A Report by Human Rights Watch
July 21, 2014
Trials in US courts are considered public, and virtually all witnesses testify using their true names. US and international law protect the right of defendants to confront witnesses against them.
However, in some terrorism cases, US courts have allowed the government to hide the identity of witnesses—including foreign agents and US officials—either for their own protection, or because the witness works in a sensitive position. At times the witness’ identity is hidden even from defence counsel, making it nearly impossible for the defence to investigate the person’s background.
The use of anonymous witnesses raises concerns about adequate protections of the right to a fair trial. International human rights law requires that everyone charged with a criminal offense be able to examine the witnesses against them. The use of anonymous witnesses violates fair trial rights because it deprives the accused of the necessary information to challenge the witness’ reliability. The Human Rights Committee has said that anonymous testimony should not form the primary basis for conviction. While the cases we documented did not rely exclusively or primarily on anonymous testimony, the use of such testimony for critical components of the case, including expert testimony, raises fair trial concerns.
Anonymous witnesses were used in the Holy Land Foundation case and the case of Muhammad Salah. They were also used in the case of Mohamed Mohamud, who was convicted in January 2013 of attempting to use a weapon of mass destruction following a sting operation. Mohamud twice thought he was detonating a bomb via his cell phone at a Christmas-tree lighting ceremony in Portland, Oregon. At trial, the FBI agents who had been involved in the sting operation testified using pseudonyms and in light disguise. In January 2013, Mohamud was convicted of attempting to use a weapon of mass destruction; in June 2014, the district court denied his motion for a new trial. At time of writing, Mohamud has not been sentenced.
Evidence from Warrantless Wiretaps under the Foreign Intelligence Surveillance Act
In dozens of terrorism cases, prosecutors have used as evidence information obtained by wiretaps or physical searches not subject to the standard probable cause requirements in criminal cases. In these cases, the government obtained information pursuant to either the Foreign Intelligence Surveillance Act (FISA), or the FISA Amendments Act (FAA)—two statutes that permit surveillance without a traditional warrant. Applications under FISA are reviewed by the specially created Foreign Intelligence Surveillance Court (FISC), which sits in secret and does not have any structures in place that would offer meaningful opposition to government requests. The FISC issues warrants based only upon a showing of probable cause that the target of surveillance is a foreign power or an agent of a foreign power, not that there is probable cause that the target is suspected of criminal activity.
The FISC has rarely rejected a government request for a surveillance warrant. Since its inception, the FISC has received more than 30,000 applications for authority to conduct electronic surveillance or physical searches. Of those, it has denied nine, and partially denied another three. Under the FAA, the government does not need any kind of warrant at all. Rather, it obtains year-long authorizations from the FISC to collect “foreign intelligence information,” defined broadly (see below) so long as one end of the communication is “reasonably believed” to be outside the US and the government follows certain procedures it submits to the FISC for approval, intended to minimize the amount of information collected on “US persons.” In practice however, an enormous number of US-person communications are still swept up in the surveillance.
Background: Broadening of the Foreign Intelligence Surveillance Act since 9/11
The US Congress enacted FISA in 1978 in the wake of the Watergate scandal and other concerns about warrantless wiretapping. FISA was intended to rein in government surveillance excesses by requiring judicial authorization to conduct surveillance to collect “foreign intelligence information” inside the US.
Ordinarily, electronic searches and physical evidence-collection are governed by the Fourth Amendment to the US Constitution, which protects against “unreasonable searches and seizures.”This generally requires that evidence used against a defendant be obtained through a warrant based on probable cause of criminal activity. FISA does away with the traditional warrant requirement in certain circumstances, on the theory that the government has the inherent authority to conduct foreign intelligence surveillance, even inside the US, without a traditional warrant. Instead, the government can obtain an order from the FISC in an ex parte (only one party) proceeding upon a showing of probable cause that the intended target of the surveillance is a foreign power or an agent of a foreign power. FISA originally required that the collection of foreign intelligence information be a primary purpose of the surveillance, leading to what was colloquially referred to as the FISA “wall,” in which law enforcement could not be involved directly in coordinating surveillance with the intelligence community under FISA.
However, after 9/11, Congress amended FISA in 2001, substantially broadening its scope. The amendments took down the wall, permitting law enforcement to become more directly involved in coordinating surveillance under FISA. And Congress changed the requirement that foreign intelligence collection be “a primary purpose” to merely “a significant purpose.”
As a result of the amendments, the government has contended that not only can the information from a FISA order be used in criminal prosecution, but intended criminal prosecution can be a reason for obtaining the FISA order in the first place, so long as it is not the sole purpose. Surveillance that might previously have required a traditional warrant can now be authorized by the FISC ex parte and in secret.
Additionally, beginning at least as of 2002 if not before, then-US President George W. Bush authorized warrantless surveillance—surveillance without either a traditional warrant or an order from the FISC—inside the US. It is not clear to what extent information obtained pursuant to that program was used in criminal prosecutions.
In 2008, Congress broadened FISA even further, by passing the FISA Amendments Act (FAA), which permits the attorney general and director of national intelligence to issue one-year blanket authorizations for surveillance of non-US persons “reasonably believed” to be outside the United States in order to acquire “foreign intelligence information” without a warrant. “Foreign intelligence information” is defined very broadly, to include not just information important to national security, such as information about weapons of mass destruction or terrorism, but also information that merely “relates to” the “security” or “foreign affairs” of the US.
Acquisitions under the FAA are subject to “minimization” and “targeting” procedures approved annually. These procedures are purportedly intended to minimize the acquisition of US-person communications as well as apply limits to the use and dissemination of the information obtained.These procedures are classified, though the US has declassified some minimization procedures in response to certain Freedom of Information Act (FOIA) requests. It is not clear if these procedures will be made available to the public going forward. As for targeting procedures, the only ones made available to the public thus far are a 2009 version that was leaked to the media  by former National Security Agency contractor Edward Snowden. Both the one-year authorizations as well as the targeting and minimization procedures must be approved by the FISC, but once approved, there is no requirement that the court monitor how the rules are applied or conduct oversight.
When the government plans to use the FISA-obtained evidence in a criminal prosecution against a defendant who was under surveillance,the attorney general must give advance notice. However, if the evidence was obtained through FISA but not directed at the defendant—for example, if a co-defendant or witness was subject to surveillance or physical searches pursuant to a FISA order—FISA does not require the government to notify the defendant in advance of its plans to use the evidence. Because FISA orders are issued in secret, the subjects of the orders generally only learn of them if they are prosecuted; if criminal charges are never brought, the existence of the FISA order remains secret.
In January 2014, President Obama announced a presidential policy directive establishing new measures intended to restrict the use, retention and dissemination of information obtained by intelligence agencies—though it left open the possibility of continued bulk collection. It is not clear from the directive how the new restrictions will relate to information collected under the FAA because the directive specifically exempts data “temporarily acquired to facilitate targeted collection” from the use restrictions placed on continued bulk data collection and does not define “targeted collection.”
Use of FISA-derived Evidence at Trial
Defendants have the right to challenge the prosecution’s use of information obtained pursuant FISA or FAA authorities by moving to suppress the evidence, either on the basis that it was obtained illegally, or that the surveillance exceeded the bounds of what was authorized.
In practice, however, it is extremely difficult for the defence to exercise this right due to the secrecy that pervades the collection of evidence pursuant to FISA and the FAA. If the prosecution intends to use evidence obtained from electronic surveillance under FISA, the attorney general must disclose in advance intent to use that information. However, if the defendant challenges that information, the attorney general may file an affidavit indicating that disclosing the information pertaining to the order would harm national security; if he does so, the court must consider the application and any order in camera, and the defence cannot participate. The court can disclose certain information to the defence to help determine if the surveillance was lawful, but “only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.” This means that the defence must operate blindly, challenging the legality of the order (or surveillance absent a FISC order), or law enforcement’s compliance with it, without being able to see the materials that initially supported the surveillance.
The statute requires that similar notice be provided if information obtained pursuant to the FAA is to be used. Yet until recently, the government refused to provide such notice by instead using FAA-obtained information to support a FISA application. Defendants were provided notice that information was obtained under FISA, but the fact that the basis for the investigation originated from warrantless surveillance under the FAA was not disclosed. If the defendants had been aware that they were subject to warrantless surveillance, they might have filed constitutional or other challenges. Following an internal Justice Department debate about whether to disclose the fact that warrantless surveillance formed part of the chain of information that led to a FISA order, in 2013 the government began providing such notice.
Since 2007, the FBI has used secret evidence obtained under FISA to prosecute at least 27 accused terrorists. These include the following:
Case of Amina Ali and Hawa Hassan:
Amina Ali and Hawa Hassan were arrested in August 2010 as part of a country-wide investigation into support for the Islamist armed group Al-Shabaab in Somalia. They were convicted of providing material support for terrorism for sending clothing and money to Al-Shabaab. On the same day they were arrested, the Department of Justice unsealed indictments against 12 other individuals in two other states. Only during the trial did the public learn that Ali’s and Hassan’s phones had been tapped for months. Ali’s attorney said the order authorizing the surveillance was pursuant to FISA but that he never saw the order or the underlying facts cited in support for its acquisition. He said he did not know when the surveillance began or ended. Although he filed motions to suppress evidence obtained pursuant to a FISA order, the application was reviewed ex parte and in camera. The government filed a lengthy memorandum in opposition to the defence motion to suppress, yet the public version contains almost no information about the case and instead includes only standard legal arguments. The secrecy connected to FISA warrants prompted others in the American-Somali community in Minneapolis to fear that they were also under surveillance.
Case of Mehrdad Yasrebi (see above):
A FISA warrant was also used in the case against Mehrdad Yasrebi, prosecuted for violating OFAC sanctions against Iran. David Angeli, Yasrebi’s defence attorney, told Human Rights Watch that he considered the process behind obtaining FISA orders to be fraught with problems and prone to abuse:
In every other case, I get to see the basis for a search warrant. Here, no one gets to see if the government lied or if it didn’t present certain evidence.… If [a defence attorney] has secret clearance, just like the prosecutors do, we should have the same access. When you remove the defence counsel from the process and don’t have that check, it creates very real possibilities for abuse.… And when the government thinks there might be something related to terrorism involved, the incentive for them to step over the line is even greater.
Case of Abdelhaleem Ashqar:
In 1993, likely in response to information obtained from Muhammad Salah while under interrogation in Israel, the FBI obtained a FISA order for electronic surveillance of Abdelhaleem Ashqar, a former business administration professor at Howard University. The FBI also searched Ashqar’s house in December 1993. Ashqar first learned of the surveillance in court in August 2004 when documents from that search were entered into evidence against him on charges of criminal enterprise in violation of federal racketeering laws. Documents seized from Ashqar’s home were also used as evidence in the Holy Land Foundation case. The FBI first learned about conference in Philadelphia, which was a key element of the case, through the wiretap of Asqhar’s communications.
Holy Land Foundation Case:
The case against the Holy Land Foundation involved significant information obtained pursuant to FISA orders. In both trials, the defendants moved to compel production of the underlying applications for the FISA orders, and to suppress the evidence acquired pursuant to them. The district judges reviewed the information ex parte and in camera and denied the defence requests.
Case of the Fort Dix Five:
Some of the evidence in the Fort Dix Five case came from a FISA order. While the government declassified much of the evidence, the underlying affidavits supporting the orders were not declassified. Although the judge reviewed the underlying FISA application materials, including for relevance to discovery, his ability to assess discoverability was hindered by not knowing early on what defences would be asserted. Although the defendants challenged the constitutionality of FISA on appeal, their challenge was denied.
Al-Haramain’s Challenge to FISA Surveillance
In a parallel proceeding to the prosecution of Pete Seda, the charity Al-Haramain came to believe that it was subject to warrantless electronic surveillance in violation of FISA in 2004; in 2006, it filed suit. In 2007, the Ninth Circuit Court of Appeals ruled that the suit was not barred by the state secrets privilege.  On remand, the district court found that Al-Haramain had established it had been surveilled and the government had presented no evidence that established it had a warrant. 
The judge granted summary judgment to the plaintiffs, and awarded $20,400 each to two Al-Haramain attorneys in liquidated damages for the FISA violation, and $2.5 million in attorneys’ fees and costs. On appeal, however, the Ninth Circuit ruled that the suit was barred by sovereign immunity, “effectively bring[ing] to an end the plaintiffs’ ongoing attempts to hold the Executive Branch responsible for intercepting telephone conversations without judicial authorization.”  The plaintiffs elected not to appeal to the Supreme Court.  The Ninth Circuit’s ruling means that even if a plaintiff can establish violation of FISA, as Al-Haramain did, it has no recourse in court. If other circuits follow that reasoning, the government will remain immune from liability for violating FISA.
Another challenge for the defence in terrorism cases involves the frequent introduction of classified evidence, which often causes delays and obstacles to discovery that may affect the fairness of the trial.
The Classified Information Procedures Act (CIPA), enacted in 1980, provides procedures for prosecuting federal criminal cases involving classified information, including at both the discovery and trial stages. CIPA was originally passed in 1980 to address cases of “graymail,” or “the tactic of a defendant who threatens to disclose classified information in the course of a prosecution,” particularly in cases of espionage. Today, CIPA and CIPA-inspired procedures (in civil cases) are frequently used in terrorism cases where classified information is in play, usually in the form of classified evidence provided by the government against the defendant.
CIPA requires both parties to provide notice when classified information is at issue, initially at a pre-trial conference. Courts applying CIPA procedures are called on to determine whether discoverable classified information can be “(1) omitted, (2) summarized, or (3) substituted with an admission.” While this usually occurs ex parte, the record is preserved for appeal. Upon the government’s request, the court can issue a protective order preventing defence from disclosing classified information to a defendant. Where a court authorizes disclosure of specific classified information, the government may request that in lieu of disclosure the information be substituted with a summary or an admission. Finally, where fair trial necessitates the disclosure of classified information that the government is unwilling to disclose, remedies include dismissal of the indictment or of certain counts. Throughout this process, the defendant must retain “substantially the same ability to make his defence as would disclosure of the specific classified information.”
CIPA causes significant delays, both because counsel must obtain security clearances, and because the process of substitutions and summaries can add months or even years to discovery and pre-trial proceedings. Several lawyers involved in the Barry Bujol case (see section II) said that key evidence against Bujol was classified, and they faced delays in getting access to that evidence while waiting for clearance.
CIPA presents particular challenges when it comes to discovery. Defence counsel may have trouble identifying what information they believe the prosecution has that would be helpful to the defence. Defence counsel must do so without consulting their client, affecting the client’s ability to have effective assistance of counsel. And even if defence attorneys do identify relevant material, CIPA permits the court to provide summaries or make substitutions, meaning the defence will never have access to the original evidence.
Evidence obtained by foreign governments is frequently classified. In the earlier post-September 11 cases, this tended to involve evidence obtained when Americans were picked up in foreign countries and interrogated by foreign agents, often at the behest of the United States.
The following cases illustrate how the introduction of classified evidence can create serious difficulties for the defence and undermine the fairness of the trial:
Case of Mohamed Warsame:
Warsame was held in solitary confinement while awaiting trial for five-and-a-half years, the longest recorded period of time for any pre-trial detainee in the federal system (see below). In an interview, District Judge John Tunheim attributed part of that delay to the length of time involved in processing classified material under CIPA. The district judge had personally compared all of the unclassified substitutions proposed by the government with the classified source material. The slow process contributed to Warsame’s lengthy pre-trial detention under abusive conditions.
Case of Ahmed Abu Ali:
In this case, the court appointed private attorney Nina Ginsberg well into the proceedings to review classified evidence for the defence, although she was not otherwise part of Abu Ali’s defence team. Abu Ali’s main defence lawyers, who did not have security clearances, were not allowed access to any classified information or permitted to be present at hearings determining the admissibility of classified evidence and the sufficiency of evidence meant to substitute for the classified evidence. This situation hampered Abu Ali’s defence overall, with Abu Ali’s long-standing defence attorneys completely in the dark about the defences Ginsberg had raised in the classified hearings. “Part of how you develop your defence is people talking to each other and developing strategies,” Ginsberg explained. “I wasn’t allowed to tell them anything that was classified, and I thought there were substantial issues that ought to have been part of the defence that were excluded by the judge.…There were entire other defences that were the subject of classified hearings which we lost.” Yet Ginsberg was never able to share these with the main defence team.
Classified Statements by Persons Subjected to Torture
The difficulties the defence can face when seeking access to classified information were dramatically evident in the case against Uzair Paracha. Paracha sought the testimony of Majid Khan, Ammar al Baluchi, and Khalid Sheikh Mohammed, who at the time were believed to be in secret custody of the US government. 
While not conceding that they were in US government custody, the prosecution argued that for the purposes of the motion, if they were in government custody, producing them would damage national security by allowing “Al-Qaeda operatives [to] use the US legal system to interfere with the military’s prosecution of the war on terrorism.” 
The judge determined that Mohammed’s testimony was not material, but that both Khan and al Baluchi likely had material and favourable evidence to present. Saying that he was balancing the government’s concerns of national security against Paracha’s right to present such evidence, Judge Stein ordered that unclassified summaries of statements provided by the two men could be admitted, along with instructions to the jury detailing the circumstances in which the statements were obtained.
The jury instruction included that “[t]he witnesses’ statements were obtained under circumstances that were designed to elicit truthful and accurate information from witnesses because the statements are relied upon by United States officials responsible for making national security decisions.”  As we now know, the men were held in secret CIA custody for years and subjected to incommunicado detention and torture, calling into question the veracity of their statements.  The government—and the judge—willingly vouched for the truthfulness of statements obtained by people subjected to torture by the same government, highlighting the problems that can ensue when a defendant is denied full access to information because it is purportedly classified.
Paracha’s case is somewhat unusual because it was the defendant, not the government, who had an interest in establishing the veracity of witness statements that may have been taken under duress. Judge Stein did not permit the government to use the statements affirmatively, perhaps in acknowledgment of that fact.
Because the defence does not have the ability to review the classified information, it operates blindly when challenging the adequacy of a summary or substitution. While the system relies on prosecutors and district court judges to protect the rights of the defendant, the system can fail, either through bad faith or because structurally the absence of the defence means the trial judge will not have the benefit of hearing all sides of an issue (though the defence can present its theory of the case to the judge in order for him or her to take it into consideration when reviewing the classified material).
In Pete Seda’s case, the Ninth Circuit found the government’s failure to make an appropriate substitution—and the district judge’s acceptance of the inadequate substitution—an additional basis for ordering a new trial for Seda. The appeals court concluded “that the substitution’s language unfairly coloured presentation of the information and, even more problematic, that the substitution omitted facts helpful to Seda’s defence.” Although the court did not find bad faith on the part of the prosecutors, it found that “the government appears to have looked with tunnel vision at limited issues that it believed were relevant.”
Anonymous and Biased Juries
While the majority of terrorism cases (like most criminal cases) do not go to trial, those that do face challenges obtaining unbiased juries, as well as the use of anonymous jurors—a practice rare in criminal cases though used in high-profile, organized crime trials.
Anonymous juries—that is, juries whose names and identities are shielded from the public, and sometimes even from the parties and judge, in order to protect their safety—were used in several of the cases we examined, including the cases of Fort Dix Five, Abdelhaleem Ashqar and Mohammed Salah. If a judge declares the jury “anonymous,” usually for security reasons, defence lawyers may be hampered from examining prospective jurors for bias.
Moreover, identifying unbiased jurors, whether anonymous or not, is particularly challenging in terrorism cases, especially those involving Muslims. In federal terrorism prosecutions, some judges have elected to use written jury questionnaires, which allow them ask a broad range of questions that may root out more prospective jurors who may have bias towards the defendant. In the case of Hossam Smadi (who pleaded guilty shortly before he was scheduled to go to trial) the judge provided a questionnaire to the approximately 175 members of the jury pool. One of Smadi’s defence attorneys, Richard Anderson, described the judge as “outstanding” and felt that the questionnaire was appropriately crafted to identify bias. But many judges do not use questionnaires, which can make it harder to identify biases.