Full opinion text
JOSÉ A. CABRANES, Circuit Judge: TABLE OF CONTENTS 101 INTRODUCTION. 103 I. BACKGROUND. II. DISCUSSION. o DO A. Al-’Owhali’s Challenge to the Sufficiency of the Indictment. o CO B. El-Hage’s and Odeh’s Challenges to the Sufficiency of the Evidence l- to C. El-Hage’s Challenge to the District Court’s Application of the Classified Information Procedures Act. lO T — I D. El-Hage’s Motion To Sever His Trial from That of His Co-Defendants O CO E. The Admission of Certain Statements of El-Hage’s Co-Defendants, Co-Conspirators, and Other Third Parties. lO CO T-i F. El-Hage’s Motion for a New Trial Based on the Post-Conviction Disclosure of Recorded Statements of a Government Witness .... G. El-Hage’s Claim under the Cumulative Error Doctrine. H. El-Hage’s Challenge to the Sentence Imposed by the District Court LO III. CONCLUSION. .155 INTRODUCTION On May 29, 2001, a jury of the United States District Court for the Southern District of New York returned verdicts of guilt against defendants-appellants Mohamed Sadeek Odeh, Mohamed Rashed Daoud Al-’Owhali, and Wadih El-Hage as to numerous charges arising from their involvement in the August 7, 1998 bombings of the American Embassies in Nairobi, Kenya and Dar es Salaam, Tanzania (the “August 7 bombings”). The jury considered, but declined to impose, the death penalty on defendant-appellant Al-’Owhali. Between October 22 and October 24, 2001, the District Court (Leonard B. Sand, Judge) entered judgments of conviction against all three defendants and sentenced each of them to life imprisonment. Defendants are currently incarcerated and serving their sentences. All three now appeal their convictions, and El-Hage also appeals (1) the sentence imposed upon him by Judge Sand, (2) an order entered on November 2, 2005 by Judge Kevin Thomas Duffy, denying his motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure, and (3) an order entered on December 5, 2005 by Judge Duffy, denying El-Hage’s motion for reconsideration of the November 2 order. This criminal case presents issues of great importance, many of which are complex and novel; consequently, this case has been in the federal courts for a decade. This case commenced in late 1998, when defendants were indicted for their participation in the August 7, 1998 bombings of American Embassies in Kenya and Tanzania — acts of terrorism that resulted in the deaths of over 200 people. Jury selection began in early 2001, and trial commenced in February of that year. The trial lasted nearly four months and concluded on May 29, 2001 when the jury reached unanimous verdicts of defendants’ guilt. In October 2001, the District Court imposed a sentence of life imprisonment on all defendants, judgment was entered, and defendants then filed timely appeals. For the reasons described in greater detail below, as well as those set forth in In re Terrorist Bombings of U.S. Embassies in East Africa (Fourth Amendment Challenges), 552 F.3d 157 (2d Cir.2008), and In re Terrorist Bombings of U.S. Embassies in East Africa (Fifth Amendment Challenges), 552 F.3d 177 (2d Cir.2008), both filed today, we conclude that none of the issues raised on appeal has merit, with the exception of El-Hage’s challenge to his sentence on the basis of the District Court’s mandatory application of the United States Sentencing Guidelines based on then-binding Circuit precedent. We therefore affirm the judgments of conviction entered by the District Court against Al-’Owhali, El-Hage, and Odeh, and we remand the case to the District Court solely for the purpose of resentencing El-Hage. In reaching this conclusion, we hold that (1) the indictment under which Al-’Owhali proceeded to trial sufficiently alleged the “gateway considerations” rendering Al-’Owhali death-eligible pursuant to Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); (2) the evidence presented at trial by the government was sufficient to support (a) El-Hage’s conspiracy convictions and (b) Odeh’s convictions for the conspiracy and substantive offenses with which he was charged; (3) pursuant to the Classified Information Procedures Act, 18 U.S.C. app. 3, the District Court was authorized to restrict access to classified information only to those with a security clearance, and its decision to do so here did not violate El-Hage’s Sixth Amendment right to counsel, his Fifth and Sixth Amendment rights to present a defense, or his Fifth and Sixth Amendment rights to be present during a crucial stage in his trial; (4) the District Court did not err in denying El-Hage’s motion to sever his trial from that of his co-defendants; (5) the statements of defendants’ eo-eonspira-tors were properly admitted at trial; (6) defendants were not prejudiced by the government’s post-trial disclosure of transcripts of video-conferences with a key witness for the government; (7) because we perceive no error at trial, there is no merit in El-Hage’s suggestion that “cumulative error” deprived him of a fair trial; (8) the application of certain enhancements to El-Hage’s sentencing guidelines calculation was not error; and (9) insofar as El-Hage’s sentence resulted from the mandatory application of the United States Sentencing Guidelines, we remand his case for resentencing pursuant to United States v. Fagans, 406 F.3d 138 (2d Cir.2005). I. BACKGROUND We provide an outline of the factual and procedural history of this case below. Insofar as our evaluation of the claims raised by defendants requires additional detail from the record, we have provided that information in the relevant section of this opinion and in In re Terrorist Bombings of U.S. Embassies in East Africa (Fourth Amendment Challenges), 552 F.3d 157 (2d Cir.2008), and In re Terrorist Bombings of U.S. Embassies in East Africa (Fifth Amendment Challenges), 552 F.3d 177 (2d Cir.2008). A. Factual Overview In 1996, the United States Attorney for the Southern District of New York convened a grand jury to investigate the involvement of Osama Bin Laden and the al Qaeda organization in international terrorism directed at U.S. nationals, other “internationally protected persons,” and U.S. interests. See United States v. Bin Laden, 126 F.Supp.2d 264, 268-69 (S.D.N.Y.2000). Bin Laden had come to the attention of the U.S. government as early as 1992 when the U.S. Department of State determined that he had provided financing to Yemeni terrorists who were attempting to murder U.S. troops in Yemen. See The National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report 108-09 (2004). In 1993, the Central Intelligence Agency (“CIA”) determined that Bin Laden had “paid for the training of some Egyptian terrorists in Sudan,” id. at 108, and the State Department added Bin Laden to its list of known and suspected terrorists that same year, id. at 109, 83. By 1996, the CIA had linked Bin Laden to the al Qaeda organization. Id. at 109. U.S. intelligence experienced a “breakthrough” in the mid-1990s when a former aide to Bin Laden explained the “creation, character, direction, and intentions” of al Qaeda. Id. Around that time, U.S. intelligence officials also became aware that al Qaeda had a presence in Nairobi, Kenya; individuals associated with al Qaeda were using particular phone numbers to communicate with Bin Laden and with each other; and defendant El-Hage was one of those individuals. Bin Laden, 126 F.Supp.2d at 269. El-Hage, a naturalized U.S. citizen, was a close associate of Bin Laden and served as the head of the Nairobi al Qaeda cell during a period post-dating Bin Laden’s 1996 public declaration of holy war against America through the time of the embassy bombings. Tr. 1210-11,1251-52. He had financial and personnel responsibilities for Bin Laden’s enterprises. Tr. 258-59, 908-12. In February 1997, he conveyed a message from Bin Laden directing the Nairobi cell to prepare for military activity. Two months later, the Attorney General of the United States authorized officials to collect intelligence targeting El-Hage. In September 1997, El-Hage flew to the United States from Nairobi. Shortly thereafter, he was subpoenaed to testify before the grand jury investigating al Qaeda. After taking an oath to testify truthfully, El-Hage made numerous false statements about the last time he had seen Bin Laden, the nature of his contacts with various Bin Laden associates, and his awareness of Bin Laden’s plans to target American interests. He was arrested shortly after testifying. See United States v. Bin Laden, 91 F.Supp.2d 600, 606 (S.D.N.Y.2000). On August 7, 1998, at approximately 10:30 a.m., al Qaeda operatives detonated truck bombs outside the American Embassies in Nairobi, Kenya and Dar es Salaam, Tanzania, killing 224 people — including twelve Americans — and wounding thousands more. The day before the explosions in Kenya and Tanzania, defendant Odeh — an al Qae-da member based in Nairobi — took a late night flight from Nairobi to Karachi, Pakistan. Tr. 1685-87. Early the next morning, Pakistani officials arrested Odeh at the airport after determining that he lacked proper travel documents. Tr. 3584-86, 3794. Forensic analysis revealed explosives residue on his clothing and other items contained in his luggage. Tr. 3780-82. A search of Odeh’s Nairobi residence on or around August 8, 1998 revealed sketches of the area surrounding the American Embassy and the bomb placement site, and a budget sheet that included entries for “weapons and artiller-ies” as well as items needed for “training ... at the camp.” Supplemental App. 2284, 2286, 2291. On August 14, 1998, Pakistani authorities transported Odeh back to Kenya, where he was taken into custody by Kenyan officials. Tr. 3795. Between August 15 and August 27, Odeh was questioned in Kenya by American and Kenyan officials. Tr. 1617-18. During these sessions, he admitted, inter alia, to his membership in al Qaeda and his training in explosives. Tr. 1631, 1640, 1626-27. This evidence was produced at trial to establish that Odeh was the “technical adviser [for] the embassy bombings,” who instructed the Nairobi cell “about how best to build and place the bomb so as to cause maximum American fatalities.” Defendant Al-’Owhali, an al Qaeda operative who helped to place the bomb that exploded outside the American Embassy in Nairobi, left the truck shortly before the bomb detonated and was seen fleeing the scene by an eyewitness. Tr. 5137. On August 12, 1998, he was arrested in Kenya by Kenyan authorities acting in concert with U.S. law enforcement agents. See United States v. Bin Laden, 132 F.Supp.2d 168, 173 (S.D.N.Y.2001). Between August 12 and August 25, 1998, Al-’Owhali remained in Kenyan custody but was periodically interviewed by American agents. Id. at 174. On August 26, 1998, he was transported to the United States for further interviews. Id. at 178. B. Procedural History In an indictment filed in the District Court on September 21, 1998, El-Hage was charged with several counts of perjury and making false statements. See Bin Laden, 91 F.Supp.2d at 606. On October 7, 1998, the indictment charging him with these offenses was superseded by an indictment that added charges directly related to the August 7, 1998 embassy bombings and included Odeh and Al-’Owhali as additional defendants. Id. Several more superseding indictments were subsequently filed, bringing the total number of named defendants to fifteen. Id. The indictment on which defendants-appellants ultimately proceeded to trial (“the Indictment”) was filed on May 8, 2000. It charged all of the defendants with 267 discrete criminal offenses, including participation in conspiracies (1) to murder United States nationals, United States military personnel stationed in Somalia and Saudi Arabia, United States nationals and other “internationally protected persons” employed at the United States Embassies in Kenya and Tanzania; and (2) to conceal the activities of the conspiracy. See Bin Laden, 91 F.Supp.2d at 606; Bin Laden, 92 F.Supp.2d at 228. Certain of the defendants were also charged with murder and other substantive offenses, and El-Hage was also charged with perjury and making false statements. Id. Pursuant to the procedures set forth in the United States Attorneys’ Manual §§ 9-10.020 to 9-10.080, the government provided notice on June 28, 2000 that it was planning to seek the imposition of the death penalty against Al-’Owhali and another co-defendant. See United States v. Bin Laden, 109 F.Supp.2d 211, 213 (S.D.N.Y.2000). El-Hage and two of his co-defendants then moved to sever their trial from that of certain other co-defendants on the basis that (1) unlike the other co-defendants, they were not charged with any substantive offenses arising from the August 7 bombings, and (2) unlike Al-’Owhali, they were not on trial for capital crimes. See id. at 217, 221. The District Court denied this motion. Id. at 223. In October 2000, Al-’Owhali moved to challenge the sufficiency of the indictment with respect to those charges carrying a capital penalty, and this motion was also denied by the District Court. See United States v. Bin Laden, 126 F.Supp.2d 290, 296 & n. 6 (S.D.NY.2001). In addition, all three defendants-appellants filed motions to suppress certain evidence. El-Hage filed a motion to suppress evidence obtained from an August 1997 search of his residence in Nairobi, as well as the surveillance, from August 1996 to August 1997, of four telephone lines in Nairobi. This motion was denied by the District Court. See United States v. Bin Laden, 126 F.Supp.2d 264, 288 (S.D.N.Y.2000). Al-’Owhali filed a motion to suppress statements he made to U.S. agents during interviews conducted in- Kenya. The District Court, having initially granted this motion, subsequently reopened the matter upon motion of the government. See United States v. Bin Laden, 132 F.Supp.2d 168, 172 (S.D.N.Y.2001). After permitting the government to further develop the record, the District Court withdrew its previous decision and substituted an opinion granting Al-’Owhali’s motion as to statements made before August 22,1997, see id. at 192, 198, and denying the motion as to statements made from August 22 onwards, see id. at 194. In June 2000, Odeh’s attorneys submitted a motion to suppress statements that Odeh had made to Pakistani authorities in Pakistan and to U.S. authorities in Kenya. See United States v. Bin Laden, 132 F.Supp.2d 198, 201 (S.D.N.Y.2001). Several days later, however, Odeh notified the District Court that he wished to withdraw this motion on religious grounds. Id. at 201 & n. 3. The District Court, after holding an ex parte hearing with Odeh and his counsel, id. at 201, entered an order on August 1, 2000, deeming Odeh’s motion to have been withdrawn without prejudice. Id. Jury selection for the trial began on January 3, 2001. Id. On January 9, 2001, the District Court issued its initial — and later withdrawn — decision granting in full Al-’Owhali’s motion to suppress evidence. Id. at 201 & n. 5 Odeh’s attorneys then filed motions to suppress the statements Odeh made to Pakistani authorities in Pakistan and to U.S. authorities in Kenya. Id. The District Court denied the first motion (which renewed Odeh’s withdrawn June 2000 motion) as untimely, id. at 215, and the second motion on the merits, after an evidentiary hearing, see id. at 212-13. The jury trial began on February 5, 2001. After the close of the government’s case, defendants moved pursuant to Rule 29(a) of the Federal Rules of Criminal Procedure to dismiss the charges against them on the basis of.the insufficiency of the evidence. On April 12, 2001, the District Court granted in part the Rule 29(a) motions of Odeh and Al-’Owhali with respect to the charged substantive offenses arising from the American Embassy bombing in Tanzania (Counts 6 and 8). On May 29, 2001, the jury convicted defendants of all remaining counts. All three defendants-appellants were convicted of: conspiracy to murder United States nationals in violation of 18 U.S.C. § 2332(b) (Count 1); conspiracy to murder internationally protected persons, United States officers, and employees engaging in official duties in violation of 18 U.S.C. § 1117 (Count 2); and conspiracy to destroy buildings and property of the United States in violation of 18 U.S.C. § 844(n) (Count 4). In addition, Odeh and Al-’Owhali were convicted of conspiracy to use weapons of mass destruction against United States nationals and property overseas in violation of 18 U.S.C. § 2332a(a)(l) & (3) (Count 3). Odeh and Al-’Owhali were also convicted of the following substantive capital offenses: causing death by bombing the American Embassy in Nairobi in violation of 18 U.S.C. §§ 844(f)(3) (Count 5); use of a weapon of mass destruction for bombing the American Embassy in Nairobi in violation of 18 U.S.C. § 2332a(a)(l) & (3) with death resulting (Count 7); murder of 133 individuals in the course of an attack on a U.S. facility in Nairobi, in violation of 18 U.S.C. § 930(c) (Counts 9-221); murder of U.S. officers and employees in Nairobi in violation of 18 U.S.C. § 1114 (Counts 233-73); and murder of internationally protected persons in violation of 18 U.S.C. § 1116 (Counts 278-79). In addition, they were convicted of the following non-capital offenses: attempted murder of officers and employees of the American Embassy in Nairobi in violation of 18 U.S.C. §§ 1114 (Count 274); attempted murder of internationally protected persons in violation of 18 U.S.C. § 1116 (Count 280); using and carrying an explosive during commission of a felony in violation of 18 U.S.C. §§ 844(h) (Count 282); and using and carrying an explosive device during a crime of violence, in violation of 18 U.S.C. § 924(c) (Count 283). El-Hage was also convicted of multiple counts of perjury before a grand jury in violation of 18 U.S.C. § 1623 (Counts 285-302). The death-penalty phase of the trial then commenced. On June 12, 2001, the jury reported to the District Court that it declined to impose a sentence of death on Al-’Owhali, the only defendant-appellant against whom the death penalty was sought. Following the trial, El-Hage and Al-’Owhali moved for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure or, in the alternative, a new trial pursuant to Rule 33. The motions were denied. See United States v. Bin Laden, No. 98 Cr. 1023, 2001 WL 1160604 (S.D.N.Y. Oct. 2, 2001). In October 2001, the District Court imposed, inter alia, imprisonment for a term of life on all three defendants. Judgments of conviction were entered against El-Hage, Al-’Owhali, and Odeh on October 22, 2001; October 23, 2001; and October 24, 2001, respectively. Two years later, in October 2003, El-Hage moved again for a new trial pursuant to Rule 33 based, in part, on the government’s post-trial disclosure of videotapes depicting pretrial interviews with one of the government’s main witnesses. See United States v. Bin Laden, No. 98 Cr. 1023, 2005 WL 287404, at *8-9 (S.D.N.Y. Feb. 7, 2005). Al-’Owhali and Odeh joined in El-Hage’s motion. Id. at *1 n. 2. The District Court, after holding a series of evidentiary hearings on this matter, denied El-Hage’s motion in an opinion and order of November 2, 2005. United States v. Bin Laden, 397 F.Supp.2d 465 (S.D.N.Y.2005). El-Hage moved for reconsideration on November 16. The District Court denied this motion in an order entered on December 5, 2005. Defendants-appellants now appeal from the judgments of conviction and the post-trial orders. II. DISCUSSION In this opinion we consider defendants’ arguments that their convictions should be vacated because (1) the indictment was not sufficient to support a conviction of a capital offense; (2) insufficient evidence supported the convictions; (3) the District Court’s application of the Classified Information Procedures Act violated one defendant’s constitutional rights; (4) a severance motion should have been granted; (5) statements attributed to other members of the conspiracy should not have been admitted; (6) the government withheld exculpatory evidence; (7) cumulative error resulted in the deprivation of a fair trial; (8) certain sentencing enhancements were improper; and (9) the mandatory application of the Sentencing Guidelines warrants a remand of one defendant’s case for resen-tencing. For the reasons described below, we perceive no basis to disturb the judgments of conviction entered against each of the defendants. With respect to El-Hage, however, resentencing pursuant to United States v. Fagans, 406 F.3d 138 (2d Cir.2005), is warranted. A. Al-’Owhali’s Challenge to the Sufficiency of the Indictment Al-’Owhali argues for the reversal of his capital convictions because the government sought the death penalty against him for capital offenses based on an indictment that, Al-’Owhali contends, did not adequately allege the circumstances that rendered him eligible for the death penalty. Relying on the Fifth Amendment’s guarantee that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,” Al-’Owhali argues that he was “denied his right to be tried only on charges presented in the indictment returned by the grand jury, mandating reversal, regardless of prejudice,” see Al-’Owhali Br. 47, 51. The government, in response, contends that the Indictment sufficiently alleged the “gateway factors” rendering Al-’Owhali death-eligible. Appellee Br. 468. In the alternative, the government contends that, even if the Indictment was defective, Al-’Owhali’s conviction was free from prejudicial error because the jury declined to impose a sentence of death. Id. at 488. Nearly two months after the superseding indictment was filed, the government filed a “Notice of Intent” declaring its intention to seek the death penalty against Al-’Owhali. Al-’Owhali then moved to dismiss the government’s “Notice of Intent” on October 2, 2000, contending, inter alia, that the May 8 indictment did not adequately charge “the intent factors and statutory aggravating factors” rendering him death-eligible, as required under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). The District Court, in an opinion issued on January 2, 2001, rejected this claim upon concluding that “in federal capital cases, gateway mental states and aggravators are not required to be contained in the indictment.” United States v. Bin Laden, 126 F.Supp.2d 290, 296 n. 6 (S.D.N.Y.2001). At the conclusion of Al-’Owhali’s trial, the jury found that the government had proved beyond a reasonable doubt the factors necessary to render Al-’Owhali “death-eligible.” However, the jury declined to impose the death penalty upon him in favor of “life imprisonment without the possibility of release.” The District Court entered a judgment of conviction on October 24, 2001, sentencing Al-’Owhali principally to life imprisonment. On June 24, 2002, the Supreme Court held, in Ring v. Arizona, that an aggravating factor rendering a defendant death-eligible is “the functional equivalent of an element of a greater offense.” 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (quoting Apprendi, 530 U.S. at 494 n. 19, 120 S.Ct. 2348 (concluding that such elements must be found by a jury)). In light of the Supreme Court’s previous determination that “any fact ... increasing] the maximum penalty for a crime must be charged in an indictment,” Apprendi, 530 U.S. at 476, 120 S.Ct. 2348 (quoting Jones, 526 U.S. at 243 n. 6, 119 S.Ct. 1215), Ring establishes that, when the government seeks a sentence of death, the gateway mental factors and statutory aggravating factors rendering the defendant death-eligible must “be alleged in the indictment and found by a jury,” United States v. Quinones, 313 F.3d 49, 53 n. 1 (2d Cir.2002). Because Ring was decided while Al-’Owhali was awaiting direct review of his conviction, the rule set forth in Ring applies equally to Al-’Owhali’s case. See, e.g., Griffith v. Kentucky, 479 U.S. 314, 322-23, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (noting that, when the Supreme Court decides a new constitutional rule, “the integrity of judicial review requires that ... [this] rule [be applied] to all similar cases pending on direct review”). Accordingly, we turn to the question of whether the indictment by which Al-’Owhali was charged with capital offenses adequately set forth the requisite intent and the statutory aggravating factors rendering him death-eligible. To establish Al-’Owhali’s death-eligibility, the government was required to charge that Al-’Owhali had acted with the requisite intent under circumstances establishing the existence of one or more statutory aggravating factors. See 18 U.S.C. § 3591(a)(2); id. § 3593(e); see also Jones, 527 U.S. at 376-77, 119 S.Ct. 2090. The Federal Death Penalty Act, codified at 18 U.S.C. §§ 3591-3598, provides that a defendant charged with a homicide offense possessed the requisite mens rea for imposition of the death penalty if he: (A) intentionally killed the victim; (B) intentionally inflicted serious bodily injury that resulted in the death of the victim; (C) intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim died as a direct result of the act; or (D) intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and the victim died as a direct result of the act. 18 U.S.C. § 3591(a)(2). The statutory aggravating factors for a homicide offense include: causing death during the commission of a qualifying crime, id. § 3592(c)(1); “knowingly creatfing] a grave risk of death to [one] or more persons in addition to the victim of the offense,” id. § 3592(c)(5); “committing] the offense after substantial planning and premeditation to cause the death of a person or commit an act of terrorism,” id. § 3592(c)(9); and “intentionally killing] or attempting] to kill more than one person in a single criminal episode,” id. § 3592(c)(16). The government sought the death penalty against Al-’Owhali for the following offenses: causing death by bombing the American Embassy in Nairobi, in violation of 18 U.S.C. § 844(f) (Count 5); use of weapons of mass destruction against U.S. nationals overseas, in violation of 18 U.S.C. § 2332a(a)(l) & (3) (Count 7); murder in the course of an attack on a U.S. facility, in violation of 18 U.S.C. § 930(c) (Counts 9-221); murder of U.S. officers and employees, in violation of 18 U.S.C. § 1114 (Counts 233-73); and murder of internationally protected persons, in violation of 18 U.S.C. § 1116 (Counts 278-79). Count Five of the indictment charged Al-’Owhali with having “wilfully[ ] and knowingly ... detonated an explosive device that damaged and destroyed the United States Embassy in Nairobi, Kenya, and as a result of such conduct directly and proximately caused the deaths of at least 213 persons.” Count Seven of the indictment charged that he unlawfully, wilfully, [and] knowingly ... use[d] a weapon of mass destruction against nationals of the United States ... and against property that was owned, leased and used by the United Statesf;] ... to wit ... attacked the American [E]mbassy in Nairobi, Kenya, and employees of the American Government stationed at this [E]mbassy with a bomb, which use of such weapon of mass destruction resulted in death. These statements plainly allege the existence of at least two statutory aggravating factors: causing death during the commission of a qualifying crime, 18 U.S.C. § 3592(c)(1), and intentionally killing more than one person in a single criminal episode, id. § 3592(c)(16). They also clearly allege that Al-’Owhali committed the charged crimes with the requisite intent— namely, that he knowingly engaged in an act of violence with the knowledge that the act created a risk of death, id. § 3591(a)(2)(D). Cf. United States v. Temple, 447 F.3d 130, 137 (2d Cir.2006) (noting that “ ‘[w]illful’ repeatedly has been defined in the criminal context as intentional, purposeful, and voluntary, as distinguished from accidental or negligent”). Accordingly, we conclude that the indictment adequately set forth the factors that the government was required to prove as to Counts Five and Seven. The principal allegations supporting Counts Nine through 221 read as follows: [Al-’Owhali and certain co-defendants] wilfully, deliberately, and maliciously, ... with malice aforethought and with premeditation, did kill ... persons ... during the course of an attack on a federal facility involving the use of a dangerous weapon, to wit, the defendants detonated an explosive device that damaged and destroyed the United States Embassy in Nairobi, Kenya, and as a result of such conduct directly and proximately caused the deaths of [213 named persons.] Counts 233 through 273 charge that Al-’Owhali and certain co-defendants “wil-fully, deliberately, and maliciously, ... with malice aforethought and with premeditation, did murder officers and employees of the United States Government!;] ... [n]amely, the defendants caused the deaths of [41 named persons] by bombing the United States Embassy in Nairobi, Kenya.” Finally, Counts 278 and 279 allege that Al-’Owhali and certain other co-defendants “wilfully, deliberately, and maliciously, ... with malice aforethought and with premeditation, did murder representatives, officers, employees and agents of the United States Government[;] ... namely[,] ... caused the deaths of [2 named] persons by bombing the United States Embassy in Nairobi, Kenya.” Each of these allegations clearly sets forth the existence of at least three statutory aggravating factors — causing death during the commission of a qualifying crime, 18 U.S.C. § 3592(c)(1), committing an offense after substantial planning and premeditation to cause the death of a person or commit an act of terrorism, id. § 3592(c)(9), and intentionally killing more than one person in a single criminal episode, id. § 3592(c)(16). Each also clearly alleges that Al-’Owhali committed the charged crime with the requisite intent. See also Black’s Law Dictionary 977 (8th ed.2004) (noting that the concept of malice aforethought “encompass[es] ... (1) the intent to kill[ ] [and] (2) the intent to inflict grievous bodily harm”); 18 U.S.C. § 3591(a)(2)(A) (intent to kill) & (B) (intent to inflict bodily harm). We reject Al-’Owhali’s contention that the indictment must specifically cite the statutory provisions for the “gateway” factors, especially where, as here, the allegations set forth in the indictment were sufficient to satisfy the rule of Ring and Apprendi. Accordingly, we conclude that, with respect to the capital charges, the indictment adequately set forth the factors that the government was required to prove. B. El-Hage’s and Odeh’s Challenges to the Sufficiency of the Evidence El-Hage and Odeh challenge the sufficiency of the government’s evidence against them. El-Hage contends that the government did not present sufficient evidence to support his conspiracy convictions. Odeh challenges the sufficiency of the evidence with respect to all of his crimes of conviction. A defendant challenging the sufficiency of the evidence supporting his criminal conviction bears “‘a heavy burden.’ ” United States v. Tran, 519 F.3d 98, 105 (2d Cir.2008) (quoting United States v. Gaskin, 864 F.3d 438, 459 (2d Cir.2004)). When presented with a sufficiency-of-the-evidence challenge, we must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also United States v. Carlo, 507 F.3d 799, 801 (2d Cir.2007) (“On an appeal challenging the sufficiency of the evidence to support a conviction, we view the evidence in the light most favorable to the government, drawing all reasonable inferences in its favor.”); Yousef, 327 F.3d at 134 (noting that we “will not disturb [a jury] verdict if there is substantial evidence to support it”). Accordingly, [a] conviction may be sustained on the basis of the testimony of a single [witness], so long as that testimony is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt. Any lack of corroboration goes to the weight of the evidence, not to its sufficiency, and a challenge to the weight of the evidence is a matter for argument to the jury, not a ground for reversal on appeal. United States v. Gordon, 987 F.2d 902, 906 (2d Cir.1993) (internal citations omitted). We now review each defendant’s challenge in turn. 1. El-Hage Following trial, El-Hage moved for a judgment of acquittal on all counts on which he was convicted, pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure. The District Court rejected El-Hage’s motion in all respects. See United States v. Bin Laden, No. 98 Cr. 1023, 2001 WL 1160604, at *1 (S.D.N.Y. Oct. 2, 2001). On appeal, El-Hage limits his sufficiency challenges to the conspiracy convictions, alleging that the government failed to present any evidence establishing that he knew about these conspiracies, much less intended to participate in them. Specifically, he argues that his alleged perjury cannot establish that he was a member of the charged conspiracies. We review the District Court’s denial of a Rule 29(c) motion de novo. See, e.g., United States v. Ebbers, 458 F.3d 110, 125 (2d Cir.2006). To establish the existence of a criminal conspiracy, the government must prove that the conspirators agreed “on the ‘essence of the underlying illegal objective[s],’ and the ‘kind of criminal conduct ... in fact contemplated.’ ” United States v. Salameh, 152 F.3d 88, 151 (2d Cir.1998) (quoting United States v. Stavroulakis, 952 F.2d 686, 690 (2d Cir.1992) (citations omitted)). “[T]he government need not present evidence of an explicit agreement; proof of a tacit understanding will suffice.” Gordon, 987 F.2d at 906 (internal quotation marks omitted). “[T]he evidence necessary to link a particular defendant to [a criminal] scheme ... may be circumstantial in nature.” Gaskin, 364 F.3d at 460. “A defendant’s knowing and willing participation in a conspiracy may be inferred from ... her presence at critical stages of the conspiracy that could not be explained by happenstance, or a lack of surprise when discussing the conspiracy with others.” United States v. Aleskerova, 300 F.3d 286, 293 (2d Cir.2002) (internal citations omitted). It may also be established by “evidence that the defendant participated in conversations directly related to the substance of the conspiracy!;] possessed items important to the conspiracy,” id., or engaged in acts “exhibiting] a consciousness of guilt, such as [making] false exculpatory statements,” Gordon, 987 F.2d at 907 (citations omitted). We have observed that “[w]here conspirators are charged with pursuing multiple criminal objectives, the government is not required to prove that the defendant agreed to all of the objectives. Rather, the government must show that the defendant shared ‘some knowledge of the conspiracy’s unlawful aims and objectives.’ ” Salameh, 152 F.3d at 151 (quoting United States v. Heinemann, 801 F.2d 86, 93 (2d Cir.1986)) (internal brackets and citation omitted); accord Stavroulakis, 952 F.2d at 690 (“The policies underlying conspiratorial liability could easily be thwarted by the careful compartmentalization of information, and ‘conspirators would go free by their very ingenuity,’ if it were required that they agree on all details of the scheme.” (quoting Blumenthal v. United States, 332 U.S. 539, 557, 68 S.Ct. 248, 92 L.Ed. 154 (1947))). At trial, the government offered evidence — including physical documents and testimony from other al Qaeda members — to establish that El-Hage: (1) had been present at private meetings where Bin Laden and other al Qaeda officials discussed their program of attacks against the United States, Tr. 259-70, 280-81, 517-18, 960-62; (2) served as a financial controller or “paymaster” of sorts for Bin Laden’s enterprises — a position that involved reviewing al Qaeda personnel files to ascertain which Bin Laden employees were to receive extra pay for their work pursuing activities on al Qaeda’s behalf, Tr. 258-59, 908-12; (3) played a key role in procuring fraudulent travel documents for al Qaeda members and associates, Tr. 214-15; Supplemental App. 2255, 2260, 2261, 2262, 2268; (4) was a member of the Nairobi al Qaeda cell during a time when al Qaeda members were traveling to Nairobi to conduct surveillance of the American Embassy, train in al Qaeda-run military camps, and plan the attack on the Embassy, Tr. 1258-63, 1193-1212; (5) served as the head of the Nairobi al Qaeda cell during a period post-dating Bin Laden’s 1996 public declaration of holy war against the United States, Tr. 1210, 1251-52; (6) traveled to Afghanistan in February 1997 to meet with Bin Laden and Mohamed Atef, al Qaeda’s military commander, and returned to Nairobi -with a message from Bin Laden directing the Nairobi cell to prepare for military activity, Supplemental App. 1997-2005; and (7) appeared before a federal grand jury in September. 1997, one month after he met again with Bin Laden and Atef, Supplemental App. 1974, and testified falsely as to al Qaeda’s agenda as well as to the nature and extent of his contacts with Bin Laden and Atef, Tr. 807-10. Based on the government’s evidence, it is clear that a rational fact-finder could have concluded that El-Hage (1) knew about the aims and objectives of the charged criminal conspiracies, (2) agreed to the essence of these objectives, and (3) performed acts, including committing perjury, intended to further these objectives. Accordingly, we see no basis to question, much less overturn, El-Hage’s convictions for the criminal conspiracies charged in Counts One, Two, and Four of the Indictment. 2. Odeh Like El-Hage, Odeh was convicted of the criminal conspiracies charged in Counts One, Two, and Four of the Indictment as well as ten other crimes. On appeal, Odeh contends that the government failed to present any evidence supporting his involvement in any of these offenses. At trial, the government offered evidence that, prior to joining al Qaeda in 1992, Odeh attended an Afghani training camp where he was taught to use weapons and small explosives. Tr. 1626-32. Odeh’s proficiency with these devices was such that al Qaeda subsequently paid him to train al Qaeda members and allies of the organization in their violent campaign against the United States. Tr. 1136-37, 1644-45. Odeh was also a member of the Nairobi cell throughout the period that members of the cell were planning the attack on the American Embassy in Nairobi. Tr. 1182-83, 1643-45, 1656-60. The heart of the government’s case against Odeh, however, consisted of sketches discovered during a search of Odeh’s apartment the. day after the August 7, 1998 bombings. Supplemental App. 1975-76. The government argued to the jury that these sketches represented the area surrounding the American Embassy, including a depiction of an exploding truck bomb at the detonation site. Tr. 5495-5501. The government also introduced Odeh’s post-arrest statement, Tr. 5497, as well as .evidence that the explosive residue found on his clothing at the time of his arrest matched the materials used to make the Nairobi bomb, Tr. 5488-92. On appeal, Odeh contends that the sketches are at best “ambiguous.” Odeh Br. 36. He also contends that, “even if those items were related to the bombing,” their presence in his apartment “do[es] not prove that he actually aided or abetted the bombing.” Id. at 36-37. When evaluating whether the government’s evidence is sufficient to support a conviction, we “review the separate pieces of evidence not in isolation but in conjunction,” United States v. Rigas, 490 F.3d 208, 230 (2d Cir.2007) (internal quotation marks, brackets, and ellipses omitted), drawing “all reasonable inferences in the light most favorable to ... the jury’s verdict,” id. Viewed in this light, the record reveals substantial evidence supporting the government’s theory that Odeh was guilty of the offenses charged in the indictment by virtue of his role as a “technical advisor ... in the operation to bomb the American Embassy.” Tr. 5501. Odeh’s argument that the sketches are too ambiguous to support the jury’s verdict does not withstand scrutiny. At trial, the government displayed both sketches in side-by-side comparisons to diagrams of areas surrounding the American Embassy. Supplemental App. 1975-76; Tr. 5495-5501. The jury was thereby permitted to determine for itself whether the sketches depicted those areas, did not depict those areas, or were too ambiguous to reach a conclusion one way or another. We see nothing unreasonable in the jury’s implicit determination that the sketches did, indeed, depict the area surrounding the American Embassy, and we therefore perceive no basis in the record to disturb the jury’s determination. Similarly, Odeh’s claims that the government did not adequately connect him with the sketches are unpersuasive in light of the government’s introduction of post-arrest statements in which he expressed “anger and disappoint[ment]” that the truck bomb that blew up the American Embassy in Nairobi had been placed incorrectly — that is, not in the manner depicted in the sketch — resulting in diversion of the blast force away from the Embassy. Tr. 5498; Supplemental App. 1823. For these reasons, we conclude that the evidence was sufficient to support El-Hage’s conspiracy convictions and Odeh’s convictions for the conspiracy and substantive offenses with which he was charged. C. EI-Hage’s Challenge to the District Court’s Application of thé Classified Information Procedures Act El-Hage contends that the protective order entered by the District Court pursuant to the Classified Information Procedures Act (“CIPA”), Pub.L. No. 96-456, 94 Stat. 2025 (1980), codified at 18 U.S.C. app. 3, violated his (1) Sixth Amendment right to counsel, (2) Sixth Amendment right to confront the witnesses and evidence against him, (3) Fifth Amendment right to testify at trial, and (4) Fifth Amendment and Sixth Amendment rights to present a defense. El-Hage also contends that his exclusion from hearings at which classified material would be discussed violated his (5) Fifth Amendment and Sixth Amendment rights to be present at a crucial stage in his trial. As described in greater detail below, each of these contentions is without merit. 1. An Overview of CIPA CIPA establishes rules for the management of criminal cases involving classified information. Its animating purpose is “to harmonize a [criminal] defendant’s right to obtain and present exculpatory material,” United States v. Pappas, 94 F.3d 795, 799 (2d Cir.1996) (internal quotation marks omitted), with the government’s need “ ‘to withhold information from discovery when disclosure would be inimical to national security,’ ” United States v. Aref, 533 F.3d 72, 79 (2d Cir.2008) (quoting Zuckerbraun v. Gen. Dynamics Corp., 935 F.2d 544, 546 (2d Cir.1991)); see also id. at 78 (explaining that the government’s ability to withhold classified information “most likely” derives from “the common-law privilege against disclosure of state secrets”). Section three of CIPA requires district courts to enter, “[u]pon motion of the United States,” a protective order prohibiting “the disclosure of any classified information disclosed by the United States” to a criminal defendant, 18 U.S.C. app. 3, § 3. Section four provides that, if the discovery to be provided to the defense pursuant to the Federal Rules of Criminal Procedure includes classified information, the district court may, “upon a sufficient showing, ... authorize the United States to delete specified items of classified information^] ... to substitute a summary of the information!,] • • • or to substitute a statement admitting relevant facts that the classified information would tend to prove.” Id. § 4. Section five requires a defendant to give pretrial notice to the government and the court if he “reasonably expects to disclose or to cause the disclosure of classified information ... in connection with any trial or pretrial proceeding involving [his] criminal prosecution.” Id. § 5(a). Section six requires district courts “to make all determinations concerning the use, relevance, or admissibility of classified information that would otherwise be made during the trial or pretrial proceeding” by means of a hearing that “shall be held in camera if the Attorney General certifies to the court in such petition that a public proceeding may result in the disclosure of classified information.” Id. § 6(a). Section six also provides that, before the district court holds such a hearing, the government must give the defendant “notice of the classified information that is at issue,” id. § 6(b)(1), as well as “such details as to the portion of the indictment or information at issue in the hearing as are needed to give the defendant fair notice to prepare for the hearing,” id. § 6(b)(2). If a district court authorizes “the disclosure of specific classified information,” the government may move to substitute “for such classified information ... a statement admitting relevant facts that the specific classified information would tend to prove ... or a summary of the specific classified information.” Id. § 6(c)(1). A district court must grant the government’s motion for a protective order “if it finds that the statement or summary will provide the defendant with substantially the same ability to make his defense as would disclosure of the specific classified information.” Id. 2. The District Court’s Application of CIPA to Confidential Information at Issue in the Prosecution of El-Hage and His Co-Defendants In the spring of 1999, the government moved in the District Court for the entry of a protective order under CIPA to restrict access to classified information to individuals who qualified for a security clearance under regulations promulgated by the U.S. Department of Justice (“DOJ”). Defendants filed a motion challenging the District Court’s authority to impose a mandatory clearance requirement and objecting to the order that the government proposed. See United States v. Bin Laden, 58 F.Supp.2d 113, 115-16 (S.D.N.Y.1999). The District Court denied defendants’ motion in an opinion of June 30, 1999. Id. at 124. As an initial matter, the District Court observed that “CIPA and the accompanying Security Procedures [promulgated by Chief Justice Burger] create a system by which the trial court has wide latitude to impose reasonable restrictions likely to prevent the unauthorized disclosure of classified information,” id. at 117, such as the imposition of a mandatory clearance requirement, see id. (noting that “the legislative history of CIPA ... indicates that although neither Congress nor the Chief Justice sought to impose a mandatory clearance requirement in all cases involving classified information, they did not attempt to foreclose resort to such a requirement in all circumstances”). The District Court then determined that it was appropriate to require “every person who comes into contact with classified information in this litigation [to] undergo some objective evaluation” of their ability to avoid unauthorized disclosure of such information. The District Court based this decision on (1) “the exceptional facts alleged in the indictment,” id. at 121; (2) the fact that “the [g]overnment’s investigation is ongoing, which increases the possibility that unauthorized disclosures might place additional lives in danger,” id.', and (3) the existence of other “special circumstances warranting particular control over the flow of classified information,” id. (noting the government’s allegation “that the [defendants are part of a conspiracy whose members have previously gained access to un-filed court documents and forwarded those documents to other members of the conspiracy”). On July 29, 1999, the District Court entered a protective order providing, in relevant part, that “[n]o defendant, counsel for a defendant, employee of a counsel for a defendant, defense witness, or Courtroom personnel ... shall have access to any classified information involved in this case unless that person shall first have ... received the necessary security clearance” pursuant to the regulations set forth by the DOJ. United States v. Bin Laden, No. 98 CR 1023, dkt. no. 78 at ¶ 5 (S.D.N.Y. July 29, 1999). El-Hage’s defense counsel received security clearances in due course. El-Hage himself did not. “The practical result of [the July 29, 1999] order” was, therefore, that El-Hage’s defense attorneys were able to “review a category of classified documents that they [could] not share with their client! ].” See United States v. Bin Laden, No. 98 CR 1023, 2001 WL 66393, at !l!2 (S.D.N.Y. Jan. 25 2001). On July 14, 2000, El-Hage’s attorneys notified the District Court, pursuant to section five of CIPA, that they anticipated a need to disclose' — to their client or to the jury — certain aspects of the classified material provided to them by the government. Also on July 14, 2000, El-Hage’s counsel filed, under seal, a motion asking the District Court to declare CIPA “unconstitutional as applied in this case” because, inter alia, the construction of the statute adopted by the District Court in its protective order of July 29, 1999 prevented El-Hage from reviewing any classified material provided by the government to his counsel. Appellants’ App. 957. The government objected to the disclosure of any classified information to El-Hage and opposed El-Hage’s challenge to the constitutionality of CIPA. In doing so, the government noted that much of the material originally provided to El-Hage’s counsel in classified form had already been declassified, allowing El-Hage’s counsel to share those items with El-Hage The government agreed that the treatment of the remaining classified items should be resolved at a pretrial hearing held by the District Court pursuant to CIPA section six. The District Court held five in camera CIPA hearings in February 2001. Portions of the February 6, 2001 hearing were conducted ex parte; the others were attended by counsel for both sides. El-Hage’s defense attorneys, in the presence of the government, described in detail the classified material that they anticipated disclosing. The District Court then excused El-Hage’s counsel in order to inquire into the government’s reasons for refusing to declassify these items. After the government completed its presentation and was excused, the District Court recalled El-Hage’s attorneys, inquiring, in the absence of government counsel, into the use that El-Hage’s counsel planned to make of the classified information at issue. Having established that El-Hage’s attorneys wished to use the classified material for cross-examination of a government witness, the District Court suggested that the parties could work together to produce a paraphrased version of the relevant portions. The District Court then recalled the government in order to discuss the merits of this proposal with counsel on both sides. On February 8, 2001, the District Court held a second in camera hearing to explore the parties’ progress in resolving the disclosure issue raised by El-Hage’s counsel. At that hearing, the District Court considered the arguments of the parties and then concluded that the stipulation being offered by the government would serve El-Hage’s needs better than the classified information to which he sought access because (1) effective use of the classified information by El-Hage’s counsel “[did] not turn on the nuances or the specific language of [the classified document]” and (2) the stipulation — unlike the classified document — would definitively resolve the factual matters at issue. Hearing Tr. of Feb. 8, 2001, at 28,18. On February 13, 2001, the District Court held an in camera hearing on issues relating to a second item of classified information. El-Hage’s counsel explained that they wished to use the classified information to elicit witness testimony that would establish El-Hage’s state of mind at the time of a particular transaction; upon questioning by the District Court, however, counsel for El-Hage conceded that El-Hage was never actually aware of the facts that counsel was seeking to elicit from the witness. The government, meanwhile, offered to stipulate to the facts in question, thereby obviating the need for the witness testimony. The District Court found that (1) El-Hage’s counsel was unable to establish how the testimony that counsel was trying to elicit through the use of the classified information was relevant to the defense’s case and (2) even assuming that the testimony conveyed facts relevant to the defense, the stipulation being offered by the government was stronger evidence of the facts than the testimony that El-Hage’s counsel was trying to elicit. Hearing Tr. of Feb. 13, 2001, at 22, 24. Accordingly, at an in camera hearing held the following day, the District Court denied El-Hage’s request for disclosure to him of the classified information that the government had already provided to his counsel. Hearing Tr. of Feb. 14, 2001, at 9. The District Court held two further in camera hearings on February 21, 2001. At the first hearing, the District Court established — to the satisfaction of El-Hage’s counsel — that El-Hage’s need for a third item of classified material could be adequately met by the government’s agreement to stipulate to the facts for which the defense planned to use the material. 1 Hearing Tr. of Feb. 21, 2001, at 7. At the second hearing, the District Court considered El-Hage’s request for discovery of a fourth item of classified information. After giving El-Hage’s counsel the opportunity to set forth their theory on the relevance of this information, the District Court explained that — based upon its review of an ex parte submission made by the government — it could represent with confidence that the classified information did not have the significance claimed by counsel. 2 Hearing Tr. of Feb. 21, 2001, at 5, 7. Accordingly, the District Court declined to provide El-Hage’s counsel with access to the classified information at issue. The District Court denied El-Hage’s “as applied” challenge to the constitutionality of CIPA in an opinion issued on January 25, 2001. See Bin Laden, 2001 WL 66393, at *9. First, the District Court found that El-Hage had not identified any concrete harms arising from the entry of the protective order. As the District Court noted, one of the items El-Hage sought to review had been declassified already, while another was an item that neither party sought to introduce into evidence See id. at *4. The District Court also observed that, because El-Hage’s attorneys had “seen the classified information at issue, it [was] not clear why” the provisions of the protective order should have a detrimental effect on El-Hage’s ability to present a defense. Id. at *8. Second, the District Court concluded that El-Hage’s own exclusion from any hearings where classified information was discussed did not violate El-Hage’s Sixth Amendment right to be present because “questions ... regarding the protection of classified information are questions of law which may be resolved outside the presence of the defendant.” Id. at *7; see also id. at *5 (“The suggestion that the [defendant ‘might’ contribute to the predominantly legal process of designating relevant evidence is not sufficient to warrant a finding that CIPA is being applied to deprive the Defendant of his constitutional right to confront witnesses.”). Finally, the District Court rejected El-Hage’s invitation to invalidate section five of CIPA, concluding instead that CIPA’s pretrial notice provision was no different from the requirement to provide pretrial disclosure of “the intention to offer an alibi defense, an insanity defense, a public authority defense, or certain medical tests or tangible objects.” Bin Laden, 2001 WL 66393 at *8. On appeal, El-Hage renews his constitutional challenges to the disclosure limitations imposed by the District Court pursuant to sections three and six of CIPA. El-Hage Br. 261, 264. He does not renew his challenge to the constitutionality of the pretrial notice requirement set forth in section five of CIPA. Id. at 235-52. 3. CIPA Authorized the District Court to Permit Only Individuals with Security Clearances to View Classified Information El-Hage challenges the District Court’s conclusion that the most appropriate way “to minimize the risk of the unauthorized disclosure of classified information,” Bin Laden, 58 F.Supp.2d at 121, was to limit access to classified material to individuals who could obtain security clearance — namely, United States citizens whose “personal and professional history affirmatively indicate[ ] loyalty to the United States, strength of character, trustworthiness, honesty, reliability, discretion, and sound judgment, as well as freedom from conflicting allegiances and potential for coercion, and willingness and ability to abide by regulations governing the use, handling, and protection of classified information.” 28 C.F.R. § 17.41(b) (emphasis added). By conditioning access to classified information on a security clearance requirement that El-Hage could not meet, the protective order entered by the District Court on July 29, 1999 effectively barred El-Hage from personally reviewing the classified material produced by the government. El-Hage claims that these limitations deprived him of access to discoverable information to which he was entitled. CIPA imposes upon district courts a mandatory duty to guard against the unauthorized “disclosure of any classified material disclosed by the United States to any defendant in any criminal case.” 18 U.S.C. appendix 3 at § 3; see id. (stating that “[u]pon motion of the United States, the court shall issue an order to protect against the disclosure of any classified information disclosed by the United States to any defendant in any criminal case” (emphasis added)); id. § 6(a) (providing that “if the Attorney General certifies to the court” that a public hearing on disputes about the “use, relevance, or admissibility of classified information ... may result in the disclosure of classified information,” the district court “shall ” hold the hearing in camera (emphasis added)); id. § 6(c) (providing that when a district court authorizes “the disclosure of specific classified information” and the government moves to substitute for the classified information a “[stipulation] or summary that would provide the defendant with substantially the same ability to make his defense as would disclosure of the specific classified information,” the district court “shall grant” the government’s motion (emphasis added)); id. § 6(d) (“If at the close of an in camera hearing[,] ... the court determines that the classified information at issue may not be disclosed or elicited at the trial or pretrial proceeding, the record of such in camera hearing shall be sealed .... ” (emphasis added)). CIPA’s provisions on discovery, which complement those of R