Closed Hearing—Syed Haris Ahmed and Ehsanul Islam Sadequee

A few months ago, we discussed Syed Haris Ahmed and Ehsanul Islam Sadequee, who are both accused of various terrorism-related offenses. If you recall, at the time, we mentioned that Mr. Ahmed, a former Georgia Tech student, was being held at an undisclosed location.

Today, there is news that US Magistrate Judge Gerrilyn Brill has ordered a “closed-door hearing in which prosecutors and defense lawyers may discuss the disclosure of classified information.”^[1] A lawyer for several media organizations, Tom Clyde, “said he is considering filing a motion objecting to the Sept. 14 hearing.”^[2] His basis for wanting to do so is that “the hearing should be open if the discussion involves how to disclose classified information and does not entail revealing that information during the hearing.”^[3]

A detention hearing for Mr. Sadequee will be held on September 22, and at that hearing, “his lawyers are expected to challenge the government’s effort to continue holding him”; similar plans may be in place for Mr. Ahmed.^[4]

Mr. Clyde’s proposed intervention into the case is a very interesting step. Joinders and interpleaders are fairly common practices in civil litigation,^[5] but are fare less common in criminal prosecutions. A joinder is the process by which a party asserting claim to relief may join, either as independent or as alternate claims, as many claims as the party has against an opposing party.^[6] An interpleader is the process by which a person having claims against the plaintiff may be joined as defendants and are required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability.^[7]

Unlike civil cases, which may have a whole web of plaintiffs and defendants, with their various claims and cross-claims, criminal cases typically have the United States on one side, and the defendant(s) on the other side; other interested parties are generally excluded.

However, where access to the courts are concerned, intervention is rather common. Typically, the media will file a Motion to Intervene for the limited purpose of being heard by the court regarding access to the court.^[8] The general rule regarding media access to criminal trial proceedings is that “[t]he press and public enjoy a qualified First Amendment right of access to criminal trial proceedings. … Open criminal proceedings have been an ‘indispensable attribute of an Anglo-American trial’ for centuries.”^[9] It is not, however, absolute; the right of access “must yield to the supervisory power of the court to control its own records when ‘the public’s right of access is outweighed by competing interests.”^[10] National security is one of those competing interests.

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[1] US Judge Schedules Closed Hearing to Discuss Classified Information in Terrorism Case, AP (via International Herald Tribune), Sept. 1, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] See Fed. Rules Civil Proc. 20, 22.
[6] Id. Rule 20(a).
[7] Id. Rule 22(1).
[8] See, e.g., Reporters Committed for Freedom of the Press, Movants-Intervenors’ Motion To Intervene For The Limited Purpose Of Being Heard In Connection With Access To Certain Portions Of The Record And Memorandum In Support, April 3003, filed in United States v. Moussaoui, No. 01-455-A, (E.D. Va. 2003).
[9] United States v. Ochoa-Vasquez, 428 F.3d 1015, 1028-29 (11th Cir. 2006).
[10] United States v. Moussaoui, No. 03-4162, (4th Cir. 2003).