## Facts

- The United States charged 15 defendants, including Mohamed Sadeek Odeh, with offenses arising from the August 1998 bombings of four U.S. embassies in Africa and related efforts to obstruct the investigation.
- Early in the case, the government told defense counsel that litigation and trial would likely involve classified information.
- Because security-clearance investigations can take time, the government urged defense counsel to begin the clearance process promptly.
- The government moved for a protective order governing how discovery would be handled, including classified materials.
- The proposed order barred defendants and counsel from accessing classified information unless counsel obtained security clearance.
- The order also required defense counsel and certain court personnel to obtain clearance through the Department of Justice process, which considered factors such as U.S. citizenship, loyalty, and trustworthiness.
- To address fairness concerns, the security-clearance process would be supervised by a court security officer rather than members of the prosecution team.
- Odeh and other defendants objected to the protective order to the extent it required defense counsel to obtain security clearance.
- Odeh’s counsel separately sought to intervene for the limited purpose of asserting a personal objection, claiming the clearance process implicated his constitutional right to privacy.

## Issues

1. May the court, under the Classified Information Procedures Act (CIPA) and its supervisory authority, enter a protective order that conditions defense counsel’s access to classified information on obtaining DOJ security clearance?
2. Does requiring defense counsel to seek and obtain security clearance as a condition of access to classified materials violate defendants’ constitutional rights (including the right to counsel and due process)?
3. May defense counsel intervene to raise a personal constitutional privacy objection to the security-clearance requirement?

## Decision

- The court entered a protective order under CIPA to control the handling and disclosure of classified information in the prosecution.
- The court permitted the order to require that defense counsel obtain security clearance before receiving access to classified information.
- The court rejected the claim that the clearance requirement, as structured (including oversight by a court security officer), unlawfully interfered with defendants’ constitutional rights.
- The court denied defense counsel’s attempt to intervene solely to litigate a personal privacy objection to the clearance requirement.

## Legal Principles

- CIPA authorizes district courts to issue protective orders to prevent unauthorized disclosure of classified information and to structure how such information is handled in criminal cases.
- A defendant’s right to counsel does not include an unconditional right for any chosen attorney to receive classified information; access may be conditioned on reasonable security measures when national-security information is involved.
- A protective order may require security clearances for counsel and may use court-supervised procedures to reduce the risk that the prosecution controls or influences defense access to classified materials.
- Courts balance trial fairness with the government’s legitimate interest in safeguarding classified information, using restrictions on access and disclosure as needed to protect national security while permitting the case to proceed.
- Motions to intervene in a criminal case are disfavored; an attorney’s personal objections to a clearance process generally do not provide a basis to intervene when the issue is already before the court through the parties’ dispute over the protective order.

## Conclusion

In this embassy-bombing prosecution, the district court used CIPA to enter a protective order controlling classified discovery and held that conditioning defense counsel’s access to classified information on obtaining DOJ security clearance was a permissible security measure that did not violate defendants’ constitutional rights; the court also refused to allow defense counsel to intervene to litigate a personal privacy-based objection to the clearance process.


United States v. Bin Laden, 58 F. Supp. 2d 113 (1999)