9.Foreign Witness Disclosure, Protection, and Immigration Assistance
9 linesTHE COURT: Okay. I'll reserve it.
Then there's the motion to delay the identification of -- or the disclosure of foreign witnesses.
MR. FICK: Yes. And the original relief sought there was to delay to either seven days before the beginning of the mitigation case -- or before the guilt phase or until such time as the witnesses are on an airplane headed to the United States, and we maintain that request at this time. Or alternatively, I think this is also sought in the motion, a protective order that would bar the government from making efforts through a foreign government to interview the witness overseas given the intimidating circumstances in which that can sometimes happen.
I think that the potential for witnesses to be -- who were reluctant to come in the first place is beyond question, and, you know, for the same types of reasons that this kind of relief was allowed in the Rwanda case, I think it should be permitted here as well.
And then a separate piece of the motion, quite apart from the question of when a disclosure or foreign witness identity is made to the government, separately there was a request that a firewall, essentially an Immigration and Customs agent, be designated to work with the defense. I need witnesses who may need to be paroled into the country as opposed to simply receiving ordinary U.S. visitor visas. And for similar reasons, simply so the government -- the prosecution team is not sort of neck deep in the defense's business, they assume the requirement that they designate an agent in this case would also be appropriate.
MR. CHAKRAVARTY: Your Honor, the reason the Court set a disclosure deadline for witnesses is so the parties wouldn't be surprised. We're on the eve of trial. The time has come when we need to know who the witnesses are and what the theory of the case is against which we are going to be presenting evidence. We need to know what questions to ask the witnesses when they're on the stand, we need to know both for the liability phase as well as the penalty phase.
The sole justification for the defense's extraordinary request is that they -- the witnesses that they propose are likely to be intimidated. And while intimidation could happen in a variety of circumstances, there's absolutely zero evidence, at least that the government is aware of, I don't know what may have been filed with the Court, to suggest that that kind of intimidation that they're envisioning, number one, has or will happen; but number two, that it will happen because of disclosure to the government. And what I mean by that is that the foreign government from whence these witnesses are coming are likely to know, regardless of any U.S. government involvement, of the purpose and the nature of why these people are coming to the United States, especially if some kind of extraordinary permissions are granted for purposes of coming to the United States.
The example that they use and is the sole precedential -- I guess it's not even precedential, but the sole example of such extraordinary steps having been taken were in the Rwanda cases. The Rwanda cases -- the case in New Hampshire as well as in Massachusetts -- involved witnesses for both the sides coming over from Rwanda, from a small village in this sub-Saharan country which is considerably different demographically in terms of sophistication from Russia or the Caucasus, Kyrgyzstan and these other places -- and it was a shared witness pool. And the concern the defense had at that point, given a regime that they believed would intimidate their witnesses and in support of that belief they advanced as the primary theory of their defense that the Rwandan government was going to be manipulating these witnesses.
And there was a particular narrative that they wanted to further, and they presented expert testimony in that regard, when it was a core -- at the core of their defense the simple solution that the judge saw in New Hampshire in this case was to say, Well, why do you have to designate? Why don't you just give a list of witnesses to get their travel documents in order and then wall off the prosecutors from knowing who those witnesses are until they hit American soil?
That procedure failed miserably. The witnesses were able to come without a problem but many of them didn't testify at all -- I'm speaking of defense witnesses -- and those that did perjured themselves. And the whole point of knowing who the witnesses are is so that we can learn more about them and we can learn -- we can prepare for them on cross-examination.
The Rwandan cases involved illiterate farmers. We have no idea who is coming over from -- in this case, we have no idea for the purposes for which they're coming over, and we're at a considerable disadvantage from not knowing even that. It's one thing to know who a witness is, it's another thing to go out and to try to interview a witness. And it's a third thing to realize the harm which they are considering, which is to contact a foreign government, tell them the nature of the witness, and ask them -- or give them certain facts that would then enable them -- or incentivize them to actually intimidate the witness to come here. And I could tell you right now the government has no intention to do that.
And so it's that worst-case scenario for which the defense has proposed this most restrictive means. And while two months ago that may have been appropriate before we were able -- before we were right engaged in the case and, frankly, we would not have done very much in the last two months, we would have asked the FBI to look into that more, but that's a different question from now when we actually have to present the case and don't know who these witnesses are. The -- another point about the -- how this procedure would not only prejudice the government but would encourage bad evidence coming in, in the Rwanda cases, the witnesses all testified about a very narrow piece of history in a small village for which the government had thoroughly investigated, and so we had some context as to in what circumstances their testimony might be false and what circumstances we might be able to present contradictory evidence.
In this case we don't have that. In this case we have somebody who can come up and say anything they want about the defendant or his family's history, presumably, without the government having any basis to be able to even conduct an investigation to be able to cross-examine. And if they -- to do it -- if they testify themselves, then at least we get a right to cross-examination. But if they just come here to speak with the defense mitigation experts, and then through hearsay the mitigation experts present that testimony, we are at an even further disadvantage.
At the very least, your Honor, we need to know who these people are so we can prepare for their case -- the testimony that's going to arise from them in the case both in the liability phase so that we can anticipate it as well -- and we don't overreach and argue something that we know that they're going to have witnesses on who are going to be eyewitnesses to some event that we're aware of, as well as, most importantly, in the mitigation phase. And given the fact that we're all going to be fully engaged in trial, we ask for that to be done now.
MR. FICK: Very briefly. I think there's a difference between -- what we were doing is we're calling the mitigation witnesses to talk about family history. It's very different from talking about contentious historical facts about the Rwandan genocide. That aside, the risk and the potential of witnesses being afraid and sort of not wanting to come is very real and is palpable.
At the beginning of this case, shortly after the marathon bombings, the FBI went over to Russia, and with the help of a Federal Security Service in Russia -- this is the successor agency to the KGB -- people were summoned to essentially meet at the FSS -- or KGB -- headquarters to do an interview. Over the course of the last 18 months we have made trip after trip, spent hours and hours with these people helping to put them at ease, trying to convince them that it's safe for them to come to the United States, they're unlikely to be harassed further. And to suggest that it would not be intimidating for these same people to get summoned by the Federal Security Service again just before they're about to come here to testify, it's fundamentally unhistorical and preposterous.
So at a minimum, again, I think even if the defense has to give over the names at some point sooner than -- shortly before the beginning of the penalty phase, there ought to be a protective order to prevent the government from communicating the information about their identity or seeking to do anything with regard to interviews abroad.
It's not my purpose here to sort of impugn the government or legal system of Russia, but, you know, these are sensitive matters, and for that reason we filed these motions under seal and we would request that they stay under seal because I suspect I, and certainly other members of the defense team are going to continue to have to travel to these places during the course of the trial, and certainly all this discussion being public would not be helpful in that regard.
THE COURT: But isn't it the case that some authorities in Russia are necessarily aware of the witnesses because of visa applications and other exit visas and so on?
MR. FICK: There's no requirement for an exit visa from Russia anymore for the last couple of decades. People apply for a foreign travel passport, which is a standard thing, through a local administrative office. And then the travel documents that are necessary are travel documents -- are U.S. travel documents, either a visa from the United States Embassy or a parole letter from Immigration and Customs Enforcement.
You know, while this case has certain political sensitivity in Russia, particularly when attention is drawn to it either by the presence of law enforcement or the defense in various places -- on the other hand, simply the travel of people in and out of the country is not something that's necessarily going to attract that level of attention. There's no reason to think that a request by the FBI to interview somebody is going to be treated the same as someone who is simply getting a passport or getting a travel document to come to the United States. There may be an inference about why the person is coming or something, but the sort of pointed request of U.S. law enforcement to go talk to those people, there's no reason to think that something like that should happen and they would be intimidated. It's really a very different kind of thing.
MR. CHAKRAVARTY: Your Honor, there's one point I didn't raise -- well, I didn't respond to, which is the issue of the parole. The government's, obviously, argument was about the fact we need to know the witnesses, but we also lay out in our opposition that some of these witnesses may need government permission to come in outside of the, you know, green card, citizenship or visa process. Those processes are incumbent upon themselves -- on the witnesses, or with the assistance of the defense team to go through the regular procedures in order to obtain those. But some of these witnesses may not be eligible, and we explained, as occurred in the Rwanda cases, and the Defender's office knows, that the process to apply for administrative parole is a very different process and requires a lot more lead time. And there is -- because administrative parole is permission for a very limited, narrow purpose in order to come to the United States, there are often -- or there is a security plan that has to be proposed in place at the time that one of these people comes in.
In some cases that security plan could mean incarceration, as occurred in some of the -- in the instance of some of the Rwandans, in some cases that could mean an electronic bracelet, and others it could mean there has to be 24-hour surveillance or some other kind of a very resource-intensive security procedures which the investigative agency responsible for the case has to do.
In this case the FBI is that investigative agency. So procedurally, and I don't know how many, if any, of the witnesses -- proposed witnesses would have to go through that procedure, but their names, some information about their background, both for vetting for security clearance purposes but more importantly for -- to ensure that there is an adequate security plan. I mean, if these are known terrorists from Russia -- I'm not proposing that they are, but if they were -- the security plan would be a much different one, much more restrictive, than there would be if they were permitted to come at all, it would be very different if it's a family member who doesn't pose that kind of a physical risk.
But in addition to the physical risk assessment and requirements, then there are also waivers and other procedures that have to be in place so that these people won't come to the United States and claim asylum or some other relief from persecution, for example, or other events.
All of that takes a lot of time and requires more than just the investigative agency, the FBI. They, once they have an adequate security plan, then have to petition to the Department of Homeland Security, which hopefully on Friday will still be operating, so then Homeland Security has to both approve that plan and then issue the appropriate paperwork. That paperwork then goes over. And that's notwithstanding whether there's any watch list or anything else that might be preventing them from travel. So that's an elaborate process.
I explain that all for your Honor's benefit but also to make the record that the government has made known to the defense that they need to provide that information to the FBI -- and we gave them the names and numbers of the FBI personnel who happened to be the supervisors of the case -- and we haven't received any information. And the inability for those people to travel is not the responsibility of the government if the defense has, in the interest of protecting the secrecy of their witnesses, has chosen strategically not to provide that information. If they plan to do it now, then they have to recognize that the FBI will do what they can to try to process that paperwork, and we will as well. And we'll crack the whip as much as we can. But given the passage of time, and I don't know when these witnesses would be expected to testify, but it could very well be that they may not be here on time. And that burden cannot fall on the government when we've made it clear to the defense as to what the process is and they just simply haven't availed it. I just finally conclude just as a caveat that I don't know how many, if any, of the proposed witnesses will fall into this category, but to the extent that any do, those are the witnesses who both have to file -- they have to provide information for -- to the government, and those are the witnesses who, in the New Hampshire case, were walled off from a so-called taint ICE agent. That could not be the process here because there are two different investigative agencies involved, and each of them would have to have their own filter procedures. But for the reasons I said earlier, at this point there's no more need for that wall. We need to know who they are.
MR. FICK: Very quickly, I think Mr. Chakravarty conflated a couple of different issues here. Bottom line: Immigration and Customs Enforcement controls the border. Any issues that Mr. Chakravarty has talked about are precisely the kind of thing that a fire-walled ICE agent could handle in the first instance, and then bring to the attention of the investigative agency or the Court if necessary.
While there certainly is the possibility that the FBI could be the requesting party to immigration, to bring somebody into the country, that is certainly not the exclusive mechanism. As Ms. Conrad utilized in the Almohandis Saudi firecracker case, for lack of a better description, the Court also has the ability to request public interest parole to immigration directly. The bottom line is whatever issues may arise to be vetted by a fire-walled agent in the first instance will protect all parties' rights and make the process more efficient.
THE COURT: I'll reserve it.
I think that's my list. Anybody else have anything?