory
2 opinions.
3 I mean, I understand that's in some essence how this
4 came to me in the first place. When the government asks the
5 Court to clarify an order which the government actually submitted
6 to the Court, it's always problematic.
7 I'm not going to get into that problem unless it
8 arises. I'm not vacating -- rule 57 says what it says. Probably
9 almost everyone in this room is a lawyer and can figure out what
10 it says, but I would expect again that both the members of
11 Congress and the Justice Department are acting in proper good
12 faith in this public hearing.
13 It should not be used as a vehicle to try to poison the
14 public community about Mr. Moussaoui, who has a right to a fair
15 trial, nor should it be used as a means to hide any errors or
16 mistakes that might have been made. I think it can be done
17 without a problem if it's done in the right spirit.
18 If a problem arises, you can try to get me by -- I do
19 phone conferences all the time to save you a trip across the
20 river, but I'm not going to rule any more than I already have.
21 Rule 57 is in place. It says what it says. I'm not vacating it.
22 Rule 57 does say it does not preclude the holding of
23 hearings or the lawful issuance of reports by legislative,
24 administrative, or investigative bodies. It says what it says.
25 We can address it in a more concrete manner down the road. All
28
1 right?
2 MR. DAVIDSON: I think I've exhausted my opportunity
3 to --
4 THE COURT: There's one more, there's one more issue.
5 This hearing has been under seal, and all the motions connected
6 with it were under seal. The defense -- standby defense counsel
7 have argued, I think with good legal basis, that really none of
8 this needs to be under seal. As a courtesy, because I was
9 dealing with prospective testimony and prospective hearings, I've
10 kept it under seal.
11 My own view, unless there's a strong objection, is that
12 with the exception of the proposed testimony of Director Mueller,
13 which I think should not be publicly disseminated, because it's
14 proposed, it hasn't happened, and I'd be perfectly willing to
15 also seal any communications between Congress and the Justice
16 Department, because some of those letters were also included as
17 attachments, but with the exception of the attachments to the
18 United States' emergency motion, I'm strongly inclined and I
19 think the case law would actually compel that both the transcript
20 of this hearing as well as all the pleadings filed should be
21 unsealed.
22 Have you from your standpoint any objection to that?
23 MR. DAVIDSON: No. Our, our letters for which we did
24 request confidentiality were letters about prospective hearings,
25 and the Court has indicated a recognition that those were
29
1 tentative for the purpose of establishing a dialogue with the
2 Department and it should be to the members to announce when they
3 are holding hearings and what the topics will be.
4 I should note that in the, one of the documents filed
5 by standby counsel, there is the quotation of the very passage
6 from the proposed testimony.
7 THE COURT: Yes. We would redact that as well. But
8 other than that, you have no -- from the standpoint of the Hill,
9 you have no objection to this --
10 MR. DAVIDSON: No. And I think consistent with our
11 position, we think that the Court needs to determine which
12 proceedings here are open and closed, as we believe that Congress
13 needs to do that there.
14 THE COURT: All right. I'll hear from the United
15 States, from the Justice Department. Mr. Letter, any objection?
16 MR. LETTER: No, Your Honor, with just one minor thing.
17 As you've said, the statement of the -- the proposed statement of
18 the FBI director would remain under seal. Remember, when you
19 said the transcript would be open, Your Honor has referred to
20 parts of that statement that are problematic. So with the
21 minor --
22 THE COURT: We'll seal that from the transcript.
23 MR. LETTER: That would be fine, Your Honor.
24 THE COURT: All right. You understand these
25 transcripts, we're doing what was done in the McVeigh case. The
30
1 transcripts are publicly available on a website within about two
2 hours of the close of the hearing. So, I mean, it will be out
3 quite early today, and that's why I'm making sure everybody has a
4 chance to let me know if you have a problem with this matter
5 being unsealed.
6 MR. LETTER: Right. So Your Honor will delete those
7 couple of --
8 THE COURT: We'll go through the transcript to make
9 sure that that's been taken care of, so that my intention would
10 be when I finish court this morning, would be to enter an order
11 that unseals these pleadings with the exceptions that we've
12 talked about, that is, the attachments to your emergency
13 pleading, and we'll take a second and review them again and make
14 sure there's no reference other than the one we noted in standby
15 counsel's papers to anything inappropriate, and then it will all
16 be out.
17 MR. LETTER: And the transcript --
18 THE COURT: And the transcript.
19 MR. LETTER: Your Honor, we have no objection to what
20 you've announced.
21 THE COURT: Mr. Spencer, I know you're the other --
22 you're still part of the Justice Department, but do you have any
23 independent concern about unsealing this?
24 MR. SPENCER: None, Your Honor. Thank you.
25 THE COURT: All right, thank you.
31
1 And, Mr. MacMahon, I don't think you-all do.
2 MR. MAC MAHON: No, we don't, Your Honor.
3 THE COURT: All right. Did you want to be heard on
4 something else, too?
5 MR. MAC MAHON: Just very briefly, Your Honor.
6 THE COURT: All right.
7 MR. MAC MAHON: And we appreciate the Court's ruling
8 with respect to rule 57 and have abided by it and will continue
9 to as well, but what I'm, what I'm concerned about is protecting
10 the record in the sense that the government says that there have
11 been no disclosures in response to your question about, for
12 example, the cockpit recorder, and there have been all of these
13 disclosures already. There has been, if you read the
14 correspondence, substantial documentary production from the FBI
15 and the CIA and other people to the Congress.
16 THE COURT: Ah, but that was all done in a sealed or
17 closed environment. And I understand there's now a problem with
18 leaks, but I do not think it is unreasonable to expect that
19 especially members of intelligence committees will keep that
20 information sacrosanct, and the fact that it's leaked out in my
21 view is not a waiver or some misconduct by the Justice
22 Department.
23 MR. MAC MAHON: And I'm, and I'm not suggesting that at
24 this time, Your Honor, but what I, what I do want to preserve for
25 the record is that unbeknownst to standby counsel and to
32
1 Mr. Moussaoui, if this trial hadn't been continued, we would have
2 had parallel hearings in this Court and in the Congress, and the
3 parallel situation of having Oliver North tried during the
4 Iran-contra hearings would create such a problem in terms of jury
5 selection and other things that it would just be hard to even
6 fathom how the Court would deal with that issue of nationally
7 televised hearings occurring at the same time.
8 That may happen again here as to what we're dealing
9 with, and what I want to be sure of is that the Court understands
10 that by asking to have the protective order waived so that we can
11 deal with our witnesses in a much easier fashion, we are not
12 consenting or waiving any argument as to what prejudice may have
13 already occurred from the release of all of this information in a
14 way that it ends up in the public domain.
15 THE COURT: All right.
16 MR. MAC MAHON: We don't know of any way to stop a
17 Congressional hearing from taking place, and we know that
18 Mr. Moussaoui has no objection to that, and we fully respect
19 that, but just so that the record is clear, if there's prejudice
20 that occurs to Mr. Moussaoui as a result of any of this
21 information becoming public and testimony being made up on the
22 Hill, questions such as Director Mueller's being asked and
23 answered up on the Hill, we reserve the right completely to bring
24 that back to the Court's attention for whatever relief there may
25 be.
33
1 THE COURT: All right. Well, it goes without saying
2 that what is happening on the Hill will have a -- may have a very
3 big impact on this case for another reason, and that is that all
4 these people who are testifying under oath are creating
5 additional Jencks Act material. Those statements under oath are
6 going to be available to standby defense counsel and the
7 defendant.
8 To the extent that they are inconsistent with what that
9 witness might or might not say at trial, they are definitely
10 material that can be used for impeachment, and that's the other
11 reason why there's always a very significant danger when there
12 are these parallel proceedings, and the government -- the various
13 branches of the government have to think through the wisdom of
14 those approaches.
15 But it's not for me as the trial judge at this point to
16 start ruling, as I said, giving all sorts of advisory opinions.
17 You're correct, the record is out there that if after the fact,
18 depending on what happens ultimately in this case, you may have
19 appellate issues that would be very legitimate, but all I can do
20 at this point is to put responsible members of the government on
21 clear notice as to the dangers and risks that are out there, and
22 you're all going to proceed on your own. As long as you don't
23 violate any orders or rules of this Court, I'm not going to have
24 anything to say.
25 MR. MAC MAHON: And I appreciate that, Your Honor. I
34
1 know when you said appellate issues, we may -- what I -- the
2 issues we are trying to preserve may be issues that we bring to
3 your attention --
4 THE COURT: Well, then --
5 MR. MAC MAHON: -- in terms of other relief at another
6 time.
7 THE COURT: You can do that at another time. All
8 right?
9 MR. MAC MAHON: Thank you, Your Honor.
10 THE COURT: Now there's one last thing. Mr. Moussaoui,
11 you have -- this is not directly related to this matter, it's
12 indirectly related, but I need to tell you since you're here in
13 court, you are, as I have said many times before, an obviously
14 intelligent man, and you write very well, but I have to tell you
15 that I am granting the government's motion to keep all of your
16 pleadings under seal from here on out unless you tone down the
17 rhetoric and simply address what the real issue is.
18 Now the reason I had to have this hearing today in part
19 was that in the four- to five-page pleading that you wrote as
20 your response to these motions, I could not decipher your clear
21 position on whether you wanted these matters aired in public or
22 not.
23 Your rhetoric about the United States, about jihad,
24 about all of this stuff, you've said it a million times, but
25 you're wasting my time having to read those pages, you're wasting
35
1 your time writing it, and the result is your pleadings will not
2 be unsealed unless you confine them to proper, lawyer-like
3 rhetoric. If you have a request, state it clearly, without the
4 editorial comments, and I'll put that pleading out on the public
5 website.
6 But I find that you have abused your right to be a pro
7 se litigant by putting things in pleadings that I would never
8 permit an attorney to do. You have damaged your own case, as I
9 have told you dozens of times, and it will not be permitted any
10 longer. You can continue to write that way if you want to, but
11 your pleadings will remain under seal, and then the only thing
12 that the public will see are my orders resolving the ruling --
13 the motion.
14 If you want your motions to be read by the public,
15 you're going to have to write them in a proper manner. Do you
16 understand what I have just said to you?
17 THE DEFENDANT: I understand what you are trying to do.
18 You are trying to censure me. The government can redact my
19 motion if it doesn't like the message I am conveying to my
20 people. That's a thing that they are able to do. So there's no
21 reason for you to keep under seal my motion.
22 The fact of the matter, it's the government, despite
23 the rhetoric I use, I raised some relevant issue in my, in my
24 motion, and the proof is that you have addressed in one of your
25 order the fact that the government is misleading this country,
36
1 saying that they didn't investigate the xdesertman e-mail
2 address. Okay? So that's what is at stake here.
3 Like you've just dealt with the government attempt to
4 silence Congress, the government attempt to silence me, that's
5 what's going on. So I will not tone down my rhetoric, and you
6 can redact if you want to redact. That's open to you. But your
7 threat will not, will not bear with me.
8 THE COURT: All right. Well, I'm just saying that
9 you're silencing yourself, and no one, you or any other litigant,
10 has a right to send a message to your people. Your job if you're
11 filing a pleading in this Court is to request appropriate relief,
12 and, you know, you've won some of your requests recently, but
13 they're not going to be publicly seen, I'm not taking the time to
14 redact your pleadings, and I'm not going to ask the government to
15 do it.
16 So you'll have to decide whether you want to write
17 straightforward, clear requests, motions, whatever, and if you
18 don't, I'm certainly going to read them, but they're not going to
19 be out on the website. All right, that's the ruling.
20 THE DEFENDANT: One point: There's no reason why you
21 should suppress if you in your, in your quote from, when you
22 enter, you say God Bless America or something like that, there's
23 no reason why I should not be permitted to include in my
24 statements some verse of the Koran.
25 If your own specificity of certain statement, when I
37
1 call a certain action against your government, that's something I
2 can alleve (sic), but on the verse of the Koran, I have a freedom
3 of the First Amendment, freedom of religion, and I'm entitled to,
4 to include in my motion some relevant verse of the Koran to, to
5 make understand where my thought process is coming from, because
6 certain action are dictated in my defense by my beliefs.
7 So to you, like, in a blanket manner to try to, to
8 suppress me, it's, it's unwise in a sense. You should just see
9 case by case. That's all I have to say.
10 THE COURT: All right, Mr. Moussaoui. Well, I've made
11 it clear to you that we don't invoke the deity in any of our
12 rulings, simply to open and close court, and I'm not going to
13 have, as I said, your pleadings any longer with all the
14 additional and unnecessary rhetoric. So you decide how you want
15 to proceed.
16 All right, that completes everything unless anyone has
17 anything else related to these motions.
18 Mr. Spencer?
19 MR. SPENCER: No, Your Honor. Thank you.
20 THE COURT: All right, the defendant is remanded at
21 this time, and we'll recess court. Thank you.
22 (Which were all the proceedings
23 had at this time.)
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1 CERTIFICATE OF THE REPORTER
2 I certify that the foregoing is a correct transcript of the
3 record of proceedings in the above-entitled matter.
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Anneliese J. Thomson
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