## Facts

- Syed Fahad Hashmi, a U.S. citizen, was indicted in 2006 for providing or conspiring to provide material support to al Qaeda.
- The charges included allegations that Hashmi allowed a co-conspirator to use his apartment and cellphone and helped store or transport items allegedly intended for al Qaeda.
- In discovery, the government produced unclassified materials and anticipated producing classified information governed by the Classified Information Procedures Act (CIPA).
- The government sought a CIPA protective order and required defense counsel to obtain security clearances before accessing classified materials.
- While detained pretrial, Hashmi was subjected to Special Administrative Measures (SAMs) restricting communications, including limits affecting contact with non-attorneys and conditions placed on communications involving counsel and defense team members.
- Hashmi moved to (1) invalidate CIPA’s notice and hearing provisions as unconstitutional, (2) bar the security-clearance condition for defense counsel, and (3) invalidate the SAMs under the First, Fifth, and Sixth Amendments.

## Issues

1. Whether CIPA’s pretrial notice and in camera hearing procedures for classified information unconstitutionally burden the privilege against self-incrimination or the right to present a defense.
2. Whether conditioning defense counsel’s access to classified discovery on obtaining a security clearance and complying with a protective order violates the Sixth Amendment right to counsel of choice or other constitutional rights.
3. Whether SAMs restricting a pretrial detainee’s communications, including constraints affecting attorney-client communications and defense preparation, violate the First, Fifth, or Sixth Amendments.

## Decision

- The court denied all of Hashmi’s motions.
- CIPA’s notice and pretrial hearing provisions were held constitutional as procedural mechanisms for litigating admissibility and protecting classified information.
- The court held that the government may condition defense access to classified discovery on counsel obtaining a security clearance and complying with a protective order, without violating counsel-of-choice rights.
- The SAMs were upheld as reasonably related to legitimate and compelling security interests and not shown to prevent meaningful attorney-client communication or defense preparation.

## Legal Principles

- CIPA provides procedural rules for handling classified information in criminal cases and does not expand or restrict substantive evidentiary standards.
- Requiring a defendant to provide pretrial notice of intended disclosure of classified information, followed by in camera admissibility hearings, is a permissible method to protect national security and manage trial evidence.
- A defendant’s Sixth Amendment right to counsel of choice does not include a right for chosen counsel to access classified information absent required security clearance and compliance with protective orders.
- Courts generally defer to executive branch determinations concerning risks of disclosure of classified information and the administration of security clearances.
- Communication restrictions on detainees are evaluated under the standard asking whether the measures are reasonably related to legitimate penological and security interests; burdens on defense communications are permitted absent a showing that counsel access or defense preparation is effectively denied.

## Conclusion

The court upheld terrorism-case management measures that protect classified information and institutional security, concluding that CIPA procedures, security-clearance conditions for classified discovery, and SAMs did not violate Hashmi’s constitutional rights where they remained procedural, security-justified, and did not foreclose meaningful access to counsel or the ability to prepare a defense.


United States v. Hashmi, 621 F. Supp. 2d 76 (S.D.N.Y. 2008)