28 November 2001
Source: Electronic records of Western District of Washington via PACER.

[2 pages.]

[Handwritten:]
Unsealed per Order 10-26-01 dkt #319.

Docket No. 142

FILED
NOV 02 2000 SS
AT SEATTLE
CLERK U.S. DISTRIC COURT
WESTERN DISTRICT OF WASHINGTON

Chief Judge Coughenour

COMES NOW the United States of America, by and through Katrina C. Pflaumer, United States Attorney for the Western District of Washington, and Francis J. Diskin, Assistant United States Attorney for the District, and moves this Court for a Protective Order pursuant to Rule 16(d)(1), Fed.R.Crim P. The United States has received certain documents from the Canadian Security Intelligence Service (CSIS) relating to intercepted communications regarding criminal activity by defendant Ressam. The United States has secured the consent of CSIS to show these documents to defendant Ressam and his attorneys only upon the obtaining of a Protective Order which includes the following conditions:

1. The documents must be shown to defendant and his counsel only in the presence of a United States Department of Justice official;

2. No copies of the documents may be provided to defendant or his counsel.

3. No notes may be made by defendant or his counsel while reviewing the documents.

4. At the conclusion of the review by the defendant and his counsel the documents must be retained by the United States Department of Justice official, and may not be further distributed or used without the prior approval of CSIS.

5. Defendant and his attorney must be barred from disclosing to any other persons the contents of the documents, information derived therefrom or the fact that intercepts took place.

Disclosure of the documents has been authorized by CSIS solely for the purpose of assisting in plea and cooperation negotiations.

Because CSIS is an intelligence service of a friendly foreign government, and because the defendant has an interest in the existence of this material not becoming publicly known, the United States respectfully moves the Court to place this Motion and any resulting Order under seal, pending further Order of the Court.

The undersigned has discussed this motion with Thomas W. Hillier, II, who, on behalf of Mr. Ressam has agreed to the entry of the sought-after Order. Mr. Hillier's signature approving the order for entry attests to that fact.
DATED this 2nd day of November, 2000.

Respectfully submitted,

KATRINA C. PFLAUMER
United States Attorney

[Signature]

FRANCIS J. DISKIN
Assistant United States Attorney

[No signature]

THOMAS W. HILLER, II
Attorney for Defendant

[Footer all pages]

MOTION FOR PROTECTIVE ORDER/RESSAM

UNITED STATES ATTORNEY
TWO UNION SQUARE
601 UNION STREET, SUITE 5100
SEATTLE, WASHINGTON 98101-3903
(206) 553-7970

[2 pages.]

[Handwritten:]
Unsealed per Order 10-26-01 dkt #319.

Docket No. 143

FILED
NOV 02 2000 SS
AT SEATTLE
CLERK U.S. DISTRIC COURT
WESTERN DISTRICT OF WASHINGTON

Chief Judge Coughenour

UPON MOTION by the government and for good cause shown, pursuant to Federal Rule of Criminal Procedure 16(d)(1), showing to defendant and his attorney certain documents relating to intercepted communications by the Canadian Security Intelligence Service (hereinafter CSIS) regarding criminal activity by defendant Ahmed Ressam shall be subject to this Protective Order, with the following conditions imposed:

1. The documents must be shown to defendant and his counsel only in the presence of a United States Department of Justice official;

2. No copies of the documents shall be provided to defendant or his counsel.

3. No notes shall be made by defendant or his counsel while reviewing the documents.

4. At the conclusion of the review by the defendant and his counsel the documents must be retained by the United States Department of Justice official, and may not be further distributed or use without the prior approval of CSIS.

5. Defendant and his attorney are barred from disclosing to any other persons the contents of the documents, information derived therefrom or the fact that 2 intercepts took place.

IT IS THEREFORE ORDERED that the government's Motion for Protective Order be, and is hereby, GRANTED.

IT IS FURTHER ORDERED that the government's Motion to Seal be, and is hereby, GRANTED, and all reference to the government's Motion for Protective Order and this Order shall be SEALED until further order of this Court.

SO ENTERED, this 2 day of November, 2000.

[Signature]

JOHN  C. COUGHENOUR
Chief, United States District Judge

Presented by:

[Signature]

FRANCIS J. DISKIN
Assistant United States Attorney

Approved for entry,

[signature]

THOMAS W. HILLER, II
Attorney for Defendant

[Footer all pages]

ORDER/RESSAM

UNITED STATES ATTORNEY
TWO UNION SQUARE
601 UNION STREET, SUITE 5100
SEATTLE, WASHINGTON 98101-3903
(206) 553-7970

[7 pages, excluding 27 pages of CSIS Act.]

CERTIFICATE OF SERVICE
I certify that a copy of the foregoing
document to which this certificate is
attached was delivered to the attorneys
of record of plaintiff, defendant, on
the 27th day of March 2001
UNITED STATES ATTORNEY
BY Janet K. Vos

[Handwritten:]
Unsealed per Order 10-26-01 dkt #319.

Docket No. 266

FILED
MAR 27 2001
AT SEATTLE
CLERK U.S. DISTRIC COURT
WESTERN DISTRICT OF WASHINGTON

Chief Judge Coughenour

COMES NOW THE UNITED STATES OF AMERICA, by Katrina C. Pflaumer, United States Attorney, and Francis J. Diskin, Andrew R. Hamilton and Steven C. Gonzalez, Assistant United States Attorneys for the Western District of Washington, and files this memorandum of law regarding the admissibility of certain public records in the above captioned trial.

BACKGROUND

Pursuant to an Order signed by a Judge of the Federal Court of Canada the Canadian Security Intelligence Service (hereafter "CSIS") began monitoring conversations of certain targets of an investigation into Islamic terrorism¹. While the defendant AHMED RESSAM was not a target of monitoring, his conversations with targets and others, as well as those conversations where his name was mentioned, were intercepted and summarized in reports of the CSIS. The government seeks to offer in evidence several such reports which summarize RESSAM conversations pursuant to the statement against interest and the public records exceptions to the hearsay rule.

____________________

1 It should be noted that all of the conversations addressed in this pleading were intercepted electronically.

The CSIS

The CSIS was created by the Canadian Security Intelligence Service Act enacted in 1984 (hereafter "the Act") That statute describes the duties and function of the CSIS as follows:

The service shall collect, by investigation or otherwise, to the extent that it is strictly necessary, and analyze and retain information and intelligence respecting activities that may on reasonable grounds be suspected of constituting threats to the security of Canada and, in relation thereto, shall report to and advise the Government of Canada.

Threats to the security of Canada were also defined in the Act to include:

(c) activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political objective within Canada or a foreign state . . . .²

____________________

2 A copy of "The Act" in its entirety is attached hereto for the Court's review.

While it is clear from the Act that the CSIS was created to gather security intelligence designed to protect the security of Canada, and to report to and advise the Government of Canada on those matters, it is equally important to realize what the CSIS is not. The CSIS is not a law enforcement agency.

The United States expects to call Mr. Ted Flanigan who holds a senior management position at the CSIS. Mr. Flanigan is expected to testify on the history of the creation of the CSIS, on the mandate of the agency, on the purpose of collecting security intelligence and on the statutory authorized use of that intelligence. He will testify regarding the fact that the CSIS is not a law enforcement agency. He will also provide an overview of how the CSIS reports are prepared when such reports document intercepted conversations, some of which are conducted in foreign languages. In brief, Mr. Flanigan will testify that the CSIS relies on communication analysts, who are fluent in such foreign languages, and on how these analysts are thoroughly screened for loyalty and reliability purposes before being hired by the CSIS. It should be noted that these analysts often live in the same community as the subjects of investigation and disclosing the identity of these analysts could jeopardize their personal security and that of their family members.

Mr. Flanigan will also be able to establish that before a communication analyst is permitted to attribute a conversation to a named individual, the analyst must have indicia of that person's identity from more than one source. For example, an analyst would not be able to rely simply on the speaker's use of his own name in a conversation but could rely on such self-identification in combination with other investigative techniques and sources for example, surveillance that placed the speaker at the location at which the interception was taking place.

Further, Mr. Flanigan will testify that all reports summarizing an interception must be reviewed and approved by the analyst's supervisor. Until a speaker is fully identified in more than one way, the CSIS protocol requires that the person be identified as an unknown person or a person believed to be a named individual.

Here, RESSAM was identified, within the information text of the summary, as the speaker conducting conversations in the Spring of 1998 (nearly two years after his voice was first heard and identified by the CSIS). This identification should be deemed reliable. Indeed, RESSAM's name appears in some 358 reports.

In addition to the above, in many of the conversations that will be offered as evidence, RESSAM is speaking with and about individuals with whom he has been associated through evidence already admitted at trial.

ARGUMENT

1. Admissibility

A. Hearsay Rule. The summaries are foreign public records setting forth matters observed pursuant to a duty imposed by law, and are therefore admissible as an exception to the hearsay rule under FRE 803(8)(B). Mr. Flanigan will testify that all recordings must be court authorized under the authority of the CSIS Act. Their contents are then summarized, classified and retained for specific statutory use by the CSIS personnel in the course of their official duties related to safeguarding the national security interests of Canada. Pursuant to routine official policy, tapes are destroyed following the creation of the summaries. He will also testify on the role of external review bodies that exist to ensure, among other things, a review of the quality control of the summaries contained in the CSIS reports. The provision 7 of Rule 803(8)(B), excluding in criminal cases the observations of law enforcement officers, 8 does not apply to these records because the CSIS, by Canadian law, is limited to the collection, on a strictly necessary basis, of information for activities that are suspected of constituting threats to the security of Canada . The CSIS has no law enforcement functions. See, United States v. Rosa, 11 F.3d 315, 333 (1993).

B. Rule 801(d)(2). The summaries record admissions of the defendant and statements of his co-conspirators. As such they are not hearsay and are therefore also 14 admissible under FRE 801(d)(2)A. Because the tape recordings which they summarize have 15 been destroyed pursuant to the normal and routine procedures of the CSIS, the summaries are 16 admissible as secondary evidence of the content of the recordings, pursuant to FRE 1004(1). In United States v. Ross, 33 F. 3d 1507, 1512 (11th Cir. 1994) a Continuing Criminal Enterprise narcotics case, the Spanish National Police (SNP), during the course of a parallel investigation, had intercepted and recorded a number of the defendants' conversations, occurring during the activities which were the subject of the U.S. prosecution, The tape of the conversations had been destroyed pursuant to routine procedures of the SNP after they had transcribed those portions of the conversations that they deemed "important" or "interesting." The original recorded conversations had been in both English and Spanish, and some of the transcripts produced at trial were the result of a process of translation from English to Spanish and back to English. 33 F. 3d at 1513. The 11th Circuit held that transcripts, and at least one summary, of the conversations were properly admitted as secondary evidence under FRE 1004(1) and, because they contained admissions and coconspirator statements, were not hearsay under FRE 801(d)(2). The transcripts and summaries were authenticated by officers of the SNP who had been involved in transcribing them. 33 F.3d at 1514. Similarly, in United States v. Maxwell, 383 F.2d 437 (2nd Cir. 1967), a partial transcript of a recorded
conversation was admitted as secondary evidence of the content of the conversation, where the recording had been routinely destroyed by a narcotics agent who erroneously believed that the prosecution had terminated. Cf., [          blank           ] 647 F.2d 928, 930-32 (9th Cir. 1981) where the court upheld the admissibility of several forms of secondary evidence where the original evidence was lost or unavailable due to the government's inability to obtain it from Thailand.

2. Authentication.

The summaries have been authenticated by the attestation of a CSIS official certified by a consular agent of the United States. This certificate is to the effect that the documents sought to be introduced as evidence are authentic copies of the redacted computer generated reports extracted from the summaries of intercepted voice communications.

3. Confrontation Clause Issues.

In a criminal case, evidence of out of court declarations offered for the truth of their content which are admissible under the rules of evidence, must also satisfy the reliability concerns protected by the Confrontation Clause of the Sixth Amendment. The Supreme Court has held that ordinarily the requisite reliability "can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception." Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531, 2539 (1980).³ The admission of public business records pursuant to FRE 803(6), United States v. Ross, 33 F.3d at 1516; See, Manocchio v. Moran, 919 F.2d 770, 775, 778 (1st Cir. 1990) and the public records exception of FRE 801(6) are such firmly exceptions United States v. DeWater, 846 F.2d 528, 530 (9th Cir. 1988). However, even where the evidence is not covered by such an exception, confrontation concerns are met if other indicia of reliability, in the form of particularized guarantees of trustworthiness, are present. 448 U.S. at 66, 100 S.Ct. at 2539. We submit that the testimony of the CSIS official will adequately demonstrate the necessary indica of reliability with respect to the summaries in this case.

____________________

3 In the case of former testimony evidence, such as that at issue in Roberts, the declarant must be shown to be unavailable before the out of court statement may be admitted without violating the Confrontation Clause. With respect to most types of hearsay declarations however, such as those found in business or public records, unavailability of the
declarant is not a prerequisite to admissibility. See United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121(1986); Manoccihio v. Moran, 919 F.2d at 774-75

4. Affidavit or Hearing.

In the event that the Court does not accept the testimony of Mr. Flanigan as being sufficient to establish the reliability of the evidence, the United States will pursue on affidavit or testimony of the communication analyst who was involved in the process of listening to the recordings and preparing the summaries. However, the analyst is asking for certain specific conditions to be met, including anonymity and a restriction of the analyst's evidence to the issue of voice identification.

The intercepted conversations were conducted in Arabic. The communication analyst who listened to the majority of the recordings and prepared a majority of the summaries is fluent in Arabic. The analyst is the person who, employing the criteria and methodology that Mr. Flanigan will explain in his testimony, identified the defendant's voice as a speaker in the recorded conversations. Over the many months of monitoring these conversations, the analyst became very familiar with the voice of defendant RESSAM as well as others of his conspirators.

The communication analyst would agree to sign an affidavit indicating how the voice of RESSAM was recognized for every conversation which this analyst monitored. The analyst would be ready to sign the affidavit under an assumed name and not be subject to cross examination. If this does not meet with the Court's requirements, the analyst would agree to testify if the analyst's name and face are not revealed and if the analyst could remain in Canada and provide testimony through a live transmission to Los Angeles. Due to the analyst's ethnicity, revealing the analyst's identity by name or face would put not only the analyst but also the analyst's family, some of whom reside in vulnerable locations outside Canada, at risk. Revealing the analyst's identity would also have a chilling effect on the CSIS's ability to recruit individuals to perform the same function. For these reasons the witness will be made available to the United States by the CSIS to provide testimony in this case, only if the testimony is taken in the manner set out above. The Court is respectfully requested to accept the affidavit or hear the testimony of this analyst in the above suggested
manner.

Similarly, in the instant case, the Court, under FRE 104(a) and (c) is authorized to hear foundational and preliminary matters relating to the admissibility of evidence, out of the presence of the jury, "when the interests of justice require." Accordingly, the Court is respectfully requested to hear the testimony of Mr. Flanigan in order to determine that an appropriate foundation of indicia of reliability has been shown to permit, consistent with the Confrontation Clause, the introduction of the Canadian intercept summaries as foreign public documents under FRE 803 (8)(B), or alternatively as secondary evidence of defendant's admissions under FRE 801(2)(d)(A). If the Court should consider that this testimony would not be sufficient to meet the threshold, the United States would pursue the affidavit or testimony of the communication analyst on the issue of voice identification alone and ask the Court to make the necessary order to protect the identity of the analyst as described above.

Dated this day of March, 2001,

Respectfully submitted,

KATRINA C. PFLAUMER
United States Attorney

[Signature]

FRANCIS J. DISKIN
Assistant United States Attorney

[Footer all pages]

GOVERNMENT'S MEMORANDUM OF LAW/RESSAM

UNITED STATES ATTORNEY
TWO UNION SQUARE
601 UNION STREET, SUITE 5100
SEATTLE, WASHINGTON 98101-3903
(206) 553-7970

[Omitted here: Office Consolidation, Canadian Security Intelligence Service Act, R.S., 1985, c. C-23, February, 2000. 27 pages.]