MARCH 25, 1997


The trial judge below has devoted an extensive amount of judicial time to
discovery issues in this case, the issues have been thoroughly briefed and
argued in the district court and are the subject of two Court orders. See
D.E. 1310 and D.E. 3016. No criticism is intended here toward his diligence
or effort, but, in the spirit of effective advocacy, it appears to counsel
from a careful study of how the respondent trial judge has handled this
matter that he does not believe he has authority to enter orders compelling
compliance pursuant to Rule 16 or Brady. Rather, the district court seems to
have taken the position that these matters are to be resolved by the
prosecutors in this case and the district court will rely upon the
representations of the prosecutors on discovery matters. See, e.g., D.E.
3016 at 3; D.E. 3410 (Pre-Trial Hearing--Sealed--not provided to Defendant
Nichols, March 10, 1997, at 34).

However, it has become very clear to counsel that the prosecutors in this
case are simply not going to conduct a thorough search responsive to the
requests of defense counsel. For just one example, government counsel
candidly acknowledged that they had not requested information from the
intelligence agencies concerning Dennis Mahon. See D.E. 2519 (Hearing on
Motions--Volume V--Sealed, provided only to government and Defendant
McVeigh, November 14, 1996, at 310-11). Government counsel may believe, in
good faith, that none of the requested information is relevant, but the
perceptions of government counsel do not change the fact that the defense
has made an extensive showing of materiality and relevancy. This information
is vital to the defense. Without it, the defense is being denied the
opportunity to prove or establish that its client is not guilty. An order
from this Court is necessary so that there is no dispute, no "breathing
room," as to the scope of the government's obligations to provide discovery
material to the defense, and counsel requests respectfully a ruling as to
whether the defense has made a sufficient showing of materiality as to the
specific items requested.

The government does not deny that the bombing of the Murrah Building
initiated what was arguably the most massive and intensive investigation
into a criminal act in this nation's history. The government does not deny,
and based upon the information in the public record as manifested in
Defendant McVeigh's Motion for the Disclosure of Classified Information
(D.E. 1079), it cannot deny that the national intelligence agencies of the
United States government were involved and participated in the investigation
of the bombing of the Murrah Building, at least in the "preliminary
meetings." See D.E. 1238 (Vol. I Transcript of Hearing on Motions, April 9,
1996, at 92). The government has not denied that the intelligence and
investigative agencies of the United States government have compiled volumes
of information, some of which is classified, concerning the bombing of the
Murrah Building.

As to intelligence agencies, the government has assured the district court
and the parties to this case that these agencies simply do not possess any
discoverable information, other than "claims of responsibility". D.E. 1620
(Transcript of Hearing June 18, 1996 at 11314). The prosecutors in this case
are confident that the intelligence agencies possess no information which is
discoverable to Defendant McVeigh because they have "sent letters" to the
Central Intelligence Agency, the Defense Intelligence Agency, and the
National Security Agency, requesting "all material they had under Brady,
Rule 16 and Jencks Act and any information they had which would tend to show
that these defendants did not participate in the crime or that others
carried out the crime." D.E. 1238 (Vol. I Transcript of Hearing on Motions
April 9, 1996, at 51).

In addition, the prosecutors in this case have directed correspondence to
the Pentagon inquiring whether the Department of Defense has conducted a
classified study of the bombing of the Murrah Building. See D.E. 1923 (Vol.
III Exhibit "V"). The government has refused to provide defense counsel with
a copy of any of these letters sent to the intelligence agencies and to the
Pentagon. See D.E. 1923 (Vol. III Exhibit "W"). The defense therefore has no
way of knowing whether the letter stated correctly what the Defendant
requests and the government's duty pursuant to Brady; or whether these
letters are in reality a "wink and a nod," to these agencies and are
therefore simply empty, meaningless pieces of paper.

There are (at least) two (2) fallacies in the government's approach in
attempting to obtain discoverable information from the intelligence agencies
which undermine its assertions that the intelligence agencies possess no
discoverable information and which make the denials by government counsel
not creditable. The first fallacy is that counsel for the government
understands properly the contours of the Brady decision and its progeny,
that is, has a basic understanding of what the Supreme Court means when it
held that the government must disclose exculpatory information to the
defense in order for a criminal trial to be fundamentally fair. Because
counsel for the government has exhibited such an extremely restrictive
definition of Brady, and because it is the government counsel that frames
the requests in the letters to the intelligence agencies, the agencies could
in good faith respond negatively to the requests yet still possess
discoverable material necessary for a proper defense in this case.

The second fallacy, and also the most fundamental, is that the alphabet soup
of government, agencies which possess information responsive to defense
discovery requests are in effect, separate fiefdoms of the federal
government as opposed to a cohesive centralized federal government, and
simply do not consider themselves part of this litigation, subject to the
jurisdiction of the district court, or obligated in any way to respond to
the requests of the Department of Justice lawyers representing the
government in this criminal case. Each of these concerns will be addressed
in turn. 

A. The Government's Restrictive Definition of Brady. 

There is no dispute in this case that the government must furnish to the
defense information which is exculpatory and impeaching of government
witnesses and evidence as those terms are defined in Brady v. Maryland, 373
U. S. 83 (1963) and Giglio v. United States, 405 U. S. 150 (1972). See
United States v. McVeigh, 923 F. Supp. 1310, 1313 (D. Colo. 1996). The
district court has articulated the obligations of the prosecutors to
disclose such evidence and has observed that "the individual prosecutor has
a duty to learn of any favorable evidence known to the others acting on the
government's behalf in the case, including the police." Id. at 1313 (quoting
Kyles v. Whitley, U.S. , 115 S. Ct. 1555, 1567, 131 L. Ed. 2d 490 (1995)).

The district court declined to enter an order compelling discovery on these
matters, in part, by relying upon the representations of government counsel
that the government had requested Rule 16 and Brady material from other
government agencies and that the government was "being careful" and would
"err on the side of caution producing more documents than we think would be
necessary to turn over." Id. at 1313. Leaving aside the compelling case to
be made that government counsel's statements were at best disingenuous which
is discussed in great detail in a pleading filed August 22, 1996 (see D.E.
1898), this Court should have no confidence in the government's
representations concerning its efforts to locate and identify information in
the possession of the intelligence agencies because 1) government counsel
view their obligations pursuant to Brady in an impermissibly restrictive
way, and 2) even assuming that the prosecutors are in tune with Brady, they
have no authority to compel other government agencies to produce
discoverable classified information and they are utterly powerless to act on
behalf of the entire United States government in complying with
constitutional and federal rules concerning discovery in this area.

The individual prosecutors in this case simply have no way to compel or
require such agencies to conduct any search or inquiry of their files or
investigative reports. There is no court order; just simply some Supreme
Court decisions that the agency bureaucrat has not ever read. It is one
thing to presume the good faith of Mr. Hartzler, but it is quite another
thing to presume the good faith of the CIA station chief in Israel or
Kuwait, or a research analyst at the NSA in Ft. Meade, Maryland.

In the April 29, 1996 Order (D.E. 1310), the district court stayed its hand
in issuing a direct order compelling disclosure of classified information
based upon the representations of government counsel. However, the district
court's reliance upon the government's representations presupposed that the
government counsel understands their duty pursuant to Brady and Rule 16 and
that they have the means and authority to perform that duty. Neither of
these presuppositions have proven

The district court, on the record, has expressed "concern" over statements
made by the government counsel with respect to the government's discovery
obligations pursuant to Brady and Giglio. See Transcript of Proceedings,
December 13, 1995, at 44 (in the Western District of Oklahoma, Case No.
CR-95-0110-MH), no docket number aligned. Government counsel had, on
November 21, 1995, submitted correspondence to defense counsel stating that
defense counsel's definition of "exculpatory information" was "far broader 
than ours [the government's]". See D.E. 1923 (Vol. III Exhibit "X").

In this letter, counsel for the government includes the astonishing sentence
that, "In my opinion, nothing the Fortiers, or Eldon Elliott or Vicki Beemer
said can fairly be characterized as exculpatory of your client." Id. Counsel
for Defendant McVeigh has provided the district court with this example on
several prior occasions, but its importance cannot be over-emphasized.
Government counsel may, in good faith, view his obligations pursuant to
Brady and Giglio in such a restrictive manner; but his view is clearly

Because the distract court was "concerned" that government counsel took a
restrictive view of their Brady obligations, the Court corrected government
counsel on the record as follows: 

     This word "exculpatory" has been misused a lot, 
     I think. Not here, but generally. It's like, "to 
     be exculpatory, it has to be something that proves 
     you're not guilty." That isn't the case. It's 
     something that may diminish the government's 
     evidence and the credibility of its witnesses.

(Transcript of Hearing, December 13, 1995 at 45 (Western District of
Oklahoma, Case No. CR-95-0110-MH), no docket number assigned). 

The most telling and insightful statement made by government counsel in this
case concerning discovery then occurred after the district court made the
above statement. After the Court had explained the definition of Brady and
Giglio to government counsel, government counsel indicated in the very next
sentence that he simply disagreed with the Court. He stated, "You accept Mr.
Jones' definition, and I will abide by that, of course." Id. at 46. What
government counsel dearly meant was that he disagreed with the district
court's views concerning discovery and the government's Brady obligations,
but simply recognized the Court's authority to define and make legal
decisions in this case.

But the district court has declined to intervene in this protracted
discovery dispute and has declined to order directly the government to
produce exculpatory evidence. Thus, counsel for Defendant McVeigh
respectfully suggests to the Court that the prosecutors (and maybe even the
government) may be acting in good faith in complying with its discovery
obligations, but they are simply acting in accordance with their own 
narrow view of their duty to disclose exculpatory information and are 
applying their definition of Brady rather than the Court's. Because, 
despite what the government says, the government's actions have shown
this to be the case. There are other indications.

In June, 1996, the government produced to the defense a multitude of FBI
302's, including a sheet of paper regarding Serial #14838. See D.E. 1921
(Vol. I Exhibit "A"). This sheet of paper advised the defense that Serial
#14838 contained "classified material not associated with this case[.]" Id.
Yet on July 31, 1996, defense counsel again received this same sheet of
paper indicating that this "classified" material was not associated with
this case, but attached to this description was the two aforementioned FBI
302's that have been the sum and substance of the government's production
regarding classified intelligence information. Id. These FBI 302's could not
be more "associated with this case," more exculpatory of Defendant McVeigh,
or more relevant and material to a defense to the charges in the indictment;
and that is not to mention that the investigation of the information in
these 302's occurred on the day of the bombing--April 19, 1995--but were
"transcribed" on June 18, 1996, and provided to the defense July 31, 1996.

If this Court were to peruse D.E. 1923 (Exhibit "Y"), the Court would find
extensive details concerning neurotic fringe persons making fanciful
"confessions", and who are clearly unreliable and mentally unbalanced, while
finding not a word about information relayed by a very senior officer in the
intelligence community of a major American ally informing the United States
government that a foreign power perpetrated the bombing of the Murrah
Building. This is the type of petty gamesmanship that defense counsel has
come to expect from the government, it is fundamentally unfair to Defendant
McVeigh, it is contrary to this Court's explicit definition of Brady and
Giglio, and if it continues unabated, it will ultimately result in a
reversal of a conviction in this case should that occur.

Although the district court has recognized that the individual prosecutors
in this case bear the burden of disclosure. Defendant McVeigh ultimately
bears the risk of nondisclosure: his life. It is Defendant McVeigh whose
interests are really at stake in this discovery dispute. The only reason
that the individual prosecutors in this case have a duty of disclosure is to
vindicate Defendant McVeigh's constitutional right to a fair trial. Thus,
although the individual prosecutors are charged with the duty of disclosure,
the relative risks of non-disclosure are stacked against the Defendant
because the risk to the prosecution is reversal of a conviction and a
retrial, but the risk to Defendant McVeigh is his very life. The prosecutors
in this case are, and there is no other diplomatic way to articulate it,
trifling with the administration of justice in this capital case and this
Court must simply put a stop to it. Judicial oversight of the discovery
process in this case is the only method of assuring compliance. It is, we
respectfully submit, long overdue.

The fundamental misunderstanding and distortion of Brady by government
counsel is critical in this case because the only method by which they have
attempted to acquire classified intelligence information is through letters
sent to the various agencies, specifically the Central Intelligence Agency,
the National Security Agency, and the Defense Intelligence Agency, "asking
them for all materials they had under Brady, Rule 16 and Jencks Act and 
any information they had which tend to show that these defendants did 
not participate in the crime or that others carried out the crime." 
See D.E. 1238 (Vol. I Transcript of Hearing, April 9, 1996 at 51).

However, counsel can have no faith in these "letters" sent by government
counsel to the various intelligence agencies because government counsel have
a view of Brady that is at odds with the controlling legal authority. There
thus exists a situation whereby an intelligence agency could in good faith
respond negatively to an inquiry from government counsel, yet still possess
information that it would be required to disclose under the appropriate 
definition of Brady and that of the Supreme Court cases. Counsel for the 
government have refused to provide the defense with a copy of their 
requests to the intelligence agencies. See D.E. 1923 (Vol. III Exhibit "W"). 
The district court explicitly declined to approve or disapprove the 
government's letters to the intelligence agencies. See D.E. 2519 at 305. 
the district court articulated its concerns, stating that the court was 
not going to provide a "shield" to anyone by saying that the court has 
put its seal of approval on the letters. Id. The court then recognized 
that it was the ultimate responsibility of government counsel to produce 
discoverable information. Id. at 6.

Defendant McVeigh is thus forced to rely upon the "good faith" of the
government[24] to perform its disclosure obligations. 


[24] The same government that seeks his conviction and execution.

But Defendant McVeigh will never be content under any circumstances to rely
upon the "good faith" of any agency of the United States government. The
United States government is a party opponent in this case, an adversary with
virtually unlimited resources, and is aggressively seeking to execute Mr.
McVeigh. Counsel for the government, and for that matter the personnel
staffing the agencies of the federal government, are litigants in this case,
they have a vested interest in this prosecution and in obtaining a
conviction and death sentence, it is in their interests to not disclose
information or to disclose as little as possible, and the defense will never
be content to "take their word for it" or rely upon their "good faith".

In the "ordinary" capital case, there may be no reason to question the good
faith representations of the prosecution or even the state government
(although the case law would certainly suggest numerous instances of
unjustified reliance or reliance misplaced or abused). But this is not an
ordinary case. This is a case where the government itself was the target.
Employees of the plaintiff were injured or killed. More than 15 government
agencies lost employees to death. Whole departments and regional offices
were destroyed, their work set back for months, in some cases years, and in
still other cases, can never be resumed.

Among these agencies were numerous law enforcement agencies, in fact, every
major federal law enforcement agency except the FBI. The ATF, Secret
Service, Drug Enforcement Agency and the Department of Defense, CID, and
even the Postal Inspectors (their building was catty-corner from the Alfred
P. Murrah Building) were involved as victims. Under these circumstances,
with 168 dead, 500 injured, and damage estimated at three quarters of a
billion dollars, it is not appropriate to rely upon their good faith, any
more than it was appropriate to rely upon Oklahomans as jurors, and for the
same reasons.

These government agencies do not honor the presumption of innocence, and
they are not going to help the defense provide our client with a fair trial.
They just are not. The drum beat of prejudicial leaks, courthouse
video-taped walkouts, presidential press conferences, and indeed the size
and magnitude of the crime itself, and its novelty on these shores, all
worked to prejudice the defense preparation in multiple ways. Some of the 
effects have included massive media interest with the result that many 
important fact witnesses refused to talk with the Defendant's counsel
and investigators. When civil suits were filed by victims which might 
have afforded the defense the opportunity, legitimately, to take 
depositions of lay witnesses, the suits were dismissed on the eve of 
the depositions, or when the plaintiffs would not or did not dismiss, 
the government sought a stay. The result being that many sources of 
information were--and still are--cut off though these same witnesses 
continue to talk to FBI agents and to the press.

The inability of the defense to depose witnesses allowed the FBI to go back
to key defense witnesses and intimidate them by asking for polygraph tests
and telling them "you did not see what you claimed to have seen." The
defense was also prejudiced because there was a massive overwhelming sense
of collective judgment that the Defendant was guilty, and that was it. The
trial would be simply to rubber stamp of the validity of the arrest and
public relations campaign in the press that our client is guilty. Government
agencies, and others, simply refused to consider the possibility of
innocence, or that others might be involved, even a foreign connection. One
wonders how many American have to die in the World Trade Center, over
Lockerbie, in a military barracks in Saudi Arabia, or off Long Island to
realize that there is nothing remote, fanciful or inconsistent about the
same foreign hands (or others) being involved in the bombing of the Murrah

The government does not produce truly exculpatory evidence because it does
not believe it exists. Or, if it exists, it is not credible (or so they
claim). Either the Defendant has established that the material he seeks from
the national intelligence agencies is exculpatory or he has not. If he has,
then he needs a court order to pry it out, or at least, if that does not
work, there will not be any dispute later as to what should have been done.
The district court relied on good faith professed on the part of the
prosecution, but the defense does not see any compelling need to rely upon
the good faith of the Deputy General Counsel of the DOD, William Sheehan 
and his counterparts throughout the federal bureaucracy, because he does 
not have any. See D.E. 1923 (Exhibit "CC").

In fact, Mr. Sheehan's knowledge of his legal obligations under the
Constitution is so wrong it is breathtaking in its audacity: The Department
of Defense is not a party to this suit and is not bound by the Court's
order. The last time the defense looked at the Indictment it was captioned
"United States of America" versus Tim McVeigh, not 'The Department of
Justice" versus Tim McVeigh. This district court's order of April 29, 1996
(D.E. 1310) directed a response from the government as a whole. To
paraphrase a currently politically correct statement used in another
context: the government agencies just don't get it.

The government may respond once again citing gross numbers of discovery
items produced, but that is hardly the issue. Have we received everything
pursuant to a specific request, not just some of it, or fifty percent of it
or even ninety-nine percent of it? If there is a specific request, and the
government claims it has supplied it all, then it should inform the defense
which discovery items are responsive and sign a paper with the district
court that the defense has it all instead of just waiving a hand at a
warehouse full of papers and tangible objects and say: it's in there. The
government hopes that in the abundance of irrelevant material it has
furnished the truly relevant will not be missed. The defense comes before
the Court at this time and seeks invocation of the Court's authority to take
control of the discovery process in this case. 

There are a myriad of examples where the government has, in the defense's
view, stonewalled, delayed, and obstructed the discovery process in this
case. Examples include the following:

1. Carol Howe: As discussed supra, the government provided to the defense
information that we now know came from Carol Howe, but that was presented to
the defense on January 26, 1996, in such a way that every proper noun was
grossly misspelled and Carol Howe was referred to as a confidential
informant named "Carol"--indicating that Carol may not have been her real
name (or the informant may not have even been a female) and certainly did
not give a last name. Such was the excess of the sloppy (or the defense
believes more likely intentional) spelling in this report, the government
itself could not even find it when the Court ordered it to respond to
defense requests concerning this information and this particular report was
omitted. In isolation, the defense might have been willing to credit the
government's claim that it could not find this particular insert, but since
it follows a clear pattern of government careless handling of exculpatory
information, the defense now believes that it was deliberate. But that is
not to say that the individual prosecutors in this case did it. The defense
believes that over zealous investigators within the ATF and the FBI are
likely responsible.

In addition, government counsel stated to the Court, as discussed supra,
that Carol Howe had been dismissed as an ATF informant in March 1995, when
in fact, as the ATF knew, she had become an ATF informant again in early May
1995. Government counsel advised the district court of these facts only when
defense counsel brought it to their attention.

2. Government characterization of Brady: Government counsel, by written
letter (D.E. 1923, Exhibit "X") represented to defense counsel that in its
opinion, no statements made by Michael Fortier, Lori Fortier, Eldon Elliott
or Vickie Beemer could be characterized as exculpatory. Defense counsel
believes this statement is a compelling insight into the government's view
of its Brady obligations which underscores the need for judicial
intervention. The statements made by those individuals are so exculpatory
that lengthy hearings have been held before the district court concerning
their contradictory statements concerning clothing worn by "Robert Kling,"
who Kling was with, and what the other person looked like. The statements of
these individuals are so obviously exculpatory under the existing case law
that, when defense counsel received government counsel's letter  containing
these statements, there was an immediate red flag raised and defense counsel
was placed on notice to monitor discovery matters very carefully. Defense
counsel is now convinced that the government in this case will not honor its
discovery and Brady obligations absent judicial intervention.

3. Information from Saudi Arabia: This information is discussed more fully
in D.E. 1898, but the concern to the defense is that the government received
facially credible information from a foreign intelligence officer that Iraq
had targeted specifically the Murrah Building by contracting seven (7)
Afghani freedom fighters residing in Pakistan to carry out the bombing. The
government became aware of this information the day of the bombing-April 19,
1995--yet, the two simple reports generated by the government were provided
to the defense under the guise of being "possibly non-pertinent" nearly one
year after the bombing and spread out over five months, although the two 
reports were transcribed on the same day. See D.E. 1898 (Exhibits "3" and "4").

4. "Master Minds": As discussed supra, the government indicated to the
district court that it had no information that any persons other than the
charged Defendants were the "master minds" of the bombing of the Murrah
Building. But this statement was made at a time when the government was in
possession of the information relayed from Saudi Arabia concerning Iraq
targeting the Murrah Building and using Afghan rebels to carry out the
bombing. The government clearly had information that persons and/or
organizations other than the charged Defendants were the master minds of the
bombing. It is only when the defense points these things out that the
government then retreats and amends its disingenuous statements as "there
was no underlying credible information" that others (as the Grand Jury noted
"unknown others") were responsible for the bombing.

5. Andreas Strassmeir: Information received from the government concerning 
Andreas Strassmeir indicates certain symbols concerning Mr. Strassmeir's
immigration information. See attached Exhibit "A." Government counsel made
representations to the district court as to what these symbols "A" and "O"
mean. See D.E. 3410 (March 10, 1997, transcript at 11). The defense was
informed that "A" means "admitted" and "O" means "overstay." However, it
appears to the defense that according to the State Department's own chart of
the meanings of certain symbols, "A" means "diplomatic visa" and "O" means
"extraordinary ability." See attached Exhibit "I."

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]


[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.

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.

B. Counsel for the Government Are Powerless to Effect Disclosure of
Discoverable Information from National Intelligence Agencies. 

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.



MARCH 25, 1997