28 October 2000
Source: Public records, Southern District of New York.

See related court docket: http://cryptome.sabotage.org/qaeda102000.htm

This is one of several status reports in the case files. The issue of access to classified materials and security clearances for defense counsel continued for several months, with one defense counsel refusing to obtain security clearance from the Department of Justice, as outlined in the court docket. More documents on this are forthcoming here.

[5 pages.]

[DOC] #49

U.S. DISTRICT COURT
FILED
APR 14 1999
S.D. OF N.Y.

Hon. Leonard B. Sand
United States District Judge
United States Courthouse
500 Pearl Street
New York, New York 10007

Re: United States v. Usama Bin Laden, et al.,
(S4) 98 Cr. 1023 (LBS)

Dear Judge Sand:

The Government respectfully submits this letter to provide a status update for the Court and counsel in advance of the conference on Thursday, April 15, 1999, at 9:30 a.m.

I. The Superseding Indictment

As the Court and the parties are aware, the Government had hoped to return a superseding Indictment prior to the conference. However, it now appears that it will take approximately 6 weeks to return a superseding Indictment which will be the Government's best effort at returning a trial Indictment as is possible given pending translations and the need to address whether certain classified information will be available as trial evidence. The Government expects to return a superseding Indictment in early June and would thus suggest a conference in the latter part of June for arraignment on the superseder. The Government will speak with defense counsel in advance of the conference to see if there are mutually convenient dates to suggest to the Court.

II. Status of Discovery

The Government has now produced substantially all of the materials seized in the searches conducted in Kenya, Tanzania, and the Comoros Islands. The materials produced to date consist of approximately 40,000 pages of materials. Some additional materials have been obtained since the time of the first conference in this case and many of those materials have been produced but the Government will continue to review the materials seized in order to ensure that its continuing discovery obligations are met. In particular, a substantial quantity of materials were seized in a number of searches conducted in London in the fall of 1998 and we have been reviewing and marking those documents for production to the defense. The first half of those documents should be produced during the latter part of this week. The balance should be produced within two weeks thereafter.

The Government has now produced all available laboratory reports. The Government recognizes its continuing obligations in this area and will produce any further laboratory reports generated by the continuing investigation.

There is obviously an enormous quantity of material to be translated and the Federal Bureau of Investigation is seeking as much additional translation assistance as it can obtain to accomplish the translations as quickly as possible. The Government has circulated a proposed stipulation to defense counsel which would allow the parties to share draft translations without prejudice to later revisions in an effort to facilitate trial preparation. Upon receipt of executed stipulations, the Government will begin sharing draft translations with the defense.

III. Classified Material

About one month aao, the Government began shifting its emphasis from producing unclassified discovery (which will largely be complete with the production of the London documents) to reviewing a large volume of classified information potentially implicated by this case with a view towards identifying material which is discoverable under Rule 16, or which might constitute material discoverable pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and its progeny and identifying Jencks Act material for persons anticipated to be witnesses at trial. We have communicated with the relevant Government agencies who are likely to be repositories of discoverable information and understand that such agencies are taking steps to assemble information for us to review. That review will be time consuming. (An additional AUSA has been added to the team to work full-time on that review until the review is complete.) We are structuring the review as best we can to evaluate the materials most likely to be discoverable as soon as possible. To the extent that sorne material has already been determined to fall within Rule 16 (or likely to fall within Rule 16) we are undertaking to determine if any of the classified portion of the material can be declassified and produced as "sensitive discovery material" pursuant to the Court's protective order. However, the Government believes there will be some portion of classified material that is not susceptible of declassification but which will be discoverable. Once the bulk of the classified discovery has been made, the Government will then suggest that the Court hold a conference pursuant to Section 2 of the Classified Information Procedures Act ("CIPA") to discuss how to resolve whatever issues are then outstanding.

Last month, James Londergan of the Department of Justice, who advises that he has since been appointed the Court Security Officer by the Court, met with the Government and defense counsel at an informal meeting at which Mr. Londergan discussed the procedures for applying for, and obtaining, the necessary security clearances. Since that time, one defense counsel, Robert Tucker, Esq., has been granted his security clearance and I understand that two others, Leonard Joy, Esq., and David Bruck, Esq., have begun the application process. I further understand that Paul McAllister, Esq., will begin the application process shortly. I understand that other defense counsel have not decided yet whether to apply for such clearances and suggest that we discuss that issue at the conference Thursday and, if necessary, set a schedule for briefing the issue for the Court.

[One-half page and footnote] REDACTED

The Government respectfully suggests that a room at the Courthouse at 40 Centre Street be specifically designated to securely store those boxes of discovery material which the MCC [Metropolitan Correction Center -- Federal jail and also building of the U.S. Attorney] cannot maintain inside the facility. Defense counsel have brought it to the Government's attention that their clients are only able to store a certain number of boxes within their cells and the number of boxes continues to grow (and will grow further for any defendant who wishes to have copies of translations). The Government has spoken with officials ofthe MCC who have indicated that the largest number of boxes that the MCC can accommodate per inmate is three, but due to the unique circumstances of this case, the MCC is willing to keep a total of 10 boxes within the building for each inmate, which boxes will be marked by inmate name and box number. (Defense counsel have indicated an inability to store boxes at their offices, nor is the Government eager to take custody of defense materials.) The Government would propose that if a room at 40 Centre Street could be used for the purpose of storing defendants' legal materials, then each defendant could designate which three (3) boxes he desires in the cell and would have the chance one time per week to substitute boxes. The Government would then suggest that an approved defense paralegal would transport any boxes to be substituted from that storage room to the MCC in the company of a Deputy United States Marshal or other employee of the Marshals Service. In that manner, the materials will remain in a secure, locked facility when not used and in the care of a defense team member while in transit, while at the same time the supervision of the move by a Deputy Marshal would serve to alleviate the need for MCC personnel to do more than a cursory inspection of the boxes to check for contraband.

IV. Filing of This Letter

[One-half page] REDACTED

The Court's kind attention to this matter is appreciated.

Respectfully submitted,

MARY JO WHITE
United States Attorney

By: [Signature]

PATRICK J. FITZGERALD
KENNETH M. KARAS
MICHAEL J. GARCIA
PAUL W. BUTLER
Assistant United States Attorneys
(212) 637-1045/1034/1037/2475

cc: All defense counsel (by fax)
James Londergan (by fax)
        Court Security Officer
Dominique Raia, Esq. (by fax)
        M.C.C.

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