MILNET:

MILNET Brief
The Lodi Five Trial
7/21/2005

Overview

Important Dates

Item	Whom	Date
Pre-Trial
CIPA/Complex Case Briefing Due	Government	7/06/2005
Response to CIPA	Defense	7/11/'2005
Reply to Response	Government	7/11/2005
CIPA In Court Hearing	All Parties	7/15/2005
Pre-Trial Conference	All Parties	8/19/2005

Trial
Preliminary Jury Trial to Begin	All Parties	8/23/2005

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Details

Pre-Trial:

Key pre-trial issue is the CIPA process, see the analysis below. On 7/06/2005, the government presented a Motion to Exclude, resquesting the court to excluse the speedy trail provisions and vacate the trial date of August 23, 2005, due to the case being a "complex case" and requiring extraordinary time for preparation by the government.. The government also submitted the formal request to the court for a CIPA hearing, and the court set that date to be 8/19/2005 formely the pre-trial date as the hearing date for final arguments on the CIPA issue.

On 7/15/2005, Judge Garland Burrell held a hearing on the government's motions to exclude and CIPA. The Judge ruled that the case should move forward and denied the motion to exclude the provisions of the Speedy Trial Act and reaffirmed the final pre-trial conference date of 8/19/2005 as well as the start date for the trail on 8/23/2005.

Analysis

Prior to trial date

7/21/2005: BRIEFING: British authorities have linked the London bombers to Pakistani terrorist Harood Rashir Aswat, who was sent to Oregon to build a Jihadist training camp and who is well known to the CIA and the FBI, through their terrorist informer James Ujaama. OPINION: Public acknowlegement of that linkage may release the government to disclose information in the Hayat case they could not have released prior to the London bombings and subsequent disclosures. Or perhaps the government will use this opportunity to declassify that information in the hopes of destroying would-be support for similar operations in the U.S

7/16/2005: OPINION: By denying the governments motion to exclude, Judge Burrell has most likely forced the government to begin two parallel processes. The first is to focus energy on ensuring their case of lying to FBI agents is foolproof in order to ensure the encarceration of the Hayats. The second would be to expedite gathering of any evidence that could be used in that trail as well as begin building a substantial case of support of terrorism against the father Umer Hayat and attending a terrorist training facility against Hamid Hayat. The idea here would be to have the case well enough prepared to go for a secret indictment to be released within seconds of the conclusion of the Title 18, section 1001 (lying to agents) trail, on the off chance that they Hayats were exonerated of those charges.

It is not yet clear whether Judge Burrell will instruct the trial jury to ignore Johnny Griffen's contention that the government must proof the terrorist charges as well as the simple case of the Hayat's lying (first stating no connection and then spilling out a long story about terrorist involvement).

If the government is forced to prove at least one terrorism charge, and without the relief from CIPA and the Speedy Trial Act, the U.S. Attorney's office may be hard pressed to prepare an adequate prosecution.

Clearly, the worst case scenario would be for the Hayats to be released after a not guilty verdict on lying to the FBI, and their exiting the country to disappear in Pakistan before a terrorism charge could be levied and tried.

7/06/2005: BRIEFING: The Trial for two of the five Lodi residents named by the Department of Justice in their investigation of terrorism in Lodi, Hamid and Umer Hayat is set to begin on 8/23/2005. However, there are several steps that must be completed before that trail will begin.

First, there is the issue of the government's Classified Information Procedures Act notice issued on 6/27/'2005. This notice informs the Court ane the defense that certain evidence in the case in the hands of the U.S. Government may be in fact be classified information, requriing special access requirements for legal counsel for the defense as well as limited access to court employees.

The important issue is the degree of disclosure to the defendant in the case. If the court allows it, the government may carefully parse the classified information that is disclosed en camera and ex parte (closed hearing and without the defendants), and then request the court to seal that evidence. That request must be a signed request by the U.S. Attorney General certifying that the "disclosure of classified information would cause identifiable damage to the national security of the United States and explaining the basis for the classification of such information." ¹

In the Missaoui case, this issue created huge delays in the prosecution as the government and the defense wrangled over both evidence and details of the handling and disclosure of that evidence. Eventually the Judge in that case ordered the government to disclose information to the defendant or withdraw that evidence, the government eventually withdrawing that evidence.

In this case the governments issue with this case is a discovery request from the defense for evidence from over 40 U.S. Federal Agencies, requiring an inordinate amount of manpower and man hours in order to comply. Further, the prosecution team (based in California) may have to fly to D.C. to review any material returned by the searchs, review that material, and perhaps discuss with the agency involved to work out the litigation position. With up to only 4 or 5 agencies this will far exceed the alloted time, let alone with 40 plus. The government contends at present they will need 30-60 days to prepare and that is if no other agency responds with data to be reviewed and positioned.

The motion to exclude also outlined the need for classified information clearances that may be required for judges and clerks as well as classified document storage, all provisiosn which are in timeframes well beyond the set trial date. And finally the issue of translation which was intimated at the discovery hearing is formally laid out in the motion to exclude. Essentially, the government evidence from the FBI contains some 2000 pages, the majority of which are in a language that will need transalation of which will take 3-4 weeks, again beyond the preliminary trial date.

As this issue is usually highly contentious, it may very well be that the scheduled process set by Judge Garland Burrell in the status hearing on 7/01/2005 may in fact run past the appointed pre-trial conference (8/19/2005) and the preliminary Jury Trial date of 8/23/2005.

MILNET's analysis is that the August 23, 2005 trial date is indeed not reasonable and that Judge Burrell will make the determination to vacate the 8/23/2005 date.

Sources:

Classified Information Procedures Act, U.S. Law, U.S. 18, App. III (CIPA)
Government's Motion To Exclude, PACER, U.S. Ninth Circuit, California Eastern District Court, 7/06/2005
Government's Motion For CIPA Hearing, PACER, U.S. Ninth Circuit, California Eastern District Court, 7/06/2005