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:


For 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)

                        UNITED STATES DISTRICT COURT
                            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
                        UNITED STATES DISTRICT JUDGE
                                   BRIAN MILLER, AUSA
                                   United States Attorney's Office
                                   2100 Jamieson Avenue
                                   Alexandria, VA 22314
                                   DOUGLAS LETTER, ESQ.
                                   JOHN TYLER, ESQ.
                                   U.S. Department of Justice
                                   Civil Division
                                   601 D Street, N.W., Room 9106
                                   Washington, D.C. 20530
                              (Pages 1 - 38)

 1   APPEARANCES: (Cont'd.)
        STANDBY COUNSEL:           Federal Public Defender
 3                                 Office of the Federal Public
 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
 8                                 ALAN H. YAMAMOTO, ESQ.
                                   108 N. Alfred Street, First Floor
 9                                 Alexandria, VA 22314-3032
                                   U.S. District Court, Fifth Floor
13                                 401 Courthouse Square
                                   Alexandria, VA 22314
14                                 (703)299-8595

 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, 

 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 

 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 

 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 

 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.  

 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 

 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 

 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 

 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 

 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 

 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 

 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 

 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, 

 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 

 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 

 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, 

 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 

 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. 

 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, 

 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 

 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.  

 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 

 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 

 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 

 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 

 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 

 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 

 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.

 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 

 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.

 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 

 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 

 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, 

 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 

 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.)

 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. 
                                       Anneliese J. Thomson