## Facts

- A second superseding indictment charged Mousa Mohammed Abu Marzook, Muhammad Hamid Khalil Salah, and Abdelhaleem Hasan Abdelraziq Ashqar with offenses arising from alleged support for Hamas, including RICO conspiracy, material support to a foreign terrorist organization, and obstruction.
- The opinion addressed pretrial procedure focused on Salah’s motion to suppress statements he allegedly made to Israeli authorities in 1993 while in custody.
- Salah submitted a sworn affidavit asserting his statements were involuntary because they were obtained through coercion and torture during Israeli detention.
- The United States sought to oppose suppression by calling witnesses, including Israel Security Agency (ISA) agents, to testify about interrogation practices and detention conditions.
- The government moved under the Classified Information Procedures Act (CIPA) to close limited portions of the suppression hearing involving classified information and to employ security measures to protect certain witnesses’ identities (including non-public entrances and “light disguise”).
- Defendants and media organizations objected, citing First Amendment and common-law rights of public access to criminal proceedings.
- The court scheduled the suppression hearing to begin in early March 2006; the merits of voluntariness and admissibility of the statements were reserved for that hearing.

## Issues

1. Whether the court could, consistent with CIPA and the First Amendment/common-law access rights, partially close portions of a suppression hearing to prevent disclosure of classified information involving foreign intelligence agents.
2. Whether the court could authorize protective witness measures (including light disguise and non-public courthouse access) without violating defendants’ fair-trial and confrontation rights.

## Decision

- The court granted the government’s motion in part.
- The court authorized partial closure only for discrete portions of the suppression hearing where testimony or argument would reveal classified information, including ISA agent identities and sensitive operational details.
- The court approved protective measures for certain witnesses, including use of non-public entrances and testimony in light disguise.
- The court declined broader closure and required that non-classified portions of the hearing remain open.
- The court did not decide the suppression motion’s merits; it limited its ruling to procedures for handling classified information and witness security at the hearing.

## Legal Principles

- Criminal proceedings are presumptively open under the First Amendment and common law; closure requires a compelling interest, a substantial probability of harm absent closure, and narrow tailoring with no reasonable alternatives.
- Protection of classified national-security information, including foreign intelligence information provided in confidence, can constitute a compelling interest supporting limited closure.
- CIPA permits courts to use procedures (including in camera, ex parte review and tailored restrictions) to prevent unnecessary disclosure of classified information during pretrial proceedings.
- Closure must be limited to the minimum necessary; courts should consider alternatives such as redactions, pseudonyms, and in-court protective measures.
- Protective measures for sensitive witnesses may be permitted when justified by specific security risks, so long as defendants retain meaningful confrontation rights, including full cross-examination and the ability for the court and parties to observe witness demeanor.

## Conclusion

The court permitted narrowly tailored partial closure and limited witness-protection measures during a suppression hearing to prevent disclosure of classified foreign intelligence information, while keeping non-classified portions open and preserving defendants’ ability to confront and cross-examine the witnesses.


United States v. Abu Marzook, 412 F. Supp. 2d 913 (N.D. Ill. 2006)