United States v. Khatallah
Criminal No. 2014-0141
D.D.C.Nov 9, 2017Background
- Defendant Ahmed Abu Khatallah moved to compel disclosure of the identity of the original source of Libyana telephone records admitted as Government Exhibit 1100(A); the source’s identity remains classified.
- The court previously admitted the Libyana records as business records under Fed. R. Evid. 803(6) after a daylong evidentiary hearing and a Libyana CEO certification.
- The Government opposed disclosure and sought a CIPA protective order invoking the informant’s privilege; it submitted an ex parte declaration describing national-security risks from disclosure.
- The central factual question is whether the source’s identity is relevant and necessary to Abu Khatallah’s defense such that the informant’s privilege must yield under Roviaro balancing.
- The court found Abu Khatallah offered only speculative bases (interviewing or calling the source to attack record reliability) and no concrete indication the source was a participant, eyewitness, or otherwise necessary to his defense.
- The court concluded disclosure would pose grave national-security and safety risks (to the source and intelligence channels) and denied the motion, ordering nondisclosure under CIPA § 3.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the government must disclose the identity of the source of Libyana phone records under the informant’s privilege/CIPA | Gov.: Protect source identity under informant’s privilege; disclosure risks national security | Abu Khatallah: Source identity is necessary to interview/call as witness to challenge records’ reliability | Disclosure denied; identity protected under CIPA § 3 |
| Whether Roviaro requires disclosure because the informant’s testimony is relevant or essential | Gov.: Roviaro balancing favors nondisclosure absent showing source was participant/witness | Abu Khatallah: Identity could produce testimony undermining records; thus relevant | Court: Defendant failed heavy burden; proffer speculative, not necessary; privilege stands |
| Whether prior judicial finding of records’ reliability affects need for disclosure | Gov.: Court already found records admissible and reliable; reduces need for source identity | Abu Khatallah: Even so, source could provide exculpatory evidence if disclosed | Court: Prior finding plus speculative defense use weigh against disclosure |
| Whether disclosure risk to source and intelligence channels outweighs defense need | Gov.: Ex parte declaration shows grave safety and intelligence harms | Abu Khatallah: Defense interest in source identity outweighs unspecified risks | Court: National-security/safety risks significant; tip balance against disclosure |
Key Cases Cited
- Roviaro v. United States, 353 U.S. 53 (1957) (establishes informant’s privilege and balancing test for disclosure)
- United States v. Skeens, 449 F.2d 1066 (D.C. Cir. 1971) (refuses disclosure where informant was not participant or eyewitness)
- United States v. Mangum, 100 F.3d 164 (D.C. Cir. 1996) (defendant bears heavy burden to show informant’s identity necessary to defense)
- United States v. Yunis, 867 F.2d 617 (D.C. Cir. 1989) (discusses classified-information privilege and Roviaro balancing)
- United States v. Bigesby, 685 F.3d 1060 (D.C. Cir. 2012) (upholds nondisclosure where defendant’s need was speculative)
- United States v. Gaston, 357 F.3d 77 (D.C. Cir. 2004) (requires direct connection to charged crime for disclosure)