>From a review of the documents in attached Exhibit "A," it is clear that the "O" designation appears on Strassmeir's immigration records at a time when he clearly would not have been an overstay. The first four trips to the U.S. made by Strassmeir have the "A/O" designation when he did not overstay, and the last trip, when he did overstay, do not indicate "A/O." In addition, the comments by Mr. Brown on the last page of Exhibit "A," and incidently [sic] Mr. Brown is in a position to access all of Strassmeir's immigration records, indicate that Strassmeir overstayed on his last trip only--exactly the opposite of government counsel's representations on March 10, 1997.[25]

In addition, the district court directed the government to inform defense counsel whether Andreas Strassmeir was an informant for the ATF or other law enforcement. Government counsel has since given this information to the defense, but two months after the court ordered it, and then only during a hearing before the district court discussing these matters. The defense realizes that there are occasions where delays between the prosecution and the defense occur when furnishing information, and certainly the defense has been tardy, but in this particular instance, this information was crucial to the defense and it was simply withheld without explanation for two months.

The defense will not rely upon government representations because experience has taught us that the representations are subject to change at any time. There is a pattern here of the government representing information, the defense pointing out that the information is incorrect, and then government back pedaling and retreating to a position of safety. The defense has entreated the district court for judicial authority to put an end to this government conduct, but the district court has not entered any orders.

The government has no interest in providing the information requested by the defense. There is no penalty for their failure to do so, other than the potential threat of appellate litigation years down the road. The government is under incredible pressure to obtain convictions and death sentences in this case at trial. But the penalty for Mr. McVeigh is forfeiture of his life--if the government fails to produce information requested by the defense and Mr. McVeigh is convicted and given the death sentence, he will be strapped on to a gurney and a lethal dose of drugs will be injected into his veins. These are the reasons why the defense believes that intervention by this Court is absolutely necessary in order to ensure the fundamental fairness of Mr. McVeigh's trial, and to leave no doubts concerning the scope and type of information that the government must furnish.

In the defense's view, the articulated position of government counsel concerning its discovery obligations and its subsequent non-production of Brady material in the possession of the national intelligence agencies, is more than enough to warrant court intervention. However, even assuming prosecutorial good faith and fidelity to Brady and Rule 16, there is a much deeper, more fundamental piece of the puzzle in this case which necessitates oversight by the Court. At its core, the defense's concern is that the other agencies of the federal government simply do not consider themselves a part of this litigation, subject to the jurisdiction of the Court, or obligated in any way to cooperate with the individual counsel representing the government in this case.

The counsel for the government have been given the mandate to disclose discovery material to the Defendants on behalf of the entire United States government, but these men and women simply do not have the authority to accomplish this task. The United States government is so large and so compartmentalized into various agencies that consider themselves self-contained, that cooperation between the Department of Justice and the national intelligence agencies is the exception rather than the rule. Only this Court has the authority to compel the national intelligence agencies of the United States government to comply with the criminal discovery process in this case. Absent court intervention, it simply will not occur.

Federal Rule of Criminal Procedure 16(a)(1)(C) provides:

Upon request of the defendant the government shall permit the defendant to inspect and copy and photograph, books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government, and which are material to the preparation to the defendant's defense or are intended for use by the government as evidence in chief at the trial or were obtained or belonged to the defendant. (bold emphasis added.)

It is Defendant McVeigh's position that this rule of criminal procedure means what it says, and that the reference to the "government" means all branches and agencies of the United States Federal Government. The Plaintiff in this litigation is the United States--not the Department of Justice--and the breadth of the government's discovery obligations should span the entire federal government. The district court's Order of April 29, 1996 (D.E. 1310), supports Defendant McVeigh's position. The district court recognized that even though government counsel indicated that the intelligence agencies were not "aligned" with the criminal investigation of this case, that fact did not limit the prosecution's duty to provide discovery from these agencies if they possessed information which may be exculpatory or impeach the government's case. See United States v. McVeigh, 923 F. Supp. 1310, 1315 (D. Colo. 1996). The district court then framed government counsel's charter and stated that "the prosecutors must respond to the defendants requests for information from a broad perspective of the government as a whole." Id.

Counsel for the government in this case are incapable of doing so. As an initial matter, the defense understands the government's representations to the district court on June 18, 1996, to be simply that the national intelligence agencies have not provided any information to government counsel (other than "claims of responsibility"), rather than taking the position that the national intelligence agencies do not possess such information. In other words, counsel for the government have not physically inspected all information in the possession of the intelligence agencies of the federal government and concluded that nothing is discoverable, rather government counsel has simply made requests to the agencies and the "intelligence agencies have produced no information for us [government counsel] that falls under Brady and that would provide any exculpatory information to the defense." D.E. 1620 (Transcript of Proceedings, June 18, 1996, at 114).

This distinction is critical because counsel for the government do not physically possess the documents and information which are in the possession of the national intelligence agencies. They seek to discharge their duty to provide discovery in this case pursuant to Brady and Rule 16 by formulating "letters" to the intelligence agencies and then proceed to make statements to the Court and to defense counsel based upon the responses. But this method of investigation is wholly inadequate because government counsel have no authority to compel production from the intelligence agencies, and the intelligence agencies themselves do not recognize any duty or obligation on their part to provide discovery in this criminal case.

These statements are supported by the events of the latter part of 1995 in which the defense observed the spectacle of government counsel in this case filing a motion to obtain records from the Bureau of Prisons--a component of the very same Department of Justice and under the direct authority of the Attorney General of the United States. Yet, the same government counsel expect to satisfy this Court and the defense that a "letter" from government counsel will be adequate to persuade the intelligence agencies of the federal government, which are not a part of the Department of Justice, to produce national secrets for consumption by the defense. It is absurd.

Counsel for Mr. McVeigh received a letter from government counsel, dated September 12, 1995, addressing a prior request of defense counsel for tape recorded conversations of Mr. McVeigh generated by the Bureau of Prisons. The Bureau of Prisons is a component of the Department of Justice, as are United States Attorneys, and as is the FBI. The government's response was that, although they had obtained some recordings, "any additional recordings will only be provided with a trial subpoena or express court order." See D.E. 1923 (Vol. III Exhibit "Z"). Thereafter, on October 27, 1995, the government filed an extraordinary pleading in which the United States of America sought a court order directing the Bureau of Prisons to produce the taped conversations of the Defendants. See D.E. 1923 (Vol. III Exhibit "AA").

Defendant McVeigh responded to this pleading, noted its absurdity, and raised a concern that the government was posturing and may have ulterior motives in filing such document. The defense pleading, while not opposing the government's motion, took exception to it and articulated the hope that the government, by filing the motion, was not "attempting to create a precedent by a narrow restrictive reading of the government's obligation to produce discovery." See D.E. 1923 (Vol. III Exhibit "BB"). It seems that the defense's concerns had merit unfortunately and our prediction has proven true. The defense is unaware of any motion filed by the government seeking an order for any intelligence agency to produce discovery. The defense is aware of no explanation as to why a court order was necessary to obtain Mr. McVeigh's own statements from the Bureau of Prisons within the Department of Justice but is apparently, in the government's view, unnecessary in order to obtain national secrets from agencies outside the Department of Justice. For that matter, defense counsel is unaware of any "letters" sent from government counsel to any of the intelligence agencies, other than representations made by government counsel. They simply refuse to provide us copies of these "letters". See D.E. 1923 (Vol. III Exhibit "W").

So, there is absolutely no reason to believe that even government counsel have any faith that "letters" from the prosecution will prompt the intelligence agencies of the federal government to provide government counsel with discovery. If it takes an order from a federal district judge to compel the Bureau of Prisons, a unit of the Department of Justice, to provide discovery concerning the Defendant's own recorded conversations to the prosecutors in this case, then it surely requires an order of this Court to compel the intelligence agencies to produce information properly discoverable pursuant to Brady and Rule 16.

The critical lesson to be learned from the whole episode of the government's Motion and Order for Production of Information from the Bureau of Prisons is this: government counsel have recognized the limitations of their office. Government counsel probably cannot be faulted for this, because after all they cannot enlarge their own authority or the authority of their office, but it is disingenuous for government counsel to acknowledge the limitations of their office in dealing with the Bureau of Prisons, yet on the other hand try to convince the Court and defense counsel that the intelligence agencies possess no discoverable information simply by virtue of the fact that the U.S. Attorney has requested it and it has not been produced.

The simple fact is that there is a wall of separation between the various agencies and departments of the Executive Branch of the federal government, they are for the most part co-equal, and function independently of each other. The letter from Mr. Sheehan, Deputy General Counsel for the Department of Defense, received June 20, 1996 by the defense is an excellent example of this dynamic at work. The relevant passage is set out below:

Neither the Department nor its components is a party to this litigation, and the opinion of Judge Matsch attached to your letters imposes no discovery obligations on them. See D.E. 1923 (Vol. III Exhibit "CC"). The Department of Defense said essentially to the district court, 'The Department of Justice may have to produce information to the defense but we don't." It is a vivid illustration of the limitations of the investigative powers of the U.S. Attorneys and a stark reason for this Court to intervene and order the Department of Defense and other intelligence agencies directly to comply with the rules of discovery in this criminal case.

The applicability of Brady and Rule 16 is an all or nothing proposition. The intelligence agencies and the other various and sundry agencies of the Executive Branch are either under the jurisdiction of this Court and are bound to comply with discovery orders or they are not. Just as a person cannot be "a little bit pregnant," the intelligence agencies of the federal government cannot be "somewhat accountable" to divulge discovery to the defense. The Department of Defense clearly perceives itself as being exempt from discovery obligations in this case. The Defendant invites the Court to instruct the Department of Defense otherwise, and to use the Court's power and authority to enforce the discovery rules in this case.

The wall of separation between the FBI and the intelligence agencies springs naturally from the distinct responsibilities of these two components of the federal government. The FBI investigates domestic criminal acts; while the intelligence agencies' main responsibility is to acquire information regarding the security of the United States from foreign sources. Counsel for the government observed correctly that the National Security Act of 1947 prohibits the intelligence agencies from investigating U.S. persons for domestic criminal violations. See D.E. 1238 (Transcript of Proceedings, April 9, 1996 at 50).

But counsel for the government went on to state, and this is the logical flaw in the statement, that, "Therefore, the NSA, the CIA, and the DIA, the Defense Intelligence Agency, were not involved with this investigation." Id. Counsel for the government presupposes that the bombing of the Murrah Building was the result of an entirely domestic criminal act. We do not. This is precisely why it is a logical fallacy for the government to say that the National Intelligence Agencies do not investigate crimes, therefore they have not investigated this case.

On the contrary, the National Intelligence Agencies, while they may not have specifically investigated "this case," would have most certainly, and indeed would have been completely inept if they had not, investigated the bombing of the Murrah Building. In other words, the intelligence agencies investigated the event from the perspective of acquiring information necessary for the National Security, rather than investigating the event as the Department of Justice did in seeking to bring the perpetrators to justice. The investigations conducted by each are wholly distinct and the information generated by each investigation would not necessarily be the same, and would probably not be the same.

These differences were cogently illustrated by the highly regarded Foreign Policy Research Institute of the University of Pennsylvania, when it observed:

While these are reasonable questions, they reveal a lack of understanding about how the U.S. government works when legal and national security issues of this special sort overlap. A high wall, in fact, stands between the Justice Department, including the Federal Bureau of Investigation, on the one hand, and the national security agencies on the other. Once arrests are made, the trials of individual perpetrators take bureaucratic precedence over everything else. The Justice Department inherits primary investigatory jurisdiction, and the business of the Justice Department is above all the prosecution and conviction of individual criminals. Once that process is underway, the Justice Department typically denies information to the national security bureaucracies, taking the position that passing on information might "taint the evidence" and affect prospects for obtaining convictions. "The World Trade Center Bomb: Who Is Ramzi Yousef? Why It Matters," The National Interest, No. 42, Winter 1995/96 at 4.

This "fire wall" separating the intelligence and law enforcement communities was noted as recently as August 20, 1996 in the New York Times, in an article written by Larry Johnson, former Deputy Director of the State Department's Counterterrorism Office from 1988 to 1993. See D.E. 1918 at 34. Mr. Johnson noted the "problem" of the lack of coordination between the FBI and the CIA. Thus, the relationship between the FBI and the intelligence agencies is understandable, but hardly surprising, since the intelligence agencies' primary duty is, of course, to keep secrets. But there are a few select situations in which information in the possession of the national intelligence agencies, or even the President of the United States may be divulged, one of which is a criminal prosecution. See United States v. Richard M. Nixon, President of the United States, 418 U. S. 683 (1974). But if an intelligence agency is unwilling to divulge discoverable material, counsel for the government cannot force them to do so, and neither can counsel for Defendant McVeigh. That is the reason that this Court must now get involved.

So, in sum, counsel for the government have neither the authority nor the inclination to conduct a vigorous effort to obtain discoverable information in the possession of the National Intelligence Agencies and to divulge such information to the defense. The defense has a good faith belief that such information exists, that it is discoverable, and has provided a factual basis for the materiality of such evidence. The defense now asks the Court to take action and order such information produced.

A. Judge Matsch's Denial of Mr. McVeigh's Discovery Motions is Reviewable Upon Petition for Writ of Mandamus.

Mr. McVeigh's right to the requested discovery material is dear and indisputable. Moreover, mandamus is the appropriate means of reviewing a district judge's denial of discovery motions. In re Joint Eastern & Southern Districts Asbestos Litigation, 22 F.3d 755, 764 (7th Cir. 1994). As the Supreme Court noted in Roche v. Evaporated Milk Assn., 319 U.S. 21 (1943), mandamus is traditionally used "to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it has a duty to do so."[26]

As this Court held in Texaco, Inc. v. Chandler, 354 F.2d 655 (10th Cir. 1965), cert. denied, 383 U.S. 936 (1966):

The jurisdiction of this court to take action to guarantee a fair and impartial trial is no longer open to question. Upon an adequate showing, this court has held that it has the "power and inescapable duty," whether under the all writs statute, 28 U.S.C. 1651, or under its inherent powers of appellate jurisdiction, to "effectuate what seems to us to be the manifest ends of justice." 354 F.2d at 657 (quoting United States v. Ritter, 272 F.2d 30, 32 (10th Cir. 1959), cert. denied, 362 U.S. 950 (1960)).

The remedy of mandamus is a drastic one that should be invoked only in extraordinary circumstances. Will v. United States, 389 U.S. 90, 95 (1967). However, extraordinary circumstances abound here. Mr. McVeigh goes on trial for his life in one week. A system that would take life must first give justice. This is a case where there is no smoking gun. There has been no confession. There has been no admission of guilt. The eyewitness testimony proffered by the government so far is in disarray and is contradictory. The FBI forensic laboratory is itself under serious challenge by senior agents in scientific analysis and its critical flaws have been amply documented by the Inspector General of the United States Department of Justice. Michael Fortier, the government's star witness, has made contradictory public statements.

By not tendering the information requested in this motion, the federal government is simultaneously prosecuting Timothy McVeigh while at the same time attempting to restrict his ability to use information that is necessary to defend himself. See United States v. Fernandez, 913 F.2d 148, 154 (4th Cir. 1990). As the Fourth Circuit has stated, courts must not be remiss in protecting a defendant's right to a full and meaningful presentation of his claim to innocence. Id. Timothy McVeigh is constitutionally presumed innocent and now seeks an order from this Court commanding the government to produce that which is relevant to his defense and to which he has no other means of access. The district court's refusal to compel discovery in this capital case severely hamstrings Mr. McVeigh's ability to defend against the charges and prejudices Mr. McVeigh's right to a fair trial.

B. Federal Rule of Criminal Procedure 16 Entitles Mr. McVeigh to the Requested Discovery Material.

Federal Rule of Criminal Procedure 16 provides in relevant part:

Upon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government, and which are material to the preparation of the defendant's defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant. Fed. R. Crim. P. 16(a)(1)(C).

The material Mr. McVeigh requested under Rule 16(a)(1)(C) is both material and relevant to his defense. Mr. McVeigh's discovery requests are relevant and material in that all information obtained by the United States from intelligence sources that identify foreign or domestic groups or individuals other than Timothy McVeigh as being either responsible for, or suspected of involvement in the bombing is discovery absolutely necessary to the development and presentation of his defense.

In Bankers Life & Coal Co. v. Holland, 346 U.S.379 (1953), the Court held that when a petitioner can show either an usurpation of power or a clear abuse of discretion, the right to mandamus is clear and indisputable. The court below abused its discretion when it ignored its obligations under Rule 16. Rule 16 entitles the defense to any information that is relevant and material. The trial court's refusal to compel the government to produce the requested information violates the rules of discovery. Although the trial court is vested with wide discretion concerning matters of discovery, this discretion is not unbridled and it was abused here.

Rule 16 permits discovery that is "relevant to the development of a possible defense." United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990) (quoting United States v. Clegg, 740 F.2d 16, 18 (9th Cir. 1984)). The mere fact that some of this information may be classified is of no moment. The standard for discovery of classified information is low, and is very easily met in this case.

In order to prevail on a discovery request for classified information, a defendant must make a threshold showing that the requested material is relevant to his case. United States v. Yunis, 924 F.2d 1086, 1095 (D.C. Cir. 1991). This standard is little more than the "low" legal hurdle of relevance. United States v. Yunis, 867 F. 2d 617, 623 (D.C. 1989) (the district court properly noted that the defendant must show that the statements sought crossed the low hurdle of relevance); United States v. Yunis, 924 F. 2d 1086, 1095 (D.C. Cir. 1991) (threshold showing that the material is relevant is a "low" hurdle); see also United States v. Rezaq, 156 F.R.D. 514, 519 (D.D.C. 1994) (the threshold showing for a defendant to prevail on a discovery motion for classified information is not a high one).

Significantly, the requested discovery need not directly relate to Timothy McVeigh's guilt or innocence. Id. Rather, the requested information must simply "play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal." Rezaq, 156 F.R.D. at 519 (citing United States v. George, 786 F. Supp. 11, 13 (D.D.C. 1991)). Thus, the requested information in this motion is discoverable under the applicable legal standards.

But there is another concern here. Factually, this case is in a class by itself Counsel cannot think of any other criminal prosecution in which the full focus of the federal government's massive resources,[27] including military and intelligence resources, have been directed worldwide with the sole purpose of identifying and apprehending the persons responsible for the crime of which Mr. McVeigh stands accused.

Even the bombing of the World Trade Center in Manhattan lacked the identifiable targeting of the federal government specifically, not to mention the catastrophic casualties present in the bombing of the Murrah Building. This case simply stands alone. To the extent that the federal government has spared no resource in its investigation, it would be fundamentally unfair to deny to Mr. McVeigh a fraction of the product of that investigation when the fruits are relevant and material to the defense in this capital case.

Moreover, the relevancy and materiality of the discoverable intelligence information sought should be viewed with an eye towards the difficulty in proving such qualities at this early stage of what will certainly be a complex criminal matter. See United States v. Poindexter, 727 F. Supp. 1470 (D.D.C. 1989) rev 'd on other grounds, 951 F.2d 366 (D.C. Cir. 1991). The language and spirit of the discovery rule is designed to afford an accused, in the interest of fairness, the widest possible opportunity to inspect and receive such materials in the possession of the government as may aid him in presenting his side of the case. Id. at 1473. The Court in Poindexter felt it best to resolve close or difficult discovery issues in favor of the defendant.

The language and the spirit of the Rule are designed to provide to a criminal defendant, in the interest of fairness, the widest possible opportunity to inspect and receive such materials in the possession of the government as may aid him in presenting his side of the case. Moreover, because of the CIPA process, the Court will have an opportunity to address once again the issue of the materiality of classified documents that have been produced and their use as evidence. For these reasons, . . ., the court has been inclined to err on the side of granting discovery to the defendant of matters that may fairly be encompassed within the indictment, and it has generally resolved close or difficult issues in his favor. Id. (footnotes omitted) (bold emphasis added); see also United States v. Rahman, 870 F. Supp. 47, 51 (S.D.N.Y. 1994) (Brady and its progeny deal with the issue of materiality after a conviction and provide only limited guidance before trial when the significance of some evidence may not be fully apparent).

[CONTINUED IN PART SEVENTEEN]

[25] A defense source informs us that special status is specific to the computer system, is confidential and is available only to intelligence investigation apprehension and detention. There is no code system where "A" is "admitted" or "O" is "overstayed." "A" always means "diplomatic" and the information that "A" meant "admitted" and "O" meant "overstayed," according to our sources intimately familiar with INS records and State Department visa records, is simply inaccurate.

[26] According to the All Writs Act, "[t]he Supreme Court and all courts established by act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. ' 1651(a).

[27] A military C130 was used for photo reconnaissance of downtown Oklahoma City after the bombing. See FOX Broadcast "Ground Zero" February 27, 1996 (video footage of C130 flying over Murrah Building and interview with Capt. Steve Pulley(?) assigned to the 137th Airlift Wing of the Oklahoma Air National Guard stating that the C130 was used for "evidentiary and historical photos."). Capt. Pulley(?) stated that an FBI agent was on board the C130 as it flew its reconnaissance mission over the Murrah building. The purpose of the FBI agent was "to keep evidentiary control." Id. In addition, a variety of locations relevant to the bombing were identified for reconnaissance satellite photo image recovery. See attached Exhibit "D."