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The need for secrecy and safety are trumping the presumption in favor of an open courtroom in the trial of four men accused of being part of an international terrorist conspiracy. The decision Friday by U.S. District Judge Leonard Sand of the Southern District of New York to close Tuesday’s suppression hearing requested by defendant Mohamed Rashed Daoud al-’Owhali was just the latest example of how the public and the media’s right to observe both the trial and pretrial proceedings have given way to overriding concerns about national security and the safety of witnesses. The judge said he is worried that sensitive information not intended to be part of the public record could be revealed to the press. He said transcripts of the suppression hearing, with the appropriate redactions, would be made available to the press on Wednesday morning. “It’s not perfect,” Sand told members of the press at a hearing on whether to close al-’Owhali’s hearing. “But the consequences of inadvertent disclosure in this case are real and are grave — not only in terms of impact on the fairness of a future trial, but potentially, national security.” Al-’Owhali and codefendants Khalfan Khamis Mohamed, Wadih El Hage and Mohamed Sadeek Odeh are alleged to be part of a conspiracy orchestrated by the terrorist group al Qaeda and its purported leader, the fugitive Usama Bin Laden. Prosecutors say the conspiracy included the 1998 bombings of the United States embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, which killed more than 200 people and injured more than 1,000. The motion to suppress concerns a statement that al-’Owhali gave to investigators in Kenya during an interrogation just days after the bombings. Prosecutors say he told investigators about his role in the Nairobi bombing and admitted being trained for terror activities in a camp in Afghanistan. Al-’Owhali’s lawyers say the statements were the results of threats by an F.B.I. agent and that their client was denied an attorney. For different reasons, defense lawyers for the four defendants and prosecutors both agreed the hearing should be closed. Sand said Friday that he had ruled, on Jan. 9 in a sealed opinion, on the defense motion to suppress the statement. The opinion was to be unsealed last Thursday, Sand said, but he exercised his discretion and withdrew the opinion after the government moved to reopen the matter. Adam Liptak, attorney for The New York Times, who asked the court to keep the hearing open, told Sand that his ruling “reverses the constitutional presumption” that the hearing should be open. “There is substantial case authority that a transcript is not an acceptable substitute,” Liptak said. After the hearing, Liptak said Sand’s position amounted to “close the whole damn thing and afterwards we will sort out what can be released.” “The judge’s reasoning is that, even though substantial parts may be open, there is some risk that people will say something they shouldn’t say and it’s because of that possible sloppiness on behalf of the participants that the entire process should be closed.” But in last Friday’s hearing, it was clear that worries about witness safety, and the government’s concern that an ongoing investigation would be jeopardized by in-court revelations, made the judge certain that he was on solid ground in closing the suppression hearing. “I don’t take lightly any steps which would even suggest any impingement on First Amendment rights,” he said. “But it’s not absolute, and certainly there are cases in which, in the special context of a suppression motion in a criminal case, courts have recognized the authority of courts to impose restraints on access.” Sand also took issue with Liptak’s characterization of his decision as being made “for the convenience of counsel who may inadvertently disclose something.” “I think the term ‘convenience’ denigrates what we are trying to do here,” Sand said, ” … to provide maximum disclosure without impinging on the rights of the parties.” And as for Liptak’s contention that the press should be allowed to be present to report on the demeanor of the witnesses and provide some context for their testimony, Sand said, “Maybe that’s something we have to sacrifice.” JURY SELECTION The renewed hearing has set back jury selection in the terror trial until at least Jan 29. The need to resolve a series of pretrial issues brought jury selection to a halt on Tuesday of last week. Through Tuesday, the accepted pool of would-be jurors reached 66, and among the issues that Sand and the lawyers were still debating on Friday were the procedures to be used for the exercise of peremptory challenges. Sand’s decision Friday to close the hearing was not the first time that the exigencies of running a closely observed, high-security trial have forced him to reverse himself. Earlier, the judge changed his mind on allowing members of the press to be public for individual voir dire of prospective jurors. He has also delayed releasing the juror questionnaire to the press until after the completion of voir dire.

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