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13. U.S. Response to Application for Production of Information in Prosecutor v. Odjanic in the International Criminal Tribunal for the Former Yugoslavia (February 28, 2003)


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Introduction
The United States of America respectfully requests that General Ojdanic's Application for Orders to NATO and States for Production of Information ("Application"), as directed against the United States, be rejected, because the Defense has not satisfied any of the basic requirements of Rule 54 bis of the Tribunal's Rules of Procedure and Evidence. The Defense has failed to take reasonable steps to obtain the requested information from the United States, as required by the Rule. Its request for information is grossly overbroad. It has failed to identify the specific information sought or to explain how it is relevant to matters before the court. It has not demonstrated the necessity of its request. Finally, the United States has in fact responded fully to the Defense request, reasonably construed.
Moreover, instead of focusing its request on specific subject matters pertinent to its case, the Defense has insisted on demanding access to a generalized category of extraordinarily sensitive national security information: intercepted communications. The disclosure of this type of intelligence material, indeed even confirmation that it does or does not exist, would cause grave harm to the national security interests of the United States. Such disclosure would be particularly inappropriate where, as here, the Defense has rejected the United States' offer to cooperate through reasonable alternative means.

Background
The history of this request demonstrates that the United States has from the start sought to cooperate with the Defense in a reasonable, responsive and timely manner. The Defense, however, has framed its request and its responses to the offers of the United States in such a way as to guarantee a negative result - suggesting that its real aim is less to obtain information than to lay the predicate for a claim that its "inability" to obtain information deprives General Ojdanic of a fair trial.
The Defense request for information was received by the United States Embassy in The Hague on 25 June 2002. (Annex 1) The request targeted one of the most sensitive and closely held areas of national security intelligence information - intercepted communications - yet it set an unreasonable 30-day deadline, stating that after that time the Defense intended to seek a binding order from the Tribunal. Upon receipt of the request, the United States sought to arrange a meeting with the Defense. This was consistent with the United States' practice for requests from other defense counsel and from the Office of the Prosecutor (OTP). Whenever a request is unclear, insufficiently justified, overbroad, or otherwise framed in a problematic manner, the United States meets with the OTP for an informal discussion, to obtain a better understanding of what information is needed and why, and to suggest ways of reframing the request to maximize the chance of a satisfactory response.
The Defense resisted the proposed meeting, stating that it preferred to create a written record because it expected to file an application for a binding order. (Annex 2) The United States urged reconsideration:

"We are committed to assisting the Tribunal's work, and to help ensure that the interests of justice are served. This includes cooperating with defense counsel, which we have successfully done in the past. We have found it extremely helpful to both sides to discuss the specific information needs of the defense team, the USG's approach to searching for and disclosing information, and the protections required for any information that may be disclosed to the defense team. Such discussions assist the defense in framing a request that is most likely to receive a timely and satisfactory response. They are conducted in confidence, to ensure that defense strategy is not compromised." (Annex 3)

Defense Counsel acquiesced and, on 19 September 2002, met with the Legal Counselor and Deputy Legal Counselor at the United States Embassy in The Hague. At that meeting, the Legal Counselor stated that the United States was prepared to cooperate with the Defense, and explained the general guidelines for such cooperation, including inter alia: that information sought must be relevant and material; that the United States would respond to reasonable, focused requests; that the United States would not provide access to classified information, but was prepared to discuss specific information needed by the Defense and would attempt to respond on an unclassified basis; that the United States neither confirms nor denies the existence of intercepted communications, and that it would be more productive to indicate specifically the actual information sought, rather than the type or form of the information - and that this would enable the United States to search for and provide useful information without identifying its source; that the United States could not disclose information provided to it by other countries; and that if the United States became aware of exculpatory information from any source, it would explore ways to make it available.
On 28 September 2002 the Defense submitted a revised request, but reserved the right to seek a binding order on the three items in its original request. (Annex 4) The United States initiated a search for relevant documents, construing the broad request in a reasonable manner, yet six weeks later, on 13 November 2002, the Defense filed the current Application. Notwithstanding the filing of the Application, the United States continued its search for and processing of responsive information. On 24 January 2003, the United States responded to the original and revised requests, offering responsive documents:
"Since receiving your two requests the USG has conducted a review of its records and identified a collection of potentially responsive documents that have been redacted and declassified to permit release of their responsive portions to the defense. None of the records reviewed during this process contains exculpatory information, and no such information is being withheld." (Annex 5, emphasis added)

On 29 January 2003 the Defense declined this offer of information, stating: "While we are grateful for your attention to this matter, we feel that General Ojdanic's interests would be best served by the Trial Chamber's granting of our existing motion." (Annex 6, emphasis added) The United States promptly urged the Defense to reconsider. While the United States believed that it had offered the Defense everything it could reasonably demand, and was prepared to support that position before the Tribunal, it did not require the Defense to agree or to drop its motion. Thus, the Executive Agent for the United States interagency group charged with providing information to the Tribunal explained:
"I would like to make clear that the USG's offer of responsive documents is not conditioned on the Defense withdrawing its motion as it relates to the USG. As we have previously explained, the USG regards its role as furthering the cause of just adjudication, through the provision of whatever information we can provide consistent with our national security interests, and without regard to whether the information is being provided to the Prosecution or the Defense." (Annex 7, emphasis added)

The Defense Has Not Taken Reasonable Steps To
Obtain the Requested Information

Rule 54 bis (A)(iii) requires an applicant to "explain the steps that have been taken by the applicant to secure the State's assistance." Implicit in this requirement is not only that the applicant take some steps, but also that those steps be reasonable. Indeed, Rule 54 bis (B)(ii) expressly permits the rejection of an application in limine if it appears that reasonable steps have not been taken.
Far from taking reasonable steps, at every stage the Defense has taken actions suggesting that its real motive was to elicit a negative result. Rather than craft its request around a specific description of information it actually needed, it started with a broad demand for access to intercepted communications - and demanded response within 30 days.
It initially rejected the United States offer of a meeting to discuss ways of framing a request so as to enhance the possibility of obtaining the information it actually needed - invoking instead the self-fulfilling prophecy that cooperation was futile, so that the real point of the exercise was to create a paper record for an eventual Application:
"Frankly, I expect that this request is going to create some tension between the right of the government to protect its intelligence information and the right of the accused to discover relevant material about his case. So perhaps having our communications in writing would be the most prudent thing to do so that the ICTY Trial Chamber can have an accurate record of our efforts to obtain voluntary compliance prior to seeking a Binding Order." (Annex 2, emphasis added)

When, after relenting and agreeing to meet, the Defense submitted a revised request, it made clear that it was reserving its right to seek a binding order on its original request. (Annex 4) That it had never in fact abandoned that strategy was made plain by the timing of its subsequent Application. In filing the Application only six weeks after making its revised request - and despite the United States' expressions of willingness to cooperate - the Defense demonstrated either a striking lack of understanding of the time required to search, evaluate and process sensitive national security information for disclosure, or a set determination to forestall United States cooperation.
The Defense then rejected the United States' offer of responsive documents - even after the offer was repeated with the clarification that the United States did not demand withdrawal of the Application as a quid pro quo.
This record does not represent "reasonable steps" to secure the assistance of the United States. To the contrary, the Defense has rejected that assistance, and the United States respectfully submits that the Tribunal should therefore reject the Application.

The Request for Information is Overbroad


The Defense has also failed to satisfy the threshold requirement of Rule 54 bis (A)(i) that the requesting party "shall ... identify as far as possible the documents or information to which the application relates." The Appeals Chamber, in the Blaskic Subpoena Decision, underscored that a requestor must "identify specific documents and not broad categories," while recognizing that specific details may be omitted if the requestor explains why he is unable to provide them. The Defense request does just the opposite. Its demands are framed in the broadest possible terms, with no explanation for its lack of specificity. Yet this request, as finally explicated by the Application, primarily seeks statements made by or to General Ojdanic. Clearly, General Ojdanic would know what those statements were, which are of interest to the Defense, who uttered them, where and when. Thus, the Defense's insistence on framing its request in the broadest and vaguest of terms is indefensible.
The original Defense request demanded "all recordings, summaries, notes, or text of any and all intercepted communications" in which General Ojdanic was either a party, or was mentioned or referred to. (Annex 1, numbered paragraphs 1 and 2) Also demanded was all other information "in any form from any source relating to statements made by or about General Ojdanic." (Annex 1, numbered paragraph 3) Even limited to the specified six-month period, this was grossly overbroad and unnecessarily intrusive - there was no indication of what content or subject-matters were specifically being sought, or what the Defense hoped to prove with them. Yet that was precisely what was required to enable the United States to focus its search and disclosure on genuinely relevant material.
The United States, in its meetings and correspondence with the Defense, attempted to elicit a reasonable, clear and focused description of the specific information sought, and undertook to search in all USG sources for the information so described. However, the Defense refused to make its request more specific in any meaningful way. Its revised request demanded all materials "reflecting the content of any oral or written statements made by General Ojdanic." (Annex 4) The only limitations were the six-month time period, and the exclusion of "personal or social" statements and news media reports.
In its Application the Defense framed yet another revision of its request - misrepresenting it as the request with which NATO and its member States had failed to comply. (Application � 1) In this revision, the first paragraph remained unchanged except for minor stylistic editing. The second paragraph qualified the request for communications intercepts with the phrase "originating in the Federal Republic of Yugoslavia, and relating to Kosovo" - a change which does not cure the overbreadth of the original. The third paragraph was revised to request:
"All correspondence, memoranda, reports, recordings or summaries of any statements made by General Dragoljub Ojdanic during the period 1 January through 20 June 1999 to any representative of your organization, including sources of information working on your behalf."

This represents a substantial revision, but remains overbroad for all the reasons applicable to the original. Moreover, its inclusion of "sources of information working on your behalf" in the definition of United States "representatives" goes to the heart of yet another of the most sensitive areas of national security information - the identity of intelligence sources.
The United States respectfully submits that both the original and the revised Defense requests would be too broad in any context. They are even more so, taking into account the Defense' attempt to target intercepted communications and the identity of intelligence sources.
The only thing close to an explanation of what the Defense actually seeks appears in its Application. This comes too late. The Defense cannot cure an overbroad request through its Application to enforce that request.
In any event, the explanation adds little or nothing. In the section of the Application directly addressing the issue of specificity, the Defense merely restates in summary form its request for information. (Application � 12) In the following section, addressing the issue of relevance, the Defense asserts that statements made by or to General Ojdanic might show whether he participated in the crimes or in the joint criminal enterprise alleged in the indictment, or whether war crimes were reported to him or brought to his attention, or reveal his state of mind concerning events in Kosovo and the prevention of war crimes. (Application � 15) In other words, the Defense seeks unspecified information it hopes will prove exculpatory.
If General Ojdanic is aware of statements made by or to him that contained exculpatory information, he and his defense counsel are best placed to specify what those statements were, who uttered them, to whom they were uttered, where and when. This is not a case in which the requestor does not know exactly what information he is looking for, so there is no justification for this nebulous and far-ranging request.
Accordingly, the United States respectfully submits that the Tribunal should reject the Application, for failure to satisfy the requirements that the request for information be reasonably specific and indicate its relevance to a matter at issue.

The Defense Has Made No Showing of Necessity
Rule 54 bis (A)(ii) requires the Defense to demonstrate that its request for information is "necessary for a fair determination" of the issues being tried. "Necessity" in this context is twofold: the content of the information should be shown to be potentially critical to the adjudication of guilt or innocence; and it should be shown that the State is the best, or only, source of that information.
Here, the Defense has made no showing of necessity, in any form. As noted above, the Defense request primarily seeks statements made by or to General Ojdanic. The Tribunal cannot judge the importance of any such statements, without knowing what they are alleged to contain. Yet the Defense, which is in the best position to know what statements were made by or to the accused, what orders he gave, and how any of these were transmitted or memorialized, has put none of this before the Tribunal.
Similarly, the Defense has made no showing that the United States, or any other State or organization, is the best or only source of such statements. Whatever the statements may have been, the Defense is in fact their best source.
Since the accused is the best source of information concerning statements made by or to him, the information sought from the United States appears to be for the purposes of corroboration. Once again, however, the United States is not the best, or only, source of such corroborating evidence. General Ojdanic presumably knows who made or witnessed any alleged statements, and whether and how they were memorialized. The Defense is in the best position, and has the responsibility, to seek corroboration from those sources, or to explain why it cannot.
Accordingly, the United States respectfully submits that the Tribunal should reject the Application, for failure to demonstrate that the request directed to the United States is necessary for the fair adjudication of any matter at issue in this case.

The United States Has Responded Fully to the
Defense Request, Reasonably Construed

From the outset, the United States made clear to the Defense that the United States was prepared to cooperate, but that requests would have to be reasonable and focused, that responses would be limited to unclassified material (including redacted and declassified material from classified sources), and that the existence of intercepts would be neither confirmed nor denied. At the same time, the United States undertook to search all sources for responsive information and, if specifically exculpatory information was located, to seek a means of providing it to the Defense.
Despite the Defense's refusal to reasonably narrow or explain its requests, the United States did conduct a search of all sources. It identified responsive information, redacted and declassified it, and offered it to the Defense. The United States did not find any exculpatory information, and it so informed the Defense. (Annex 5) Taking the Defense request together with the explanation of the request offered in paragraph 15 of the Application - that the Defense seeks generalized exculpatory information - we submit that the United States response is a full and complete response to that request.
Accordingly, the United States respectfully submits that the Tribunal should reject the Application, on the ground that the United States has made a full response to the Defense request for information, reasonably construed.

Legitimate National Security Concerns Justify the
United States Refusal To Make Further Disclosure
The United States has a compelling national security interest in protecting information about intercepted communications, including whether or not it possesses them. Disclosure of such information may reveal not only the content of particular information, but the extent and nature of United States capabilities, and where and how they might be directed. Such information is among the most highly protected national security assets of the United States, and its compromise would cause grave damage to United States national security.
It is for this reason that the United States refuses to confirm or deny the existence of intercepts. This policy applies equally to the Defense and the Prosecutor. Throughout the course of its information-sharing relationship with the Prosecutor, the United States has consistently declined to confirm or deny the existence of intercepts, instead taking the same approach as was taken in this case with the Defense. This approach enables the United States to search in all sources, and to disclose relevant information in a manner that does not compromise any intelligence sources and methods.
This Tribunal recognizes the validity of such concerns. Rule 54 bis specifically contemplates that States may object to disclosure of information on national security grounds. The Blaskic Subpoena Decision, which Rule 54 bis largely reflects, strongly suggested that such concerns should not be lightly dismissed. Although the Appeals Chamber in that case held that Article 29 of the Tribunal's Statute "derogates from international law" by overriding the national-security "privilege" in customary law, it grounded its interpretation of Article 29 on the damage that would be done to the Tribunal's mission if it were denied information it characterized as "of decisive importance" or "crucial." Thus, the threshold showing of necessity required by Rule 54 bis is even higher when the national security interests of a State are implicated. It should not be presumed that the United Nations Security Council, in approving Article 29, intended to invade States' sovereign prerogative to protect national security information on any lesser justification.
Yet, as noted above, the Defense has made no showing of necessity. Against this failure, the United States asks the Tribunal to consider the substantial cooperation the United States has already offered to the Defense, its compelling reasons for protecting highly sensitive intelligence sources and methods, and its representation that it is withholding no exculpatory information.
The United States further asks that the Tribunal, in assessing these matters, consider the demonstrated bona fides of the United States. In the Blaskic Subpoena Decision, the Appeals Chamber observed:
"[A]ccount must be taken of whether the State concerned has acted and is acting bona fide. ... The degree of bona fide cooperation and assistance lent by the relevant State to the International Tribunal, as well as the general attitude of the State vis-a-vis the International Tribunal (whether it is opposed to the fulfilment of its functions or instead consistently supports and assists the International Tribunal) are no doubt factors the International Tribunal may wish to take into account ...."

The Appeals Chamber was speaking of the weight to be attached to the representations of a State when the Tribunal reviews documents which are alleged to raise national-security concerns. However, these considerations are no less applicable here, where the United States argues that the Defense has not even made a showing sufficient to justify such a review.
Since the creation of the Tribunal, the United States has been among its strongest supporters. The United States has been unstinting in the provision of information to the Prosecutor, and has cooperated with defense counsel as well. The United States has few rivals in the quantity, quality and variety of information provided to the Tribunal. In considering the representations of the United States made above, we respectfully ask that the Tribunal give this longstanding cooperation and support due weight.


Conclusion
For the reasons stated above, the United States respectfully requests that the Tribunal reject the Defense Application.

Respectfully submitted,

Clifton M. Johnson
Legal Counselor
Embassy of the United States



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