Prosecutors said they turned over to the defense more than 20,000 files and 4,000 pieces of physical evidence. They said complying with the defense's request could delay the trial for years. The following is the transcript of the April 9, 1996 hearing.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Criminal Action No. 96-CR-68
UNITED STATES OF AMERICA,
Plaintiff,
vs.
TIMOTHY JAMES McVEIGH and TERRY LYNN NICHOLS,
Defendants.
REPORTER'S TRANSCRIPT - VOLUME I
(Hearing on Motions)
Proceedings before the HONORABLE RICHARD P. MATSCH,
Judge, United States District Court for the District of
Colorado, commencing at 9:00 a.m., on the 9th day of April,
1996, in Courtroom C-204, United States Courthouse, Denver,
Colorado.
Proceeding Recorded by Mechanical Stenography, Transcription
Produced via Computer by Paul Zuckerman, 1929 Stout Street,
P.O. Box 3563, Denver, Colorado, 80294, (303) 629-9285
APPEARANCES
PATRICK M. RYAN, United States Attorney for the
District of Oklahoma, Assistant U.S. Attorney, 210 West Park
Avenue, Suite 400, Oklahoma City, Oklahoma, 73102, appearing
for the plaintiff.
JOSEPH H. HARTZLER, SEAN CONNELLY, LARRY A. MACKEY,
BETH WILKINSON, and SCOTT MENDELOFF, Special Attorneys to the
U.S. Attorney General, 210 West Park Avenue, Suite 400,
Oklahoma City, Oklahoma, 73102, appearing for the plaintiff.
STEPHEN JONES, RICHARD BURR, ROBERT NIGH, JR., ROBERT
WYATT, IV, and JAMES HANKINS, Attorneys at Law, Jones, Wyatt &
Roberts, 114 East Broadway, Suite 100, Post Office Box 472,
Enid, Oklahoma, 73702-0472, appearing for Defendant McVeigh.
MICHAEL E. TIGAR, RONALD G. WOODS, ADAM THURSCHWELL,
and REID NEUREITER, Attorneys at Law, 1120 Lincoln Street,
Suite 1308, Denver, Colorado, 80203, appearing for Defendant
Nichols.
* * * * *
PROCEEDINGS
THE COURT: Please be seated.
We're convened in No. 96-CR-68, United States vs.
Timothy James McVeigh and Terry Lynn Nichols, for the purpose
of hearing a number of motions.
I think we should begin with the entry of appearances
of those counsel who are going to participate.
MR. HARTZLER: Good morning your Honor. Joseph
Hartzler for the United States.
THE COURT: Mr. Hartzler.
MR. CONNELLY: Sean Connelly for the United States.
THE COURT: Mr. Connelly.
MS. WILKINSON: Beth Wilkinson for the Government.
THE COURT: Ms. Wilkinson.
MR. MENDELOFF: Scott Mendeloff on behalf of the
United States, your Honor.
MR. MACKEY: Good morning, your Honor. Larry Mackey.
MR. RYAN: Good morning your Honor. Pat Ryan for the
Government.
THE COURT: Mr. Ryan.
And for the defendant Mr. McVeigh, Mr. Jones?
MR. JONES: Yes, your Honor. Stephen Jones.
MR. BURR: Richard Burr, your Honor.
MR. NIGH: Rob Nigh for Tim McVeigh, your Honor.
MR. WYATT: Robert Wyatt, your Honor.
MR. HANKINS: James Hankins, your Honor.
THE COURT: James Hankins, and Mr. McVeigh is present.
Good morning, Mr. Tigar.
MR. TIGAR: Good morning, your Honor. Michael Tigar
for Terry Lynn Nichols. Mr. Nichols is present in court.
THE COURT: Mr. Nichols.
MR. WOODS: Ron Woods.
MR. THURSCHWELL: Adam Thurschwell.
MR. NEUREITER: Reid Neureiter.
MR. TIGAR: Your Honor, Mr. Neureiter is a new member
of our team from the firm of Williams & Connolly in Washington,
D.C., that your Honor signed the order for.
THE COURT: Mr. Neureiter.
I have, I think, a matter of old business, in that
when we were last together on February 28, and in connection
with defense motions regarding grand jury matters, at that
time, the Government submitted under seal some transcripts, and
then it was agreed that additional material would be submitted,
and it was on March 11. And I have reviewed, as we agreed that
I would, the transcript of the empaneling of the subject grand
jury by Judge Thompson on January 3 of 1995. Also a transcript
of Judge Cauthron's instructions to the grand jury at the
Tinker Air Force Base on April 25, 1995, which included an
additional voir dire of grand jurors regarding the events of
April 19 and following.
Also, I have reviewed the motion and order to extend
the term of the grand jury, an order signed by Judge Russell.
Also, a partial transcript, at least of testimony of
Jennifer McVeigh, transcripts dealing with procedures and
questions -- well, procedures dealing with questioning by grand
jurors themselves and a couple of transcripts where there were
questions, and then material dealing with the grand juror,
Mr. Heidelberg.
I think that the best procedure for us to follow on
that probably is for me to do a written order making my
determinations on the basis of what I reviewed.
I would say simply preliminarily that I do not think
that further proceedings are necessary with respect to those
motions, and they will be disposed of on the basis of the
information that has been made available; and that is, of
course, I'm operating on the assumption that Government counsel
have provided to me all that is pertinent.
I think, Mr. Mackey, you undertook to do that. Wasn't
it you who had that?
MR. MACKEY: Actually, Judge, in conjunction with
Mr. Hartzler.
THE COURT: And Mr. Hartzler.
So you're confirming, I take it, on this record that
you've provided the things that were pertinent to the motions
as agreed.
MR. HARTZLER: That is correct. We reviewed all of
the transcripts of conversations with grand jurors when there
was not a witness present and gave to you, I believe, the
portions of all transcripts that referred to any questions or
procedures for questioning by the grand jurors.
THE COURT: Yes. And then the Heidelberg matter
included a declaration of someone with knowledge, and I have
that.
MR. HARTZLER: Right.
THE COURT: Yeah. Okay. Well, I'll follow this up
with an order that I think makes the recitals that I feel
appropriate to make and still comply with the provisions of
Rule 6 regarding grand jury secrecy. I simply wanted to make
that a matter of record and follow up to where we were on
February 28 when these matters were before us.
Now, we have today discovery issues and motions
dealing with the matter of Brady against Maryland, and also
there are these possible issues under the Classified
Information Procedures Act, CIPA.
I have -- I guess the most recent filing was the
filing yesterday by Mr. Jones, designated defendant McVeigh's
proposed procedure for the April 1996 hearing.
In reviewing that, I find that there is, I think,
something of a combination of things. Mr. Jones has asked that
I follow a procedure taking item by item; and I think this
tracks with the December 21 material for discovery but now
asking for specific ruling on a number of items.
In reviewing them, Mr. Jones, it seems to me that we
have a combination of things, some Rule 16 matters. Some, I
suppose, are Brady matters. And in thinking about where we
are -- and there has been an exchange back and forth here about
the compliance or lack thereof with respect to the agreements
on discovery -- and this refers back to an agreed order that
was entered earlier by Judge Alley -- it appears that the --
not unexpectedly, I suppose -- that agreement has broken down
and that we don't -- we're not now in full agreement.
And as I've thought about the areas of disagreement
insofar as they're revealed in the papers filed, I think we
should break these areas down. I think that we should talk
about Rule 16 discovery and where we are with respect to that.
And that, I suggest, is the first order of business here.
And then the second thing is these differing views
about Brady. And of course, the problem with Brady vs.
Maryland and the following cases is that they're all
retrospective cases. They're all cases that identify what the
Government should have done in hindsight after the trial; and
it is very difficult to deal with that kind of problem
prospectively before trial, because the Court is not in a
position to be fully informed with respect to what the evidence
is or what the information is, whether it's evidence or not
that might be a part of the Government's obligations.
So to the extent that there may be some dispute about
the law governing what the obligation of the Government is
under the Constitution, I suppose that can be discussed; but I
don't know how a court is in a position to say that this should
be disclosed or this area should be inquired into and the like.
Then we will address this matter of CIPA, also; but
here again, we have the unusual posture of -- The normal thing,
of course, is that the Government comes forward and asks for
the Classified Information Procedures Act procedures to be
implemented because there is a matter either because the
Government is going to use it or the defense has given notice
that it intends to use classified information, whereupon there
has to be a determination should it be declassified, redacted
or whatever. We're in an unusual posture here in that the
defense is suggesting that classified information be produced
for the defense in preparation of a defense; so that's another
area of some discussion.
But in my note, in my sense of orderly procedure, I
think we ought to start with Rule 16 and see where we are on
that.
So, Mr. Jones, you seem trying to proceed. You may.
MR. JONES: May it please the Court, your Honor, at
the time that we filed the motion about which your Honor is
addressing -- the lengthy one -- we were not certain at that
time how far our agreement with the Government would go or
whether we could reach an agreement, not certain about how the
case would unfold in terms of time; and so as your Honor has
correctly noted, we included a number of Rule 16 items in the
motion.
However, the Court has subsequently entered an order
granting us until April 21 to file a Rule 16 motion; and we
will file such a motion. And I --
THE COURT: I think what I said was until April 9 or
thereafter as necessary.
MR. JONES: Right. Well, we will file the Rule 16
motion.
I would like to --
THE COURT: By what date?
MR. JONES: Well, I thought we had one date, but
Mr. Wyatt --
THE COURT: Well, we can set a date today. I mean
that's --
MR. JONES: I thought it was the 21st, but Mr. Wyatt
is more knowledgeable about it than I am. But in any event, we
are filing a Rule 21 -- I'm sorry -- Rule 16 motion, and I
would like to ask the Court to consider whether it might be an
expeditious saving of time to defer those matters that are
addressed in that motion, Rule 16, until the Court hears the
Rule 16 motion because they will be included in that motion.
The reason for the delay in filing the Rule 16 motion
is that the method of production of discovery to us by the
Government -- and I don't mean to be critical in saying this,
but it has been in a fashion that it is difficult to track what
has been given and whether it is complete. And we brought with
us this morning the book that contains all the inventories, and
we are attempting -- I'm not sure how successfully -- but we
are nevertheless attempting to determine before we file the
motion what has already been produced so we don't have to
relitigate or repurchase the same real estate twice.
So I would like to ask the Court this morning simply
to exclude the Rule 16 matters until that motion is filed.
They'll be included in that motion, and then all the Rule 16
matters will be before the Court, and we could then proceed
only on those matters that we classify as Brady or exculpatory.
THE COURT: Well, your proposed procedure for today's
hearing and the hundred-and-some items include Rule 16 matters.
MR. JONES: It does, your Honor. And I'll be glad to
discuss those today if the Court would like to do that, because
they clearly are Rule 16. I was just simply trying to --
THE COURT: Well, that's fine with me. I was just
following up on what you filed yesterday, land I thought what
you were suggesting is that we go through each of these
matters, item by item, which seems very tedious and probably
unnecessary.
MR. JONES: I agree with your Honor. We did submit
that yesterday; and then in the process of thinking about it
further overnight and knowing the number of issues that the
Court had today, we just thought that it might be a better
savings of time to put all the Rule 16 material together.
THE COURT: All right. So what you're now suggesting
is that by the 21st of this month you would be seeking,
actually, like a motion to compel --
MR. JONES: Exactly.
THE COURT: -- under Rule 16.
MR. JONES: Yes, sir.
THE COURT: Now, Mr. Tigar, are you -- where are you
on Rule 16?
MR. TIGAR: Mr. Woods, your Honor.
THE COURT: All right. Mr. Woods.
MR. WOODS: Your Honor, may it please the Court, we
have not filed a Rule 16 motion. We have not filed any motion
to go through various items. As I represented to the Court
back in January, it was my feeling that the Government was
going to produce the discovery. They have done that. We have
over 20,000 witness statements. We have over 5,000 items of
physical evidence in our possession, and it's going to take a
lengthy time to digest all of that to figure out what we don't
have, if there is anything that we don't have.
But as Mr. Jones represented to the Court, the way
this has been produced to us is just in one huge mass volume,
and it's not a matter of we can go right to one point and say
yeah, here this is. We have the 20,000 witness statements in a
numerical order. They're not even in alphabetical order.
They're in numerical order as they were filed into the FBI file
over the past year. And so it's just a matter of having to
read and digest all of that.
THE COURT: Well, I thought there were some matters
that are indexed from what I got from Mr. Jones' papers.
MR. WOODS: They're broad categories that the
Government classifies as Brady, where they list various
witnesses in these broad categories.
THE COURT: Well, isn't there an index to the --
MR. WOODS: There is an index with names, your Honor.
THE COURT: To the 302's.
MR. WOODS: There is an index, but they're filed in a
box in numerical order. We do have an alphabetical index, yes;
but my point to the Court is it's going to take us some length
of time to digest all of this before we can address a discovery
motion pointing out what, if anything, has not been given to
us. And so basically, my position is I don't have a complaint
on discovery at this time until I can digest everything that
I've been provided by the Government.
THE COURT: Do you have an expected date by which you
might be able to have that all sorted out?
MR. WOODS: No, your Honor, because it's going
exceedingly slow. We have a number of investigators and
lawyers working on it, but I think we're only through 4,000 of
the 20,000 witness statements, and we've been at it a couple of
months. It's -- it is very fact-intensive.
THE COURT: Okay. Well, all right.
We have Ms. Wilkinson.
MS. WILKINSON: Your Honor, perhaps it would benefit
all of us if we could go over what we have in fact provided to
the defense. I believe that although you want to deal with
Rule 16 and Brady separately, which we believe is advisable, I
think some of these issues overlap. And if I could just give
an outline for the Court of what we've provided so far.
THE COURT: All right.
MS. WILKINSON: We have provided 13,640 FBI 302's,
which as you know are some list of witness statements when the
FBI interviews potential witnesses and follows other
investigatory leads in this case.
We have also provided 7,429 FBI inserts, which are
similar to 302's, although they normally report negative
information. That's a total of 21,069 potential witness
statements.
We have provided --
THE COURT: If I may interrupt a moment. The inserts
are contacts but not productive?
MS. WILKINSON: Normally, your Honor, they're not
productive. We can't represent that a hundred percent because
some other field offices have in fact used an insert the way we
would use a 302, but normally that's the division.
THE COURT: Thank you.
MS. WILKINSON: We have provided two master indices
for these FBI 302's. One is by witness name. The other is by
serial number. All of the 302's and the inserts are marked by
serial number, and that way we can determine that we have, in
fact, produced those 302's from 1 to 13,640 and that we're not
missing any of those.
THE COURT: What does serial number mean?
MS. WILKINSON: That is the number we use when the
document comes in from our investigator. It's a way of us
keeping track of all the reports that come in from around the
country in connection with this case.
THE COURT: So at the -- just a numerical sequence.
MS. WILKINSON: Correct. And we're providing those
reports to the defense in that sequence so that we can insure
that we are providing all of the reports.
THE COURT: All right.
MS. WILKINSON: Those indices are printed out for them
in hard copy. They're also provided on a disc so that they can
conduct searches, you know, if they're looking for certain
names or certain serial number. So they have the hard copies
of those reports. We also have provided 2 CD-ROM discs which
we are in the process of updating, which have the 302's on the
disc so that they will be able to search those CD-ROM discs for
the actual material that is on the hard copy of the 302.
THE COURT: And the search is through the serial
number?
MS. WILKINSON: No, it's through the actual -- it's
like a NEXIS search or Westlaw search. You have the CD -- say
Strassmeir, I know someone Mr. Jones is interested in. You
find the 302, and the whole report which discusses
Mr. Strassmeir or anyone who has had contact with him.
Wherever his name would come up, that report would come up.
THE COURT: And if there were multiple 302's relating
to him, they would all --
MS. WILKINSON: The search would provide that just
like when you search for cases and --
THE COURT: Well, don't presume too much. I don't do
those searches.
MS. WILKINSON: Perhaps when your clerk searches --
THE COURT: Yes. All right.
MS. WILKINSON: -- Brady cases.
We have, as you know, thousands of pieces of physical
evidence. The defense, both teams, have reviewed over
93 percent of that evidence. I believe Mr. Tigar's team has
reviewed 95 percent and Mr. Jones' team has reviewed 93 percent
that includes virtually all of the crime scene evidence. We
have another meeting with them at the end of this week where
they will be reviewing most of the other evidence that they
haven't seen.
We have provided them with over 10,000 photographs,
400 videotapes. We have provided them with copies of all of
the physical evidence that we have requested, and we are up to
date with those copies.
We have also provided a inventory of that physical
evidence. We call that physical evidence 1B, bulky evidence.
That's how the FBI marks it. And we have approximately 4,037
separate items which can include hundreds of pages. That is on
an inventory on a disc and on a hard copy. Same thing: The
defense can search that disc to look for specific physical
evidence.
We've provided them an inventory for 1A and 1C, which
are other types of paper evidence that sometimes come into the
case but which the Government doesn't intend to introduce at
trial.
THE COURT: Yes. So when you're using the word
"evidence" here as in physical evidence, you're talking about
what you're now expecting to use at trial?
MS. WILKINSON: On the 1B list is -- it's what we
could use, your Honor. I wouldn't say we intend to use all of
that physical evidence; but compared to the 1C and the 1A,
which are generally not going to be used as evidence, these are
the more likely ones.
THE COURT: These are things that are expected to have
some probative force.
MS. WILKINSON: Correct.
On the 1A inventory, there is approximately 6,550
items. Only 125 of those are potential government exhibits,
and we have taken and copied all of those and provided them to
defense counsel as well as the inventory of the complete 6,550
items.
The 1C has only 530 items, and we've provided that
inventory.
We've also provided 1,305 hotel and motel records,
which include 44 registration cards by the defendants McVeigh
and Nichols. We have also provided printouts of the guest
registration lists of those hotels where the defendants stayed,
which includes 70,286 different guests. So if they're looking
for witnesses to interview about these events, obviously they
have a voluminous list of people that they can contact.
We have provided telephone records including a full
inventory. We have specifically given them 2,464 individual
telephone records. We've provided an inventory on disc and in
hard copy again so that they can search for that information.
And perhaps most importantly, we've provided them 325
laboratory reports as of today.
Those laboratory reports provide all of the
information we have thus far on what our lab has done in terms
of testing all of the physical evidence that's involved with
this case.
When we turned over the 302's, your Honor, not only
did we provide the inventories and the indices, but we
categorized certain witness statements as arguably Brady. In
other words, we marked certain witnesses and serial numbers,
provided them in six different categories. As to the 302's, we
marked 2,236 as arguably Brady. That is under a very liberal
interpretation of Brady following your guidance from our first
hearing with you. We marked 1,567 at Category 1, which are
John Doe 2 or other suspects.
Those 302's, your Honor, involve every time the FBI
receives some kind of credible information about another
suspect or someone else who knew John Doe 2 or thought they had
seen him or identified him. They went out and interviewed
those witnesses, did the follow-up and prepared a 302.
We've also provided 1,270 inserts which are marked
arguably Brady, and 1,075 of those are in that John Doe 2/other
suspects category.
As for grand jury, your Honor, we have not turned over
grand jury to the defense, however, we have done a Brady review
of that grand jury; that is, looking for anything that's
arguably exculpatory as to both defendants. We provided a
letter to defense counsel noting two statements by witnesses
that we specifically believed could be Brady, and we also
referred them back to numerous 302's of witnesses where the
Brady that we found in the grand jury was the same that was
contained in the 302 of the witness.
As for the grand jury, they have 302's of virtually
all of those witnesses that are in the grand jury; so the only
thing that we've withheld as to grand jury are things that we
believe are pure Jencks Act material under 18 U.S.C. 3500.
That is, we provided the Brady. We're just withholding the
statements of persons that we are not sure whether they're
going to be witnesses or not.
The final category I think that falls under Brady that
the defense is interested in are threats to the Murrah Building
and claims of responsibility. We have told them that we are
analyzing the information that we have as to that and will
provide it. However, we have already determined that we have
provided 240 302's and 42 inserts that discuss potential
threats and claims of responsibility for this bombing.
Those, your Honor, are normally not people who called
in and said, I did the bombing, but they're normally, "I think
my brother-in-law was involved in the bombing," or "I think
someone else was involved with the bombing," or "I think the
Iraquis were involved with the bombing," or whatever the name
of the nation. So that's been documented in those 302's which
the defense has had since our beginning production in January.
We have been doing this all since last August, when
we -- the Court at that time signed an order. We have had
meetings with the defense counsel on a biweekly basis for them
to review the physical evidence. We've made these major
document productions on a monthly basis since January; and
whenever the defense calls or writes us letters or asks for
additional follow-up information, we have either tried to
provide that information or written them back, saying that we
decline to produce that material because we don't think it's
discoverable, we don't have that material, or we're going to
produce it at a later date.
THE COURT: I have a couple of questions.
MS. WILKINSON: Yes.
THE COURT: One -- and I don't remember whether I've
asked this before, frankly: Were there orders here for
electronic interceptions, or do we have wiretap or oral
interception orders in this investigation?
MS. WILKINSON: We do as to other witnesses, your
Honor, but not to the defendants. And we have provided those
tape recordings in that voluminous bulky evidence that I talked
about that's denoted 1B evidence. We've provided the tapes and
transcripts and transcripts of those wiretaps. We have not
provided, except for one incident, the supporting affidavit and
the applications and orders because it is our position that the
defense doesn't have standing to challenge those.
THE COURT: They don't. All right.
Now, one of the things in reviewing Mr. Jones' paper
filed yesterday: An area of inquiry here includes, I suppose,
what the Government knows about contents of the building before
the explosion, whether there were explosive materials within
the Murrah building. Have you done something about that?
MS. WILKINSON: We have, your Honor. There are 302's
indicating that the ATF and the Customs Service did have some
inert explosives in their possession and other explosives used
during their normal course of business, investigating cases and
training their employees. Those are documented in 302's.
There are also statements. There are allegations that ATF had
materials inside and they were carrying out another explosive
device. That's been documented through interviews and 302's
for the defense and for the Government for our investigatory
purposes.
THE COURT: Okay.
MS. WILKINSON: Your Honor, I should point out that of
those approximately 21,000 witness statements -- we're not
planning on calling 21,000 witnesses, in case you were worried.
We are providing all of those so that the defense basically
knows our investigation which, as you know, is very unusual in
a Federal criminal case. The law, the statutes, do not require
us to produce those types of statements. We only normally
produce statements of the witnesses we intend to call; but
because of the nature of this case and because we want the
defense to have the information they believe they might need,
although we don't believe much of that is Brady, for their
investigation, we have provided.
What we don't want to provide, your Honor, is
information that we haven't used in our investigation, which
we'll discuss later, under CIPA provisions and requests to
search intelligence information.
THE COURT: Thank you.
Mr. Tigar.
MR. TIGAR: If your Honor please, I hesitate to
contradict my colleague, but the some 20,000 statements that we
have received are in boxes. As of now, we are unable to search
them other than by serial number. We can't do LEXIS or NEXIS
word searches; and I wouldn't want the Court to believe that
the information is accessible to us in this way.
THE COURT: Are you telling me you don't have the
CD-ROMs?
MR. TIGAR: We have the CD-ROMs, your Honor. However,
in order to access them and make them tell us things, we have
to have computer programs. Those computer programs are in the
process of being installed on our machines pursuant to the
Court's order giving us the equipment. So I wouldn't want the
Court to think that we are now at the point where we can begin
to do these comparative searches to which my colleague refers.
It's going to take us some time to do that. That's simply by
way of telling the Court that this is a massive amount of
information, as Mr. Woods said. It requires a great deal of
resources in order to process it. We are moving through it.
We are not able at this point to tell the Court exactly when
that's going to be done, although we can say that it takes a
full 8-hour day to review 125 of these statements, which is a
pretty good day's work.
From these statements, we then get leads. The
investigators have to go out and follow up these leads because
there is a great deal of exculpatory information here,
particularly as to Mr. Nichols, and that area around Herington,
Kansas, and that Junction City/Herington area.
But I wouldn't want the Court to think that we can --
we've got some whiz-bang 21st Century thing all set up whereby
we can instantly search these things.
THE COURT: Yeah, but what I'm understanding you to be
saying is that you're not really contradicting Ms. Wilkinson
with respect to what has been provided. You're simply not in a
position to use it in the manner in which she suggests until
you get some software installed?
MR. TIGAR: That's correct, your Honor. Her recitals
of what has been turned over to us is, so far as my notes
reflect, accurate.
THE COURT: All right.
MR. TIGAR: I'm simply signalling to the Court that we
have a big job of work ahead of us.
THE COURT: All right.
Well, Mr. Jones, someone from your office, or your
side have any contradiction of what Ms. Wilkinson has recited?
MR. JONES: I don't have a contradiction. I have an
elaboration.
THE COURT: All right.
MR. JONES: The raw numbers that Ms. Wilkinson
references, I'm sure are accurate; but I think that -- like
Mr. Tigar, that the presentation is grossly misleading.
First of all, the documents were turned over on
January 23 and 24, ten months after the arrest of the
defendant. It is true that the physical evidence at various
stages has been made available since August.
But I think Mr. Tigar has correctly stated that the
CD-ROMs and these discs are useless to us.
The Court has previously authorized us to place this
on a computer program, just as you have with them. It will
take six weeks to do this. And one of the reasons that it
takes six weeks is because the documents weren't cleaned up
before we got them. To use her example of word search, that
only will work if the correct spelling of Andrew Strassmeir's
name is consistent throughout. If his name is misspelled, if
one S is dropped or another S is added, the search won't pick
it up. The search doesn't pick up serial numbers; and what we
were given were the documents in serial numbers, which is
helpful in the sense of it is a rough chronology of who was
investigated -- or rather, who was interviewed; but the --
someone in our office has physically had to go through 21,069
statements and put them in alphabetical order, which, as the
Court can imagine, is not an easy task.
Also, the inserts themselves, which is a third of what
was produced, are not alphabetized, nor do we have them in a
serial number. They are an entirely separate category and
approximately 500, maybe not quite 500 -- maybe 400 some odd of
all of these documents, the person who is being questioned or
interviewed is blocked out.
So the problem that we have, your Honor, to bring it
down to the matter the Court is interested in, is it's
difficult for us to tell whether that which we have requested
has been given until we have the complete computer search and
the complete alphabetized list made.
For example, let's say, because I think it's true,
that we ask for a 302 from Dana Bradley. Well, because she is
a key witness, that's one that's kind of easy to find. But if
we were asking for, say, Tom Smith, we wouldn't know whether we
had Tom Smith, if he was in an insert, without physically
checking it. And even if he's in the insert, he could be under
a protected identity where his name is taken out.
Now, as I say, we're going through those and trying to
work with the Government on resolving the protection of the
identity.
With respect to the physical evidence, our expert that
the Court has permitted us to retain recently has not seen this
and will have to work with the Government now that their
evidence is up here so that it may be inspected. But even with
this, there are a number of items that -- from our inspection
that we have requested that do not seem to have been produced.
Now, whether that's because they don't exist or if they do
exist, the Government is not aware of them or they're
withholding them on some claim of privilege, that's why we're
here today.
THE COURT: Well, except that's not exactly why we're
here today, if you're going to follow up with your motions
to -- motion to compel.
MR. JONES: Well, with respect to Rule 16, that would
be correct, your Honor.
THE COURT: Yes.
Is there something that the Government can provide
without giving up work product or something that could help to
move this process along by the defense?
MS. WILKINSON: Your Honor, we have had one of our
paralegals in weekly contact with both teams about this CD-ROM
technology, for example. We provided that back on January 23.
And I believe, in part, Mr. Tigar's office was waiting to buy
the software till they moved to Denver, till you had issued
your opinion on the change of venue. I'm not sure about
Mr. Jones' team, but we have been speaking with them. You
know, members of our team speak to members of their team on a
daily basis. We do follow up on these requests. In fact, as
to Mr. Jones' request to file a Rule 16 on April 21, when he
and his team members came to us several weeks ago asking for an
extension, at first, we declined. We asked them to provide us
with a list of the materials they needed. We have been in
contact with them so that, as I said earlier, when they ask us
for something, we try and provide it so we don't have to come
in front of the Court to resolve these disputes.
I'm not sure -- I would rather have Mr. Jones come to
us again to resolve any Rule 16 disputes before we file them
with the Court, unless there is something, of course, we've
declined to provide to them.
THE COURT: Well, it sounds like Mr. Jones' team, as
it were, is ahead of Mr. Tigar's team as far as reviewing this
material. I'm not saying this in criticism at all; but if we
need something that you don't have and the Government or
somebody can provide it, we ought to do it so we can get it
moving.
MR. TIGAR: Your Honor, we are -- I don't want to have
fewer gold stars on our chart on the wall than Mr. Jones is
getting today.
THE COURT: I'm sure.
MR. TIGAR: We are moving as quickly as we can.
We have rejected some of the offers that the
Government has given us about assistance because we don't want
their commercial providers in our space watching us set up a
search protocol to figure out what we think is important in
these documents.
That's just a recipe for difficulty with respect to
work product and privilege issues.
We have the computers. They are installed. The
software is on them, and our experts tell us that we are moving
ahead at a good clip. But the problem has been that we
simply -- no more would they come in with their people and say
well, here's all our work product and here's how we're going to
try our case. We've got to keep some wall of separation here,
and we drew that line very clearly and very early. And now
that we're in Denver with the computers, we're moving forward
in a quite satisfactory way.
THE COURT: Well, I think where we are is that there
is the opportunity for exchange here and with the reservation
of work product on all sides. I mean, I didn't -- I think I --
in asking you if there is something you could provide, I, of
course, expect you to reserve your work product and protect
that, as I do the defense counsel.
MS. WILKINSON: Your Honor, I believe both Mr. Jones
and Mr. Tigar would tell you that we have offered our
assistance and we have been willing to provide information that
they request unless it's something that we have a legal dispute
on. And those, obviously, we bring before the Court.
THE COURT: All right. Well, I think that's as far as
we can go at this time, then, on the general discovery.
One area of dispute certainly in the papers here is
the matter of the FBI laboratory. And Ms. Wilkinson has talked
about laboratory reports have been provided. Perhaps you can
address this. This all relates to the matter of this Agent
Whitehurst and an ongoing -- apparently ongoing internal
investigation in Justice.
MS. WILKINSON: Yes, your Honor.
Agent Whitehurst is a chemist in the FBI laboratory or
was at the time he started making these allegations about
improper procedures and specifically about certain examiners in
the FBI laboratory. He started writing letters back to the
Inspector General of the Department of Justice -- oh, I'm not
even sure when he started, whether it was in 1993 or 1994 or
1995. But in June of 1995, he made specific allegations about
an agent named Roger Martz in connection with the O.J. Simpson
matter. And in that case, the IG then started investigating
all of the allegations that Mr. Whitehurst had made previously;
and then Mr. Whitehurst started writing additional letters to
the Inspector General and has continued to do so to this date.
As of last week, when we checked with Washington,
there were 125 letters written by Agent Whitehurst, some as
long as 90 pages, some as short as one page.
Back in June of 1995, as you may know, Judge Ito
refused to allow Agent Whitehurst to testify in that matter
because he had no firsthand knowledge of the matters that he
was criticizing.
In that regard, in our case, Agent Whitehurst had no
involvement with the Oklahoma City bombing examination and the
laboratory other than participating in one partial examination.
At the beginning of the case, the clothes that Mr. McVeigh was
wearing at the time of his arrest by the Oklahoma state
troopers were put in a sealed bag. Obviously, at that time,
they did not know that he had any connection to this case.
Those clothes were turned over and flown to the FBI laboratory
after he was arrested on federal charges. Clothes were sent
back to the laboratory. The bag was opened. They were taken
to a testing area, and one of the chemists tested for --
conducted certain examinations. And Agent Whitehurst was asked
to conduct one test where he found no result. That was his
only participation in the Oklahoma City bombing; however, he
has made numerous allegations about this case and all of the
other major cases that the laboratory has participated in.
The Government has established procedures through the
Department of Defense to try and balance the IG's interest in
conducting a full investigation of these matters and fulfilling
our Brady and Giglio obligations in all of these cases.
What the IG has done is withheld some of the letters
so that they could confront the examiners that Mr. Whitehurst
is accusing, and then they have turned them over to a central
repository in the criminal division of the Department of
Justice. There are -- there are a team of assistant U.S.
Attorneys who are reviewing the materials and providing them to
prosecutors who are involved with these various cases.
We have received some of those items; and last week, I
received a copy of all 125 letters. We are reviewing those
letters, and we will provide the information that we believe is
required of us under Brady and Giglio and Rule 16 to the
defense counsel.
As I said, it's a voluminous record that Agent
Whitehurst has; made and although he doesn't have much personal
knowledge about this case or many of the others that he's
commenting on, we feel like we must review all of the letters
to provide information that, even if it's not directly about
our case, may be involved with the laboratory in aspects that
relate to our case. And we have no dispute with the defense
that we're not going to turn that over; it's just a matter of
timing.
THE COURT: Well, I suppose one of the contexts in
which this matter might be necessary to review is in -- I
assume that the evidence in this case will include testimony
concerning examinations of material. And, certainly, some of
it is going to include something to prove the allegations that
there was a bomb made and what type of bomb was involved.
MS. WILKINSON: That's true, your Honor.
THE COURT: If there is a problem with respect to the
protocol, if there is a problem with respect to the persons
conducting the test, all of those things, I think, are by way
of foundation and possibly voir dire before the introduction of
that testimony and those exhibits.
Now, I don't know. It may be necessary for us to
conduct a pretrial hearing with respect to that admissibility;
and I think perhaps that's the focus for addressing these
issues.
Do you see it that way, too?
MS. WILKINSON: Yes, your Honor. We agree with that.
THE COURT: Yes.
MS. WILKINSON: I don't see any problem with it. We
are just in the process of reviewing this. I believe
Mr. Jones' argument is that we've had this material for some
time. He's aware -- perhaps he is; I don't know what contact
he's had with Agent Whitehurst -- that Agent Whitehurst
continues to write these letters, the procedures that we've
established with the Department of Justice, and that although
we received some of the letters, we didn't receive the full 125
letters until last week.
THE COURT: Is there an ongoing -- I got the flavor
here somewhere that there is an employment dispute of some
type.
MS. WILKINSON: There is not an employment dispute,
your Honor.
THE COURT: Or an assignment or something like that.
MS. WILKINSON: Yes. Agent Whitehurst was transferred
to the paint analysis section, and there are some internal
investigations going on; but the most important one in this
case is the Inspector General's investigation, which has not
concluded. That is the investigation where the Department of
Justice hired five outside experts to help the Inspector
General review these materials and the allegations.
They have not prepared their report and finished it.
We anticipate that it will come out some time this summer, so
they still have an ongoing investigation.
As to Mr. -- or Agent Whitehurst's dispute with the
FBI about where he works, I'm really not familiar with that;
but I do --
THE COURT: Well, I don't need to address it. I
just -- there is an issue with respect to his credibility, I
assume.
MS. WILKINSON: Yes. That's very true, your Honor.
THE COURT: Now, you received a copy of this in one of
the pleadings filed by Mr. Jones. Attached to it is a
memorandum from the -- I think an Acting Assistant Attorney
General regarding the investigation.
MS. WILKINSON: That's correct, your Honor.
THE COURT: And communication to the field, U.S.
Attorneys. You're familiar with that.
MS. WILKINSON: Yes.
THE COURT: And you're following up on it.
MS. WILKINSON: We are. In fact, those are the
procedures that say basically in common sense terms prosecutors
who are involved with these type of cases with these agents,
please send all your information to the Department of Justice
criminal division so they can review it, centralize it and send
you back material that could be Brady. What that memorandum
says is the prosecutor himself or herself has to make that
determination and then, in turn, release some or all of that
information to defense counsel. And that's the process that
we're trying to follow, your Honor, because some of these
allegations obviously have impact on many other cases.
THE COURT: Thank you.
MR. JONES: May I respond, your Honor?
THE COURT: Yes, you may.
MR. JONES: Well, first let me say it's not
Mr. Whitehurst, it's Dr. Whitehurst; and he has testified as a
witness for the FBI in a number of high profile cases. Any
NEXIS or LEXIS search will show the extent of his academic and
professional background.
He made extremely serious charges against the FBI
laboratory and for a period of time handled those matters
internally. And they only became external when a major news
network inadvertently discovered something in the World Trade
Center bombing trial in New York City.
His allegations are serious enough that the Attorney
General herself appointed a five-member panel including
Dr. Gerard Murray of the National Forensic Laboratory in
Belfast to investigate his allegations; so they are not routine
run-of-the-mill employment dissatisfaction. They go to the
very heart of the integrity of the scientific inquiry that the
FBI laboratory may make.
With respect to this particular case, we have been
asking the Government for material on Dr. Whitehurst since
October, and we have yet to receive any of it. We have no
contact with Dr. Whitehurst. We have asked to interview him
and have been -- that has been resisted by the Government.
We received this memorandum from a member of the
press, not from Dr. Whitehurst or because of Dr. Whitehurst.
This memorandum is dated January 4 and today is April 8.
THE COURT: You got that from the Acting Attorney
General?
MR. JONES: Yes. The 125 letters are not 125 letters
involving Oklahoma City. They involve all of his cases. And
we filed with the Court last week a document from
Mr. Whitehurst -- Dr. Whitehurst to the office of the Inspector
General. And attached to it was a letter from Mr. Stanley
Rothstein of the terrorism and violent crimes section sending
to Mr. Moody, a convicted felon, convicted of the death of
Judge Vance, on January 24 material that they had received from
Dr. Whitehurst.
I don't understand why it's possible to send this
material to Mr. Moody within three weeks after it's received
and we can't get it four months later.
THE COURT: Well, what is it that you're asking for?
MR. JONES: What I want are the letters and reports
that he has made that criticize -- if that's what they do --
and I assume they do based upon the press reports -- the FBI
laboratory collection and analysis of the forensic evidence in
this case.
THE COURT: Well, that's, you know -- that's the focus
of interest here and --
MR. JONES: Yes.
THE COURT: And that's why I was suggesting with
Government counsel here that maybe the best way to approach
this is to have a hearing with respect to that evidence in
advance of trial.
MR. JONES: Well, except, your Honor, the reason why
we want it is because we have consulted with outside experts
and forensic laboratories, and we want to have our experts look
at that in time so that we can raise appropriate motions with
the Court, if they are necessary, concerning separate testing,
our ability to look at the protocols, at the printouts, the
photographs, whatever may have been done in this laboratory
process. And we see it as a -- something that we need to do
long in advance of trial in order to prepare for that hearing
that your Honor has suggested because -- and I don't want --
we're in a public setting. I don't want to discuss the FBI
laboratory report on the bomb at this point except to say that
it's a clearly contested matter among the three sides here; and
I don't see why we simply cannot get a copy of Frederic
Whitehurst's letter today.
Now, I don't know that I'm entitled to their analysis
of Whitehurst's letter, but I don't understand the logic that
Moody can get the Whitehurst letter and we can't. That's all
we've asked for at this time, is what allegations has he made
and could we have a copy of them.
THE COURT: About this --
MR. JONES: This case.
THE COURT: -- the testing done on material submitted
to the laboratory in this investigation.
MR. JONES: Yes, or criticism of the people that did
the testing in this case.
THE COURT: All right. Well, Mr. Tigar, I don't know
where you are on this controversy.
MR. TIGAR: We have joined in the motion, your Honor.
At the trial of this case, the Government will be required to
prove three things: First, that the testing procedures used
meet the Daubert standard; second, that the expert they tender
is a qualified expert, and third, that the particular
procedures used by that expert and the facts upon which he or
she relied meet the standards of the Rules of Evidence.
Mr. Whitehurst raises difficulties with respect to
each one of these Daubert elements.
Now, the personal knowledge issue is, of course,
irrelevant. Mr. Whitehurst's knowledge comes entirely from his
conversations with our adversary; therefore, they would be
admissible as admissions of a party opponent, the sole
provision of the Rules of Evidence not subject to the personal
knowledge requirement of Rule 602.
In this list that is provided here as an attachment to
Mr. Jones' motion, there are included the names, for example,
of James Thurman and David Williams, people who we believe did
have something to do with the forensic examinations in this
case.
Thus, in order to wind us up at trial, able to make
intelligent challenges to the Government's tender of expert
witnesses, and also should your Honor determine that the
experts are able to testify for us to be able to attack their
credibility.
THE COURT: Well, you see, that -- you mentioned
Daubert; and I think consistent with -- since Daubert, most
courts have held Daubert-type hearings in advance of trial.
And I would anticipate doing that here, whether we had this
controversy or not.
MR. TIGAR: Yes, your Honor. I believe that that's
what should happen. I think the Government should come up and
say that this is what we're going to have and this is who is
going to come in the box and do it.
THE COURT: Right.
MR. TIGAR: I simply wanted to point out that your
Honor's threshold determination that a witness is an expert and
that the procedures used are adequate would not foreclose us at
trial --
THE COURT: Oh, no.
MR. TIGAR: -- from having this information to put in
front of the jury. An expert is someone who wasn't there when
it happened but for a fee will gladly imagine what it must have
been like. That's our view of it. And I think we're entitled
to challenge that in front of the jury.
THE COURT: Well, I'm not suggesting that you can't.
Obviously, the value of any such evidence is a matter for the
jury to determine. And whatever is relevant to impeaching that
or determining that can be considered.
But I don't want to have this case and preparation of
this case delayed by sort of a parallel investigation of the
FBI laboratory.
What we're concerned about is what affects the
evidence in this case. And I think that the way to best
address that is to think of a -- I don't know that we can set a
time this morning, but think of a time when the Government will
be prepared to go forward with something of a Daubert
presentation.
MR. TIGAR: Your Honor, I understand about the
parallel investigation. I was making the point that if
Mr. Whitehurst has knowledge that would suggest that, say, one
of these people on this list is not a good scientist or
routinely fixes results, that testimony would be admissible.
Our position is that in a Daubert finding, we should be able to
present extrinsic evidence; i.e. extrinsic to the voir dire of
the particular expert tendered.
THE COURT: All right. Ms. Wilkinson?
MS. WILKINSON: Your Honor, we'd be prepared to
provide the letters to defense counsel in 30 days. That way,
there will be no problem with getting close to the trial date.
THE COURT: Now, when you say "the letters," are you
talking about 125 letters?
MS. WILKINSON: No. We're talking about the ones that
we believe are relevant.
THE COURT: To this case.
MS. WILKINSON: To this case.
THE COURT: All right. Those are the ones Mr. Jones
has requested.
MS. WILKINSON: Yes. As far as I know, there are no
reports. He asked for letters or reports. As far as I know,
Agent Whitehurst has just written letters to the Inspector
General outlining his grievances or his allegations about
examiners in this case and many others.
It isn't, though, just the letter about this case
specifically, because he also makes allegations about the
examiners that are involved with our case, but also other
cases; and we have to look at those to see if they're similar
enough that they would be something that the defendants would
be entitled to.
We also propose, your Honor, that we have a hearing in
August to resolve these pretrial matters and that we do it as
to our experts and the defense experts.
We are not asking the Court to wait for the IG
investigation. Obviously, that's a separate determination.
And even if the IG made some findings that were adverse, it's
arguable whether those would be admissible in this trial. We
disagree with Mr. Tigar on his theory of party admissions, but
we can get to that when the time is appropriate.
So we think if we set a date in August where we would
have all of our experts prepared and the defense would, we
could go through those pretrial hearings and deal with all of
those issues as to their qualifications.
I should make clear as to Mr. Jones' complaint about
the Moody case. In that case, the allegations were made much
earlier than they were in the Oklahoma bombing case. And the
judge in that case -- I believe the district court took up a
2255 and had a hearing -- I believe it was yesterday -- where
the court brought down the expert and did a hearing. And it
was discovered that the experts that were hired for the
Inspector General's report investigation also disagreed with
Mr. Whitehurst's allegations in that case.
And I know that the state counsel in the Moody case
has decided not to use Agent Whitehurst based on his
allegations in the Moody case.
THE COURT: So that was an evidentiary hearing on a
2255?
MS. WILKINSON: Yes, your Honor.
Also, as I said, back in June of 1995, when Judge Ito
declined to permit Agent Whitehurst to testify, it wasn't just
based on his lack of personal knowledge, but it was based on
his lack of knowledge of the rules. Our rule, which is
similar, Rule 703, as you know, permits an expert to testify if
he has scientific, technical, or other specialized expertise.
And Agent Whitehurst seems to be preoccupied with the fact that
you can only testify about scientific matters if you are a
scientist and that you can only testify about matters in which
you have Ph.D. qualifications. That is clearly not the law
under the Federal Rules, and that will be one of our arguments
at the pretrial hearing in August, if you set one.
THE COURT: All right.
MR. JONES: Your Honor, may I respond?
THE COURT: Yes. What we have specifically, though,
is that these letters are going to be provided to you within 30
days.
MR. JONES: Well, yes, but I object to Counsel's
attempting to assassinate Dr. Whitehurst before we even get any
of this material. This is irrelevant to our case, and it's not
accurate. We submitted to the Court, attached to our report to
the Court, his report in Moody, which goes into considerable
detail besides the experience and qualifications. I don't care
whether he's right or wrong there. I want to know whether the
FBI lab is right here, and I still don't understand why it
takes 30 days. We oppose an August setting. The Government
wants to set hearings before we get what we need to prepare for
that hearing, and then we get into these disputes and so we run
right up against the hearing date.
THE COURT: Well, I don't expect to set the hearing
this morning.
MR. JONES: All right, sir.
THE COURT: I expect to take this, as other matters
here, a step at a time. And are you aware of this evidentiary
hearing apparently that was conducted?
MR. JONES: I was not aware of it at all.
THE COURT: Well, perhaps a transcript of that hearing
may be of value.
MR. JONES: I'll try to get one.
The point, though, that I'm making is that -- and
before we leave the question of the letter, we want all of the
letters. And we'll characterize them as "letters," since she
says there is no report that relates to the Oklahoma City
bombing case. But -- and I didn't hear this -- where he's made
allegations of misconduct -- and I'm using that in a broad
sense -- of an examiner who examined material in this case, I
think we should be aware of those allegations.
THE COURT: Well, I interpreted that to include
anything, any allegations about personnel who did the testing
in this matter.
MS. WILKINSON: That's correct, your Honor.
THE COURT: All right. So it's covered.
MR. JONES: Thank you.
THE COURT: Well, I think we'll leave with the
Government's agreement to provide what we've just talked about
within 30 days. What we do with it from there on out, we'll
discover as we go forward.
MR. JONES: No pun intended, your Honor.
THE COURT: No, it was intended.
Now, we have this whole matter of where we go with the
Classified Information Procedures Act. And I think that before
we start down that road, maybe we should take a recess so that
people sort of form up how you're going to present that.
Frankly, I'm confused as to how best to hear it. And
as a part of that, there was filed by Mr. Jones a motion to
submit some material under seal and in camera. That motion is
in the open. The material that was attached in sealed form was
ordered by me to remain sealed.
And I have not reviewed it myself because I think it
should be discussed here as to whether I should examine it.
So before we go into this whole area, I want Counsel
to know that I have not read what was submitted under seal and
will not do so until there is an opportunity to discuss it
here.
So we'll take a 20-minute recess.
(Recess at 10 a.m.)
(Reconvened at 10:20 a.m.)
THE COURT: Be seated, please.
All right. The subject is the Classified Information
Procedures Act. Ms. Wilkinson?
MS. WILKINSON: Your Honor, although the mention of
classified information I think makes most criminal lawyers and
judges nervous, it really has very little to do with the issues
that Mr. Jones raises in his briefs. He's really making a
wide, overbroad and speculative discovery request -- excuse me.
He's making a wide, overbroad and speculative discovery request
and couching it in terms of classified information.
Under the Classified Information and Procedures Act,
the court normally gets involved when the Government, as you
stated, says there is classified information that is relevant,
discoverable, Brady; that needs to be provided to the defense
in some form, or the defense says that they have classified
information in their possession or have received it from the
Government that they know they need to prepare their defense.
The most famous cases are of Poindexter and North,
where those defendants claimed that because of their
relationship with intelligence agencies and their employment,
those issues that were classified by the Government were
central to their defense against the charges. That is
obviously not the case here.
The defendants are requesting classified information
just as they request other information about the case, hoping
that there would be some tie to some other terrorist
organization.
In fact, in their pleadings when they request
information, it is so broad that they ask for any information
on an individual or a group with a motive, means and/or
opportunity and who or which has expressed a desire to injure
or damage U.S. property, employees or citizens.
In other words, they are asking the Government to
provide any information on terrorists or terrorist groups that
they may have had a motive to harm the United States'
interests.
They attach to this request specific demands for
information about the roles of Sudan and Iraq in the World
Trade Center bombing, links or ties between German Neo-Nazi
groups and the KK; the Christian Identity Movement; The Order;
The Covenant, the Sword and the Arm of the Lord, and links to
other terrorist organizations from Iran and Iraq.
They also complain or contend that they are entitled
to information from a wide variety of organizations such as the
Sikh Separatists, spelled S-I-K-H; the Ananda, A-N-A-N-D-A,
Marga cult from India; the Manuel Rodriguez Patriotic Front;
the Movement of Revolutionary Left of Chile; the Provisional
Irish Republican Army; numerous factions of the Palestinian
Liberation Organization; the Armenian Secret Army of the
Liberation of Armenia; the FNLM, and, of course, the South
African Congress.
Without giving any type of information why this type
of information is relevant to their case, they claim that any
type of terrorist organization such as these organizations or
any others that may have tried to harm the United States or
expressed a desire or means to harm the United States should be
revealed to them whether the information is classified or not.
To support this laundry list of requests, they attach
a history of terrorist activities around the world since 1983,
somehow trying to justify that this information is tied to the
Oklahoma City bombing.
Our position, your Honor, is that they are not
entitled to this request that the Government search
intelligence agency files or for that matter any other files
for this type of broad information without any kind of
particularized showing on how it would be relevant and
exculpatory to their case.
As you know, there is a long line of cases in the
Tenth Circuit and in the Supreme Court which say that Brady did
not provide for discovery in criminal cases and did not create
a right to it. They say that any potential Brady information
that's based on mere speculation that evidence might help the
defense is not discoverable by defendants. In Wood vs.
Bartholomew at 116 Supreme Court 7 and in Moore vs. Illinois at
408 U.S. 786, the Supreme Court specifically held that the
Government did not have to disclose evidence pointing only
tangentially or speculatively to possible other suspects.
It is the Government's position that the defense's
request for classified information and demands for us to search
intelligence agencies' files who have not participated with us
in the investigation in the criminal investigation, is
inappropriate, overbroad and should be declined by the Court.
Specifically, if the defense is claiming that the
suspects or all potential suspects who could have bombed or
harmed the United States are relevant, we would turn them to
Hopkinson vs. Shillinger at 866 F.2d 1185, a Tenth Circuit case
in 1990, where the court found that information about other
suspects whose connection to the offense is speculative does
not fall under the rulings of Brady and its progeny.
And another case in the Tenth Circuit, United States
vs. Comosona at 848 F.2d 1110, found that information that is
not facially -- is facially nonexculpatory that might possibly
be favorable to the accused through some sort of inferential
reasoning is not discoverable by the defense.
Your Honor, as a factual matter, the defense claims
that the intelligence agencies participated and generated
voluminous reports in connection with the Oklahoma City bombing
case. That is not true.
Back on April 19, 1995, when the bombing occurred, the
Federal Government put together its resources, including a
representative from one of the intelligence agencies, to
determine if we could find out who had organized and carried
out this heinous bombing.
By April 21 -- that is, two days later -- the
Government learned through the FBI's diligent investigation
that the bombing had been carried out by a U.S. citizen; that a
Ryder truck had been used, a VIN number had been traced, and
Mr. McVeigh had been identified as the individual who rented
that truck.
At that point, your Honor, the intelligence agencies
were no longer involved with the preliminary investigation. I
use the term "preliminary investigation" because the
intelligence agencies came forward only to help us try to
identify who any possible suspects could be.
They did not provide reports to the Government. And
in fact in August, approximately three months after the
investigation started, we specifically requested if they had
any information on Mr. McVeigh, Mr. Nichols, or any of their
aliases, and the CIA told us they had no such information.
On April 21, after we determined that Mr. McVeigh was
involved and Mr. Nichols turned himself in and mailed
statements to the FBI, the intelligence agencies were no longer
involved with any of the investigation.
The National Security Act of 1947 prohibits
intelligence agencies from investigating U.S. persons for
domestic criminal violations. Therefore, the NSA, the CIA, and
the DIA, the Defense Intelligence Agency, were not involved
with this investigation.
And despite Mr. Jones' claims that the representatives
of the White House and other persons of the Federal Government
maintained on the first few days of the bombing that they were
marshalling all of our resources, that does not lead to his
conclusion that we have had the intelligence agencies produce
reports for us in this case. They have not been, to use the
legal term, "aligned" with the criminal investigation, and they
have not provided us information.
Nevertheless, back in February of this year, we sent a
letter to the Central Intelligence Agency, the Defense
Intelligence Agency, and the National Security Agency asking
them for all material they had under Brady, Rule 16, and Jencks
Act and any information they had which would tend to show that
these defendants did not participate in the crime or that
others carried out the crime.
We are in the process of working with them to review
any information that they might collect and determine if there
is any Brady information or the like in their possession.
If, and only if, your Honor, we determine that there
is Brady, Giglio, Rule 16 or Jencks Act materials possessed by
the intelligence agencies, we will then come forward to the
Court to determine if we can reveal that information in (1) an
unclassified or declassified format, which is obviously most
advantageous to all of us; (2) if that's not feasible, in a
substituted or redacted format or a summary.
That, your Honor, is what CIPA provides. All CIPA
permits is for the Government or the defense to come forward
once information is ruled discoverable and provide a way for
the Government or the defense to use it in a criminal case
protecting some of the intelligence equities that may exist.
So we believe that the --
THE COURT: When do you expect to be able to make a
statement about that?
MS. WILKINSON: Your Honor, we have reviewed some of
the documents, but we have not finished the documents.
As you might imagine, we sent a letter which required
a very broad search by these agencies, and they are erring on
the side of caution, as they should, to pick up all documents
that may arguably fall under these categories. And I would
imagine we would need two more months to complete our review
with them and make final determinations.
THE COURT: All right.
MS. WILKINSON: But at this point, your Honor, we are
aware of no information that these agencies have in their
possession that would fall under Brady, Rule 16 and Giglio.
THE COURT: Now, there is a conspiracy charge here, of
course, without identification of co-conspirators, as is the
language of the indictment.
At some time, I think at least for purposes of the
co-conspirator statements, we're going to have to have the
Government identify what co-conspirators there are with respect
to 801(d)(2)(E). When do you expect to do that, or when could
you do that?
Some suggestion here, of course, is co-conspirators,
we don't know who they are; they may be involved with
investigations done elsewhere.
MS. WILKINSON: Your Honor, I'm not sure when we would
be able to have that information; obviously before trial,
because we'd have to meet the standards for co-conspirator
statements.
But I can tell you as of today, we have no information
showing that anyone but Mr. McVeigh and Mr. Nichols were the
masterminds of this bombing.
The co-conspirator statements that we would intend to
introduce are mostly statements from these two individuals
which are admissible also under other rules of evidence.
And I would imagine approximately four to five days
before trial, when we are going to turn over our witness
statements, we're going to be able to identify those
co-conspirators to make the arrangements before you on the
admissibility of co-conspirator statements.
I need to clarify one thing I said to you before the
break. I was talking about materials removed from the building
on the date of the bombing, on April 19. There were no live
explosives removed from the building. There were no live
explosives as far as we know in the building. I used the term
inert. "Inert" means it was devised to look like an explosive
device, but there was no aluminum -- I mean no black powder or
nitroglycerin or other things used to make explosives. So
there were no live explosives in the building on April 19.
THE COURT: So when you say "explosives," you're
talking about explosive material.
MS. WILKINSON: Not even explosive materials. Inert
explosive. They're training devices, something that's --
THE COURT: Mock.
MS. WILKINSON: A mock device, yes, sir.
THE COURT: Okay. Thank you.
Well, Mr. Jones . . .
MS. WILKINSON: Your Honor, I forgot -- I forgot to
raise one issue you had raised before the break about the
sealed documents.
I reviewed Mr. Jones' pleadings that he provided
yesterday afternoon where he now has changed his classified
information procedures request to ask that the Court review
sealed documents which are also ex parte; that is, the
Government has not been provided with copies.
THE COURT: Right.
MS. WILKINSON: I assume it's to show that he has some
evidentiary basis for making these requests, particularized
showing of why he needs this intelligence information.
The Government is opposed to the Court reading those
ex parte. We believe that we are entitled to review those as
we would if he made any discovery requests that he needed more
information from the Government. We're happy to keep those
under seal in case that they reveal some potentially classified
information; but we see no reason why the Government should not
review those and be able to provide the Court with the
arguments either that the investigation has been followed up
and that information has been provided to the defense or that
we don't believe that information is relevant or makes a
sufficient showing to force the Government to search and engage
in additional investigation.
THE COURT: All right. Thank you.
MR. JONES: May it please the Court, I would first
like to address the motion that I filed yesterday that the
Court receive this material ex parte and in camera. And
specifically I rely upon two federal cases. First is United
States vs. Clegg at 740 F.2d 16, which is a 1994 case arising
out of the Eleventh Circuit. And at page 17, the Eleventh
Circuit says the district court allowed the defendant to submit
an in camera ex parte affidavit setting forth in detail why the
requested information was material to the preparation of the
defense. After review, the district court ruled documents were
discoverable. This was a case involving national security
issues.
In United States vs. Poindexter, the former national
security adviser for President Reagan, in the District of
Columbia, a case before Judge Gesell reported at 698 Fed. Supp.
316 at 321, which is a 1988 case, Judge Gesell said, "The Court
will hear counsel for Defendant North at what may prove to be
more than a single in camera ex parte oral presentation
commencing on July 14, 1988, at 9:30 a.m., for the sole purpose
of being informed without disclosure to the independent counsel
of the reasons why he and his counsel consider the specific
items of classified information he is seeking under (1) above
to be required as relevant and material to his defense."
So I think that the case law is quite clear that the
Court has the discretion to submit this material from us
ex parte in camera to be reviewed only by the Court.
The reasons that we ask that the Court review it
ex parte in camera is first because it involves discussing with
the Court certain methodology and certain people that we have
interviewed who we do not believe have been interviewed by the
Government, or by Mr. Tigar for that matter, who have told us
certain matters that directly relate to national security
information that we are seeking.
Secondly, there is certain information in that
material, in fact approximately a third of it, that might be
embarrassing and affect the right to a fair trial of one party
to this case.
Third, there are certain confidential sources of
information given to us from people associated with the
Government and/or the press and/or public at large who have
requested anonymity, and the information that they have given
is of such importance that we are pledged to respect that
request. And for those reasons, we ask that the Court receive
it ex parte in camera.
I would point out to the Court -- and this is the tail
end of my section dealing with the ex parte in camera
submission, and it goes to some of the matters that
Ms. Wilkinson addressed. And before I get to the general
request, I want to address the specific.
Ms. Wilkinson and the Government are framing the issue
in a way not contemplated by the statutory scheme. The
statutory scheme provides that we file the motion. And the
case law is quite clear that the burden that we have at this
time is, quote, "a low one."
Now, the Government comes back and says, well, in the
case that quoted that particular one, although there are
several cases, they were seeking the discovery of the
defendant's own statement. But that's a distinction without a
difference.
The case law is clear that when we make the request
for national security information that the Court's order that
that be produced is a low threshold. Once the Court orders it,
then the Government responds by either producing it or, more
likely and more frequently, claiming a privilege.
At that point when the Government asserts the
privilege, then we have to come forward and show how the
material is relevant and how particularly it relates to our
defense.
What Ms. Wilkinson and the Government are attempting
to do is to take the third step and make it the first step, by
saying to the Court first of all, there is nothing to produce
that we know of; but, of course, we've asked them in February
to produce it. The truth of the matter is, in laymen's terms,
she doesn't know whether they have anything or not because the
CIA and the NSA have not responded. So it's an open question
yet as to whether there is anything.
Secondly, they are attempting to take away from the
Court the order that the Court would enter which would tell
them what to search for. In other words, she is framing the
search.
Well, considering that the Government didn't think
there was anything exculpatory in Vickie Beemer and Eldon
Elliott and Lea McGown's statement, I hardly think it is a
surprise that the CIA and the others will come back and find
nothing.
The correct procedure for CIPA is for the Court to
order the Government to produce it and to tell the Government
what to produce. Then the Government takes the Court's order
to those agencies and the agencies search their files and match
it against what the Court says, not what one of their
co-counsel says that's in another branch of the executive
department.
However, we went ahead, although we don't suggest that
the Court change the CIPA procedure, and prepared a detailed
submission backed up with affidavits and statements and other
physical objects to support the particularity, which I am
certainly prepared to discuss with the Court, but I don't think
it should be done in a public session.
Rather, since we are in a public session, I would now
like to address the specific issues that Ms. Wilkinson raised.
THE COURT: Well, to back up for a moment --
MR. JONES: Yes, sir.
THE COURT: -- the material that's submitted under
seal at this time is: Is it contemplated that you propose
after that's reviewed, if it is, ex parte and in camera to
submit to me an order to be entered requiring the Government to
respond with respect to classification of the material?
MR. JONES: Yes, your Honor.
THE COURT: So that recognizing that at this moment,
as I understand your statement, there is in the sealed
documents the material that should be sealed because it reveals
defense -- your defense efforts, among other things.
MR. JONES: As well as our defense hypothesis.
THE COURT: Yes. And which is a matter that should
not be disclosed to co-counsel or to the Government.
MR. JONES: Correct.
THE COURT: Not co-counsel. Co-defendant's counsel.
MR. JONES: Yes, sir.
THE COURT: But then ultimately, there has to be
disclosure at least to the Government of what it is that you
seek to determine, whether it's classified and should remain
such.
MR. JONES: Yes. But that's a different issue than
telling them why I think it exists and who has told me it
exists and what use I will make of it.
THE COURT: I understand. But you would be coming
forward with a proposed order for me to enter to give to the
Government with material for them to review.
MR. JONES: Yes, sir. And the order would further
provide, as it must, that counsel don't have to give it to me
until first --
THE COURT: Yes.
MR. JONES: -- the Court hears its claim of privilege.
So the mere fact that you order them, what you're really doing
is ordering them to search for certain information that I have
characterized and then assuming that I make the low threshold
showing; and then they can come back and say all right, we
found the travel records of Sam Smith, as an example; and --
but we have a privilege on that and our privilege is blank.
So I don't get those records. The Court then
determines the applicability of the privilege. And that, I
believe, is the correct way to proceed, not the way that she is
suggesting.
THE COURT: So you would be submitting to me an order
that you believe is justified under the sealed document.
MR. JONES: Absolutely.
THE COURT: And is there a proposed order in the
sealed document?
MR. JONES: There is not a proposed order in the
sealed document, your Honor, because as late as yesterday, I
received additional information and I am prepared to narrow
some of the requests more specifically.
THE COURT: So are you going to submit, then, a
proposed order?
MR. JONES: I will.
THE COURT: And submit that under seal?
MR. JONES: I will.
THE COURT: So that it could be evaluated with the
other information?
MR. JONES: Yes.
THE COURT: You know, as it stands, I don't know
what's in there; but I would probably be lost looking in there
without knowing what is this all to come down to.
MR. JONES: The material is accompanied with, if I may
use an expression, a road map at the beginning, saying this is
what we have, and then at the end, saying this is how we think
it's relevant.
But clearly, the Court would need or should desire, as
it does, a proposed order so that you can see if the items that
I have requested are supported by the information that I have
supplied both publicly and under seal.
THE COURT: Okay.
MR. JONES: May I proceed, your Honor?
THE COURT: Yes. I guess I need to know when you --
when you would be submitting such a proposal.
MR. JONES: I would try to have it here by Monday.
THE COURT: All right.
MR. JONES: Your Honor has been on the bench long
enough to catch the nuances of statements of counsel; but I
hope that I may with liberty call the Court's attention to two
that Ms. Wilkinson made.
She said the Government has information only that
Mr. McVeigh and Mr. Nichols are the masterminds of the bombing.
Well, of course, that's not what the charge is. The charge is
a conspiracy and various substantive crimes. Whether or not
they are the masterminds or not does not preclude the
possibility that others may be involved.
What the Government is essentially doing is filing the
equivalent of a motion for summary judgment that the defendants
are guilty and, therefore, since they are guilty, there can't
be anybody else involved and we don't need to provide any
further information; and as one of the statements that she
makes in support of that, that Mr. McVeigh has been identified
as the person that rented the Ryder truck. And I respectfully
dissent.
The evidence is that he is not the person that rented
the Ryder truck. He is not 5'10", 5'11." He doesn't weigh 180
to 185 pounds, he doesn't have green eyes and he doesn't have
acne. And those are the descriptions of the person that
identified himself as Robert Kling.
It wouldn't make any difference whether they did
identify Mr. McVeigh. And I believe Mr. Elliott did in June at
a time when Mr. McVeigh was known to even monks on the side of
the Himalayan mountains in Tibet.
The question is not who are the other co-conspirators
of Mr. McVeigh, although that might clearly relate to the
punishment phase under Chaney vs. Brown. And we would be
entitled to it, because under Chaney vs. Brown, there was a
suggestion that there was evidence that suggested that the
defendant there did not personally kill the defendant -- the
deceased and, therefore, they were entitled to information that
might mitigate his role in it.
And while I raise that ground, I don't concede by
raising that ground that Mr. McVeigh is involved or that he is
guilty. Rather, what I say is that there is information held
by the Government that points to others, not McVeigh plus
others, but others that are responsible for the bombing of the
Oklahoma City building. And we want that evidence in order to
prepare our defense.
It isn't speculative. It isn't remote. We name
specific countries. We set forth the specific reasons, the
specific informants, their credibility and the evidence that we
rely upon to make it relevant.
With respect to the general issue of national
security, our motion could be characterized as both a Rule
16(a)(1)(C), in that we are seeking material preparation for
the defense, although it's outside our usual Rule 16 motion,
because there is a specific statute here, and also because it
is Brady.
We believe that we need this information to show that
the Oklahoma City bombing of the Murrah building was planned,
financed and executed by a foreign state or a terrorist group
under the control of a foreign state and probably in connection
with a domestic terrorist organization.
We have outlined to the Court that should this motion
be granted that we have a team of two or three experts, all of
whom have in the past had high security clearances, who have
particular expertise and knowledge in the intelligence
community and specifically with reference to some of the items
here who are capable of evaluating that material and advising
us with respect to its reliability and credibility.
With respect to the specific items or -- and some of
the general ones, we are prepared to narrow them. I don't know
whether the Court wants me to narrow them on the record now or
simply to do that in another way by drafting the order so that
I don't unnecessarily take up the Court's time.
However, a number of the requests are specific
requests as opposed to general; so the characterization by
Ms. Wilkinson that these are overbroad is clearly inaccurate.
Requests 16, 17, 18, 19, 20, 21, 22, 23, 26, 27, 28, 29 and 31
are specific requests.
THE COURT: Are you referring to the numbers in this
April 8 --
MR. JONES: Yes.
Furthermore, it is not true that I have requested
information concerning the wide variety of organizations that
she has listed, although perhaps I should, since she has raised
them today; but I don't. I am specifically seeking information
that relates to the Republic of Iraq, to the Republic of Iran,
Sudan, the connections, if any -- and I believe there are --
that exist between one or more of those groups and certain
terrorist groups inside the United States and in the Federal
Republic of Germany and in the United Kingdom. That's about as
specific as I can make the requests. And in addition to that,
I have certain individuals in the United States that I identify
by name.
The general basis as set forth in the documents that
we filed with the Court -- and I will not go into them and
belabor them because I'm sure the Court has read them -- but it
is clear that when this bombing occurred, based upon the public
record and statements made publicly by the President's Chief of
Staff and by the director of the ATF and by FBI officials
speaking on background basis only that the immediate attention
of the investigation was focused on the Middle East.
Now, there is a reason why that was done. They didn't
focus on Australia or south Asia or China or the former Soviet
Union or some remote country in Africa. It was focused
specifically on the Middle East; and the reason it was focused
upon the Middle East is because there is evidence in existence
in the public record, some of which we submitted to the Court
and certainly private intelligence data -- and when I say
"private," I suppose I should say classified intelligence
data -- that one or more of the countries in those -- in that
area have engaged in terrorist activities both abroad and in
the United States against United States property, personnel and
citizens. And that's documented in the chronology.
Now, these people that were conducting this
investigation were not fools. They made these inquiries
because the logic and experience of international terrorism,
particularly as it relates to the United States both here and
abroad, required their attention to focus in on those
particular nations.
When Mr. McVeigh was arrested, it is certainly true, I
believe, that that investigation was aborted and did not go any
further.
But yet if we look carefully at the Government's
statements and pleadings and some of the evidence that has been
furnished to us -- and I'll just refer to the public record --
there is a suspicion of foreign involvement. For example, the
grand jury indictment specifically found that the grand jury
believed -- that is to say, it had probable cause to believe --
that, quote, "others unknown," close quote, to the grand jury
were involved. It doesn't say other unknown or John Doe 2
unknown. It said, "others unknown."
The Government has announced repeatedly an interest in
pursuing a John Doe 2, an individual whose appearance suggests
a Middle Eastern, Hispanic or perhaps American Indian
complexion; an individual not yet found, but an individual that
exists as certainly as I am standing here in front of you. And
all that one needs to do is to examine in camera the 302's of
the interviews with Lea McGown, her daughter, her maid,
Mr. Elliott, Mr. Kissinger and Ms. Beemer. These individuals,
separate and apart from the other at a time before the
$2 million reward was announced, before it became a worldwide
publicity event, were describing the same individual, though
they were a mile and a quarter from each other.
He was at the Ryder truck rental with Robert Kling,
and he was at The Dreamland Motel. In fact, one witness goes
so far as to place him inside the Ryder truck.
There is another witness whose statement is made
available to the Court because it's a part of the public
record, a woman in the Murrah building that claimed to have
seen a John Doe 2 look-alike as the only person in the Ryder
truck exiting the Ryder truck moments before the explosion,
walked to the back of the truck, walked to the front of the
truck.
So clearly, despite Ms. Wilkinson's very sincere
statements, there are a number of people who claim to have seen
another individual who has not yet been taken into custody, in
addition to the grand jury statement of others unknown.
The evidence that we submitted to the Court in the
public findings shows that the FBI's initial communications
suspected Islamic Jihad of being involved in the matter. There
is an affidavit that is now in the public record when the
Jordanian American was taken into custody as a material witness
that states that three Middle Eastern individuals were seen
leaving -- running from the immediate area of the Murrah
building just before the bombing.
In addition to that, there is an FBI bulletin relayed
through the Oklahoma City police department according to the
public record of an all-points bulletin for a brown pickup; and
that information is also submitted to the Court.
The information that came from the wire services and
the interviews including the interview of Mr. Leon Panetta,
show that from the early stages, the FBI and the CIA and the
National Security Agency and the National Security Council were
checking their data bases, their index, sending out cables and
collecting information of a possible foreign involvement.
The suggestion made here by Ms. Wilkinson that the CIA
does not investigate American citizens inside the United States
is, of course, correct; but that's not the issue. The issue is
what investigation did they make of foreign nationals abroad.
The combination of the FBI's own material witness
warrant, allegations of what witnesses claim, the description
of John Doe 2 and the number of people that claim to have seen
him, the grand jury's reference to others unknown, all suggest
additional individuals, even if we assume for purposes of
Ms. Wilkinson's argument that Mr. McVeigh and Mr. Nichols are
included in that; and information concerning those individuals
and who they might be is clearly relevant on the issue of
mitigation.
With respect to the general argument concerning Middle
East terrorism, there are again other indications.
The FBI indicated in its statement to the press that
eight groups claimed responsibility for the Murrah building,
seven of whom were foreign and six of those apparently were
Arabic or Muslim oriented.
There is a statement by the director of the ATF that
the Federal investigators were looking to the Middle East
first.
I've already mentioned the FBI affidavit concerning
the Arab gentlemen that were seen running from the scene.
There is also the statement shortly after the bombing by the
former chairman of the House Intelligence Committee, David
McCurdy, that there is, quote, very clear evidence, close
quote, pointing to a Middle East connection in the Oklahoma
City bombing.
There are, in addition to that, public statements made
and collected by the Foreign Broadcast Information Service
concerning certain broadcasts originating in the Middle East,
even in the unclassified ones, that strongly suggest a motive.
In addition to that, there is in the public record and
at the trial of Sheik Abdullah in New York City and at the
original World Trade Center bombing trial evidence that Iraq is
behind the conspiracy to blow up the Javitz Federal Building in
New York City, which is a building in New York City very
comparable to the Murrah building in Oklahoma City and that
Iraq played a role in the bombing of the World Trade Center
building.
And the World Trade Center building bombing is
particularly relevant to this case because the original spin,
if I can use that term, was that this was the act of four
misfits, the followers of some eccentric maverick sheik in
Egypt who got together and rented a Ryder truck and put
explosives in it and went down and tried to topple one of the
twin towers and then went back two or three days later and
attempted to collect the deposit on the truck.
Well, we now know that while those facts may be true
and the jury found them to be true that on the very evening of
the World Trade Center bombing, Ramses Joseph, believed to be
an Iranian intelligence agent and taken into custody after an
attempt in the Phillipines to blow up 11 American jumbojets on
the same day is now given the credit, if you can use that term,
for the plan to blow up the World Trade Center bombing. That
doesn't prove that he's involved in the Oklahoma City bombing.
What I'm simply suggesting to the Court that this litany that
these Army drifters or these misfits or these two masterminds
did this and did this alone is something that we have heard
before, which has been over taken by events.
The materials that we have submitted, your Honor, we
believe are sufficient to ask the Court to order the production
of them. But I have gone a step further, aside from the public
record; and I have a supplement this morning which I would seek
to introduce into the public record and if I may just -- I gave
a copy to the Government. It's defendant McVeigh's motion to
supplement motion for disclosure of discoverable and
exculpatory intelligence collected by the Central Intelligence
Agency, the National Security Agency, the Departments of
Justice and State, and any other intelligence gathering
agencies, Rule 16 material and brief in support, which I ask
leave to file in open court this morning. This is from the
public record.
MS. WILKINSON: Excuse me, your Honor. We might have
misplaced it, but I don't believe any of the Government
attorneys have a copy of the --
MR. JONES: Okay. Well, I'll give you another copy.
I thought it was in the brown material, but I'll get you
another. If I may just have one moment.
THE COURT: Yes. And this is an open motion?
MR. JONES: Yes. This is from material in the public
record.
The Chicago Tribune reported that the CIA spokesman
had acknowledged on the record that the agency is involved in
the search. There is a description that the car bombs that
were used at the Murrah building are favored by Islamic
fundamentalists. It discusses in Exhibit B that Oklahoma City
has an Islamic Center and the state is home to about 5,000
Muslims. It goes on to say that a television documentary
linked Oklahoma City to an Islamic fundamentalist network
operating out of New Jersey, Chicago and Texas. Mr. Steven
Emerson, a terrorism expert and executive producer of "Jihad in
America" said -- and I don't think there is any question
Mr. Emerson is an expert on terrorism -- that Oklahoma City has
been the venue for several Islamic conventions, including one
in 1992 where 6,000 people cheered calls for killing of Jews
and infidels. This meeting, incidentally, took place four
blocks from the Murrah building.
The Daily Telegraph, a London newspaper of record,
says the Federal Bureau of Investigation has called on the
Central Intelligence Agency to search its international sources
for possible leads among foreign terrorist groups. The
agencies' counter-terrorism center has issued a directive to
all CIA stations to help in this case.
Mr. Emerson, who has been investigating extremists
committed to Jihad, holy war, since the Trade Center bombing
says elaborate support and recruiting center networks have been
set up with branches in at least 38 states.
THE COURT: This is material attached to the motion?
MR. JONES: It is. I simply call it to the Court's
attention. I will file it and I will --
THE COURT: Well, file the motion.
MR. JONES: I will file it and not read it further.
THE COURT: Have you submitted the motion to the
courtroom deputy here?
MR. JONES: I have not.
I have it now. If I may do so, your Honor, with a
copy.
THE COURT: And if you have a copy -- all right. It's
filed.
MR. JONES: And I have underlined and marked the
relevant sections that I wish to call to the Court's attention.
Our motion, as I indicated to the Court, is predicated
upon Rule 16 and Brady. We believe that this classified
information is discoverable as it affects the manner and
disclosure of it, but doesn't affect the right for us to have
it.
In other words, CIPA doesn't affect our right to have
it. It merely affects the manner and means of the disclosure
to us.
We believe that this information is relevant to the
development of a possible defense and that we should have the
opportunity to inspect and review such material in possession
of the Government as it may aid in the presentation of our side
of the case. That language is from Judge Gesell's opinion in
Poindexter, when he ordered the release of National Security
information.
Now, if I understand correctly the Government's
position, aside from the repeated intonations that Mr. McVeigh
and Mr. Nichols are guilty, it simply boils down to this: Yes,
there was an investigation, yes, the CIA and the Department of
State and the National Security Agency did all of this, but it
doesn't help us in the investigation of our case because we
believe Mr. McVeigh and Mr. Nichols are guilty.
I'll concede that. That, I'm sure, is an honestly
held opinion.
But I'm a little leery about letting people who are so
convinced of Mr. McVeigh's guilt as they are be the ones to
determine whether we should get anything that undermines that
belief, because they have a self-interest in holding to their
belief, in protecting national security information and not
releasing it to us.
Now, clearly, although this may have occurred in what
has been called the largest small town in America, let's not
kid ourselves: The evidence is overwhelming that the United
States has very serious enemies who are embarked and have
embarked on murder, assassination and blowing up embassies,
federal buildings, naval yards, both inside this country and
outside this country.
And there is no reason why Oklahoma City is immune to
that.
In fact, the logic of it is that Oklahoma City or
Omaha or Kansas City would be a primary target because they are
unprotected, because they are soft, because they don't have the
Federal Protective Service and the elaborate camera and the
blocks in front of it to keep trucks from coming up to it.
So any foreign intelligence group or any foreign
terrorist group that has a desire to do the United States harm
is now going to avoid the two coasts and come to those areas of
the country that are soft.
If there is not anything in this material that would
help us, then fine. There should be no reason why it should
not be exposed to our experts, one of whom is a former senior
consultant to the Central Intelligence Agency and a consultant
to the President's Foreign Intelligence Advisory Board. And
one of the others has been under contract to the CIA, and a
third is one of the nation's leading experts on Iraq. Those
people understand the intelligence world and what must be
protected.
I don't propose to review that material myself or
Mr. Burr or Mr. Nigh. I propose to have it reviewed by experts
with perhaps either Mr. Wyatt or Mr. Hankins or both of them,
who are generally familiar with the defense hypothesis to
determine if the information is helpful.
But I don't think that we should go so far and say
that we're trying to uncover the family jewels here. Among the
specific things that we have asked for are documents that are
fairly easy to produce, such as passport and travel records.
And while those are generally protected for privacy interests,
I don't think that they impact upon the national security of
the United States and disclosure to us would be harmful to
those interests.
So in conclusion, I simply submit to the Court that
the public record that we have made shows an active
investigation, a reason that the FBI at least at one time
thought some of these people were involved; and clearly they
don't think they're involved now, or they would have charged
them.
But we think they are involved; and the information we
have, which we've submitted ex parte in camera, we believe
supports that, at least to the extent of forcing the Court --
forcing the Government to respond to a court order so that
those documents may then be discussed in a secret proceeding in
private and the claims of privilege and relevance weighed.
But I don't think that I'm called upon today to prove
relevance of something that I haven't seen. I'm only required
to show that there is a good faith basis for us to ask for it
and there is some reason to believe that they exist.
And I respectfully submit we have done that.
THE COURT: All right. Thank you.
Mr. Tigar, you filed a notice indicating joinder.
MR. TIGAR: Yes, your Honor. And I just -- I'd like
to address the Court very briefly.
The motion before you contains 32 numbered requests.
The Government's response is that it has sent letters to a
number of enumerated Federal agencies.
The most revealing statement made by Government
counsel this morning, if I noted it correctly, was that the
intelligence agencies did not provide reports to the
Government.
I had thought before this morning that the
intelligence agencies were a part of the Government. And I
think that that provides the key to what we would think that
it's appropriate for the Court to do.
Before there was a CIPA, there were a number of
decisions by the Supreme Court and the lower federal courts
about the Government's discovery obligation. For purposes of
Rule 16 and Brady, there is only one Government, it is our
position. That has been a matter of debate between us and our
adversaries since the very first meeting. But if there is only
one government, as there is only one party in a civil case --
I've had civil cases here with multinational corporations as my
client. I had to search everywhere.
If there is only one government, the CIA, DIA and so
on are all a part of it. And, therefore, the Court's discovery
orders, the discovery obligations of the Government, run
equally to all of those agencies. And I would suggest that
the -- at the very least, the Government give to the Court in
camera for its inspection the letters that it has sent to these
agencies to see whether the discovery requests that are made
comply with the Government's Brady obligation and Rule 16
obligation as this Court understand it.
With respect to the specifics of the requests that are
made here, we, too, have a number of concerns. The case
against Mr. Nichols is filled with contradictions. There are
witnesses who have placed a large number of people in uniforms
out at Geary State Fishing Lake, contrary to the Government's
allegations; there are reports of bombings in the desert.
There is the conflicting testimony of Mr. Fortier on these
matters with respect to Mr. Moore. There is the detention of
Mrs. Nichols and her eventually leaving for the Phillipines,
where she continues to be subject to questioning and harassment
not only by agents of the United States Government but of
foreign governments.
All of these issues point to the fact that there is
going to be evidence that is in the hands of agencies that
Government counsel this morning said are not part of the
Government but really are, these intelligence agencies. There
has got to be a search of that. And it isn't just CIPA, your
Honor. I've been in cases in which I represented a former
Secretary of the Treasury. It wasn't at all surprising that
there was secret information somehow or his voice had been
picked up. That was relevant and we had to deal with it. I
represented a former Secretary of the Senate Majority. It
isn't surprising that a search had to be made. That's what
we're asking be done; that the discovery obligations be
regarded as belonging to the entire government, including those
portions of it that are engaged in foreign intelligence
activities. And that's simply because those agencies
themselves took credit for an early and extensive involvement.
And so I join with Mr. Jones. You can pick at, as the
Government has done, request No. 20 as being a little bit
overbroad, request No. 21 as being ill-phrased; but those first
requests that ask for specifics about particular individuals
and particular events -- your Honor, that lies at the heart of
what we'd be entitled to under Rule 16 and Brady, and we're
asking the Court to get in here and supervise the way that
these Government lawyers deal with these agencies in trying to
get this information to which we're entitled.
We would wait until M