APPENDIX
THE JOINT INQUIRY IN COURT
THE JOINT INQUIRY IN COURT
On August 20, 2002, the Department of Justice (DOJ) filed a motion in United States v, Moussaoui, Crim. No. 01-455-A, in the Eastern District of Virginia, concerning potential disclosure in the Joint Inquiry's public hearings and reports of information provided by the Federal Bureau of Investigation (FBI) and other Executive Branch agencies about the Government's investigation of Zacarias Moussaoui. The relief sought by DOJ would have imposed significant limitations on the Joint Inquiry's ability to inform the public about the FBI's conduct of its Moussaoui investigation in the weeks leading up to September 11, 2001. For that reason, the Joint Inquiry appeared before Judge Leonie Brinkema, the presiding judge in the Moussaoui prosecution, to oppose DOJ's motion. The issue was finally resolved favorably for the Joint Inquiry in a court order on September 23, 2002 that effectively cleared the way for FBI testimony at the Joint Inquiry's public hearing the next day on the FBI's conduct of the Moussaoui investigation.
This portion of the Appendix briefly describes the issues that were presented and the orders that were issued in conjunction with the Moussaoui litigation. Although begun as a nonpublic, or "sealed" proceeding, the pleadings in the case were unsealed by the court and the orders were also filed on the public record.
At the outset of the Joint Inquiry, representatives of the Joint Inquiry and DOJ discussed procedures for access to FBI and DOJ information that would recognize the need for a thorough Congressional inquiry and yet avoid interfering with the Moussaoui case and other pending criminal prosecutions and investigations. On April 19, 2002, the Joint Inquiry Staff Director wrote to the Director of Central Intelligence -- with copies to the FBI and other Intelligence Community agencies -- to describe procedures for meeting this goal that were being adopted by the Joint Inquiry. These procedures included a commitment by the Joint Inquiry to consult with the Justice Department "before any information that is obtained from Intelligence Community records and that may constitute evidence in a criminal proceeding is made public."
Over the following weeks, it became clear that DOJ believed there were legal bars to the Joint Inquiry's public disclosure of materials about the FBI's Moussaoui investigation. As a result of these concerns, DOJ advised the Joint Inquiry in a May 31, 2002 letter that "the Department may have to oppose efforts to release publicly certain protected information prior to the trial, to the extent that it would impair the government's ability to present its case, infringe upon the defendant's right to a fair trial, or compromise the integrity of other investigations." One bar, in DOJ's view, was a Protective Order in the Moussaoui case that had been prepared by DOJ and entered by the District Court on February 5, 2002. That Order provided, among other things, "that none of the discovery materials produced by the government to the defense shall be disseminated to the media by the government."
The other bar, in DOJ's view, was Eastern District of Virginia Local Criminal Rule 57. That Rule bars several categories of out-of-court statements by the prosecution or defense "which a reasonable person would expect to be further disseminated by any means of public communication," but also contains a specific proviso that nothing in it is intended to preclude "hearings or the lawful issuance of reports by legislative, administrative, or investigative bodies."
In the next several months, as the date for the first public hearings approached, the Joint Inquiry sought to assure DOJ that its concerns could be accommodated by the Inquiry. A June 27, 2002 letter to the Attorney General from the leaders of the Joint Inquiry stated that the objective of the Inquiry's planned public hearing on the Moussaoui matter was "not to consider the guilt or innocence of Mr. Moussaoui, which is a matter for the Judicial Branch, but to examine the counterterrorist efforts of U.S. Government personnel and the organizations and authorities under which they operate." The letter also informed the Attorney General that the Offices of Senate Legal Counsel and House General Counsel had advised the Joint Inquiry that neither the Protective Order nor the Local Rule governed the public proceedings of Congress.
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In July 2002, DOJ's Criminal Division asked for a further description of the subjects that would be addressed in the Joint Inquiry's public hearings, which were scheduled to begin in September. On August 5, 2002, the Joint Inquiry Staff Director wrote to the Assistant Attorney General for the Criminal Division and explained that the scope of the Inquiry's planned public examination of the Moussaoui matter would include "FBI activity concerning Zacarias Moussaoui from August 15, 2001, when an intelligence investigation was opened, through September 11, 2001."
On August 20, 2002, DOJ filed an "Expedited Motion of the United States for Clarification Regarding the Applicability of the Protective Order for Unclassified but Sensitive Material and Local Criminal Rule 57 to Information that May be Made Public in Congressional Proceedings." DOJ asked the District Court to order that "[t]he Protective Order and Local Rule would preclude the provision of information regarding 'The Moussaoui Investigation,' as described [in the Joint Inquiry letter of August 5], for public use. ..."' The Department also submitted an order, which the District Court granted, "to authorize the service of its Expedited Motion with its attachments on the representatives of the House and Senate Intelligence Committees who are involved in the Joint 9/11 Inquiry, and to enable these committees to reply to the motion and attend any scheduled hearing."
With the assistance of the Offices of Senate Legal Counsel and House General Counsel, the General Counsel of the Joint Inquiry filed a reply on behalf of the Joint Inquiry on August 26 and participated in the argument on August 29, 2002. The reply asked that the District Court deny DOJ's requested relief for three main reasons: "(1) the protective order does not govern testimony before Congress, nor does it govern the production of documents to Congress, the use of documents by it, or the issuance of its reports; (2) Local Criminal Rule 57 specifically does not preclude the holding of legislative hearings or the issuance of legislative reports, and (3) the proposed expansion of the order by the Department of Justice runs afoul of the separation of powers,"
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On August 29, the District Court entered an order that denied DOJ's motion. Stating that the Protective Order "is too complicated in its present form," the order directed the submission of a new Protective Order. The August 29 order also stated "that nothing in this Order is intended to affect the applicability of Local Rule 57 to the participants in this case."
The transcript of the August 29 hearing was released publicly on August 30. Representatives of DOJ and the Joint Inquiry discussed, but could not agree on, the import of the Court's ruling, particularly regarding the applicability of the Local Rule to the testimony of FBI witnesses at the public hearing. During the first week of September 2002, DOJ asked the Joint Inquiry to advise it regarding which of the documents that had been provided to the Joint Inquiry by the FBI were believed to be relevant to a public hearing concerning the Moussaoui investigation. On September 11, 2002, the Joint Inquiry's General Counsel provided DOJ with a list of documents that were substantially likely to be included in public questioning of FBI witnesses at public hearings.
On September 20, DOJ filed a "Renewed Expedited Motion of the United States for Clarification Regarding the Applicability of Local Criminal Rule 57 to Information to be Made Public in Congressional Proceedings." Focusing only on the Local Rule, the Department did not renew its earlier arguments about the applicability of the Protective Order to Congressional proceedings. The Department asked the District Court to enter an order that "Local Criminal Rule 57 applies to Department of Justice personnel who are testifying at public Congressional hearings, including but not limited to, all statements such personnel make in response to questions asked by Members and staff at such hearings."
Again assisted by the Offices of Senate Legal Counsel and House General Counsel, the Joint Inquiry General Counsel replied in writing that:
...the order sought by the United States would substantially shut down the opportunity of the full Congress and the public to understand the important issues involved in the FBI's handling of the Moussaoui investigation prior to September 11. The relief sought by the United States would, in effect, amount to an injunction blocking a proceeding of the Congress that no Court has ever issued.
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On September 23, 2002, the District Court denied the DOJ motion, as follows:
The Joint Inquiry made clear in its August 5, 2002 letter to the Assistant Attorney General for the Criminal Division the limited parameters of the inquiry and has reiterated in its Reply that the Committees will not ask witnesses to comment about the merits of this case, Indeed, the questions are expected to focus on "what government officials heard, observed, reasoned, recommended, and acted on (or did not act on) prior to September 11." [Quoting Joint Inquiry Reply.] The Committees are not interested in "expressions of current judgment from government witnesses about the defendant's guilt or innocence or the government's plans for presenting its case." [Quoting Joint Inquiry Reply.] Given the ground rules articulated by the Joint Inquiry, FBI personnel should have no difficulty responding to Congress' questions without violating Local Rule 57 or any other order of this Court. Accordingly, the Renewed Expedited Motion for Clarification is DENIED.
In accordance with its commitment to consult with the Department of Justice, the Joint Inquiry continued to allow DOJ to review and comment regarding the contents of staff statements related to the Moussaoui case and other matters. At the Joint Inquiry's September 24 public hearing and the closed hearing that followed concerning the Moussaoui matter, the Joint Inquiry permitted a DOJ representative to attend with FBI witnesses for the purpose of advising whether any question called for an answer that might impair the Moussaoui prosecution. Thus, the Inquiry was able to proceed with a full public exposition of the issues raised in the Moussaoui investigation without impeding the due process and fair trial interests of Moussaoui and DOJ.
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