USA v. Salman

1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
– against –
HALIMA SALMAN,
Defendant.
MEMORANDUM & ORDER
24-cr-00206 (NCM)
NATASHA C. MERLE, United States District Judge:
Defendant Halima Salman is charged in an indictment with receiving military-type
training from a foreign terrorist organization. See Indictment, ECF No. 13. On August 20,
2025, the government moved for a protective order pursuant to the Classified Information
Procedures Act (“CIPA”), 18 U.S.C. app. 3 § 4 and Federal Rule of Criminal Procedure
16(d)(1). See Notice of Filing of the Government’s Motion for a Protective Order, ECF No.
104. The government’s motion was filed ex parte and under seal. Defendant opposed the
ex parte nature of the government’s submission and filed a motion for the government’s
CIPA 4 submission to be released to defense counsel that holds the appropriate security
clearances. See Motion for Disclosure of Government’s CIPA 4 Filings, ECF No. 71. The
Court denied defendant’s request to release the information to defense counsel in an
Order dated October 27, 2025. See ECF No. 121. Defendant also filed an ex parte
submission to the Court detailing defendant’s theory of the case and potential defenses to
the charges to assist the Court in evaluating the government’s motion for a protective
order. See Notice of Ex Parte CIPA Filing, ECF No. 105. Defendant made a further
Case 1:24-cr-00206-NCM Document 129 Filed 11/17/25 Page 1 of 5 PageID #:
<pageID>

2
presentation on this submission in an ex parte conference with the Court on October 16,
2025. See ECF Minute Entry dated October 16, 2025. Shortly thereafter, the Court held
an ex parte conference with the government to further discuss its motion for a protective
order and to review the majority of the subject materials. See ECF Minute Entry dated
October 21, 2025.
Based on the Court’s review, and for the reasons set forth below, the government’s
motion for a protective order is granted.
LEGAL STANDARD
Pursuant to Section 4 of CIPA, “upon a sufficient showing,” a court
may authorize the United States to delete specified items of classified
information from documents to be made available to the defendant through
discovery under the Federal Rules of Criminal Procedure, to substitute a
summary of the information for such classified documents, or to substitute
a statement admitting relevant facts that the classified information would
tend to prove. The court may permit the United States to make a request for
such authorization in the form of a written statement to be inspected by the
court alone.
CIPA, 18 U.S.C. app. 3 § 4.
In evaluating the government’s request for a protective order pursuant to Section
4 of CIPA, the Court must proceed through the three-part test articulated in United States
v. Aref, 533 F.3d 72, 80 (2d Cir. 2008). 1 First, the Court must decide whether the
classified information the government possesses is discoverable. Id. If the information is
discoverable, the Court proceeds to the second step and determines whether the state-
secrets privilege applies to the discoverable information because “(1) there is a reasonable
danger that compulsion of the evidence will expose matters which, in the interest of
1 	Throughout this Order, the Court omits all internal quotation marks, footnotes,
and citations, and adopts all alterations, unless otherwise indicated.
Case 1:24-cr-00206-NCM Document 129 Filed 11/17/25 Page 2 of 5 PageID #:
<pageID>

3
national security, should not be divulged, and (2) the privilege is lodged by the head of
the department which has control over the matter, after actual personal consideration by
that officer.” Id. (quoting United States v. Reynolds, 345 U.S. 1, 8, 10 (1953)).
If the information is discoverable but privileged, the Court proceeds to the third
step to determine whether the information is “helpful or material to the defense, i.e.,
useful to counter the government’s case or to bolster a defense.” Id. To be “helpful or
material to the defense, evidence need not rise to the level that would trigger the
Government’s obligation under Brady v. Maryland, 373 U.S. 83 (1963), to disclose
exculpatory information.” Id. When considering whether information would be “helpful
or material,” courts may consider whether the information “goes to the innocence of the
defendant vel non, impeaches any evidence of guilt, or makes more or less probable any
fact at issue in establishing any defense to the charges.” United States v. Saipov, No. S1
17-cr-00722, 2019 WL 5558214, at *6 (S.D.N.Y. Oct. 29, 2019). Additionally, information
that would otherwise be helpful or material may not be subject to disclosure where the
information at issue is cumulative of other information already provided to the defendant
in the course of discovery. See United States v. Abu-Jihaad, 630 F.3d 102, 142 (2d Cir.
2010). If the classified material at issue contains material that is helpful or material to the
defense, the government’s state secrets privilege must “give way” to a “defendant’s right
to present a meaningful defense.” Abu-Jihaad, 630 F.3d at 141.
DISCUSSION
After reviewing the government’s submission and the majority of the underlying
classified material, and examining the case theory and potential defenses set forth by
defendant, the Court finds that the majority of the material at issue is not discoverable
pursuant to Rule 16 of the Federal Rules of Criminal Procedure, Brady, 373 U.S. 83 ,
Case 1:24-cr-00206-NCM Document 129 Filed 11/17/25 Page 3 of 5 PageID #:
<pageID>

4
Giglio v. United States, 405 U.S. 150 (1972), or statute. Thus, for the material that is not
discoverable, the Court need not proceed to consideration of the second or third steps of
the Aref test.
One piece of information, which is arguably discoverable, need not be disclosed
under the second and third steps of the Aref steps. The Court finds that the government
has properly invoked the state secrets privilege. The Court concludes that the government
has demonstrated there is a real danger that production of this material will expose
“matters which, in the interest of national security, should not be divulged.” Aref, 533
F.3d at 80. Additionally, the government’s submission includes declarations from each
appropriate head of the department with control over the material asserting the privilege.
See Abu-Jihaad, 630 F.3d at 140.
Finally, the material at issue is neither helpful nor material to the defense, nor is it
exculpatory or impeaching. The information at issue neither counters the government’s
claims, nor does it bolster any defense laid out in the defendant’s ex parte filing or
discussed with the defense in the ex parte conference. Accordingly, the Court finds that
the classified materials are not helpful or material to the defense, and thus disclosure of
the material is not essential to a fair determination of this case. Thus, the materials at
issue need not be disclosed.
Case 1:24-cr-00206-NCM Document 129 Filed 11/17/25 Page 4 of 5 PageID #:
<pageID>

5
CONCLUSION
For the reasons stated above, pursuant to Section 4 of CIPA, the Court grants the
government’s motion for a protective order in its entirety.
SO ORDERED.
/s/ Natasha C. Merle
NATASHA C. MERLE
United States District Judge
Dated: 	November 17, 2025
Brooklyn, New York
Case 1:24-cr-00206-NCM Document 129 Filed 11/17/25 Page 5 of 5 PageID #:
<pageID>