United States v. Zacarias Moussaoui, A/K/A Shaqil, A/K/A Abu Khalid Al Sahrawi, Center for National Security Studies, Amicus Supporting

The Government appeals a series of rulings by the district court granting Appellee Zacarias Moussaoui access to certain individuals1 ("the enemy combatant witnesses" or "the witnesses") for the purpose of deposing them pursuant to Federal Rule of Criminal Procedure 15; rejecting the Government's proposed substitutions for the depositions; and imposing sanctions for the Government's refusal to produce the witnesses. We are presented with questions of grave significance—questions that test the commitment of this nation to an independent judiciary, to the constitutional guarantee of a fair trial even to one accused of the most heinous of crimes, and to the protection of our citizens against additional terrorist attacks. These questions do not admit of easy answers.

For the reasons set forth below, we reject the Government's claim that the district court exceeded its authority in granting Moussaoui access to the witnesses. We affirm the conclusion of the district court that the enemy combatant witnesses could provide material, favorable testimony on Moussaoui's behalf, and we agree with the district court that the Government's proposed substitutions for the witnesses' deposition testimony are inadequate. However, we reverse the district court insofar as it held that it is not possible to craft adequate substitutions, and we remand with instructions for the district court and the parties to craft substitutions under certain guidelines. Finally, we vacate the order imposing sanctions on the Government.

On September 11, 2001, members of the terrorist organization al Qaeda2 hijacked three passenger aircraft and crashed them into the Pentagon and the World Trade Center towers in New York. A fourth plane, apparently destined for the United States Capitol, crashed in Pennsylvania after passengers wrested control from the hijackers. The attacks resulted in the deaths of over 3000 men, women, and children.

Moussaoui was arrested for an immigration violation in mid-August 2001 and, in December of that year, was indicted on several charges of conspiracy related to the September 11 attacks. In July 2002, the Government filed a superceding indictment charging Moussaoui with six offenses: conspiracy to commit acts of terrorism transcending national boundaries, see 18 U.S.C.A. § 2332b(a)(2), (c) (West 2000); conspiracy to commit aircraft piracy, see 49 U.S.C.A. § 46502(a)(1)(A), (a)(2)(B) (West 1997); conspiracy to destroy aircraft, see 18 U.S.C.A. §§ 32(a)(7), 34 (West 2000); conspiracy to use weapons of mass destruction, see 18 U.S.C.A. § 2332a(a) (West 2000 & Supp.2003); conspiracy to murder United States employees, see 18 U.S.C.A. §§ 1114, 1117 (West 2000 & Supp.2003), and conspiracy to destroy property, see 18 U.S.C.A. § 844(f), (i), (n) (West 2000 & Supp.2003). The Government seeks the death penalty on the first four of these charges.

According to the allegations of the indictment, Moussaoui was present at an al Qaeda training camp in April 1998. The indictment further alleges that Moussaoui arrived in the United States in late February 2001 and thereafter began flight lessons in Norman, Oklahoma. Other allegations in the indictment highlight similarities between Moussaoui's conduct and the conduct of the September 11 hijackers. Each of the four death-eligible counts of the indictment alleges that the actions of Moussaoui and his coconspirators "result[ed] in the deaths of thousands of persons on September 11, 2001." E.g., J.A. (03-4162) 108.3

Simultaneously with its prosecution of Moussaoui, the Executive Branch has been engaged in ongoing efforts to eradicate al Qaeda and to capture its leader, Usama bin Laden. These efforts have resulted in the capture of numerous members of al Qaeda, including the witnesses at issue here: [Redacted] ("Witness A"), [Redacted] ("Witness B"), [Redacted] and [Redacted] ("Witness C"), [Redacted]

Witness A was captured [Redacted]. Shortly thereafter, Moussaoui (who at that time was representing himself in the district court) moved for access to Witness A, asserting that the witness would be an important part of his defense. Moussaoui's motion was supported by then-standby counsel, who filed a motion seeking pretrial access to Witness A and a writ of habeas corpus ad testificandum to obtain Witness A's trial testimony. The Government opposed this request.4

The district court conducted a hearing, after which it issued an oral ruling granting access to Witness A ("the January 30 order"). The court subsequently issued a memorandum opinion explaining its ruling in greater detail. The district court concluded that Witness A could offer material testimony in Moussaoui's defense; in particular, the court determined that Witness A had extensive knowledge of the September 11 plot and that his testimony would support Moussaoui's claim that he was not involved in the attacks. At a minimum, the court observed, Witness A's testimony could support an argument that Moussaoui should not receive the death penalty if convicted.

The district court acknowledged that Witness A is a national security asset and therefore denied standby counsel's request for unmonitored pretrial access and declined to order his production at trial. The court also determined, however, that the Government's national security interest must yield to Moussaoui's right to a fair trial. Accordingly, the court ordered that Witness A's testimony be preserved by means of a Rule 15 deposition. See Fed.R.Crim.P. 15(a)(1) (providing that court may order deposition of witness to preserve testimony for trial "because of exceptional circumstances and in the interest of justice"). In an attempt to minimize the effect of its order on national security, the district court ordered that certain precautions be taken. Specifically, the court directed that the deposition would be taken by remote video, with Witness A in an undisclosed location and Moussaoui, standby counsel, and counsel for the Government in the presence of the district court, [Redacted]

While the Government's appeal of the January 30 order was pending before this court, we remanded for the purpose of allowing the district court to determine whether any substitution existed that would place Moussaoui in substantially the same position as would a deposition. On remand, both the Government and standby counsel offered proposed substitutions for Witness A's deposition testimony.5 The district court rejected the Government's proposed substitutions, reasoning that (a) the information in the [Redacted] reports was unreliable, and (b) the substitutions themselves were flawed in numerous respects. Believing itself bound to consider only the Government's proposed substitutions, the district court did not review the substitutions offered by standby counsel.

The proceedings on remand complete, we conducted oral argument on June 3, 2003. Shortly thereafter, we dismissed the appeal as interlocutory. See United States v. Moussaoui (Moussaoui I), 333 F.3d 509, 517 (4th Cir.2003). Upon receiving the mandate of this court, the district court entered an order directing the Government to inform the court whether it would comply with the January 30 order. On July 14, 2003, the Government filed a pleading indicating that it would refuse to provide access to Witness A for the purpose of conducting a deposition.

On August 29, the district court entered an order ("the August 29 order") granting access to Witnesses B and C for purposes of conducting Rule 15 depositions of those witnesses. The order imposed the same conditions as those applicable to Witness A. The court also directed the Government to file any proposed substitutions for the witnesses' testimony by September 5, and it directed standby counsel to file any response to the substitutions by September 12.

On September 8, the district court rejected the Government's proposed substitutions without requiring any response from the defense. The court stated that the Government's proposed substitutions for the deposition testimony of Witnesses B and C failed for the same reasons as the Government's proposed substitutions for the deposition testimony of Witness A. Following the rejection of its proposed substitutions, the Government informed the court that it would not comply with the August 29 order.

The district court then directed the parties to submit briefs concerning the appropriate sanction to be imposed for the Government's refusal to comply with the January 30 and August 29 orders. Standby counsel sought dismissal but alternatively asked the district court to dismiss the death notice. The Government filed a responsive pleading stating that "[t]o present the issue most efficiently to the Court of Appeals, and because [the Classified Information Procedures Act] prescribes dismissal as the presumptive action a district court must take in these circumstances, we do not oppose standby counsel's suggestion that the appropriate action in this case is to dismiss the indictment." J.A.C. (03-4792) 487; id. (asserting that "dismissal of the indictment ... is the surest route for ensuring that the questions at issue here can promptly be presented to the Fourth Circuit").

Noting that "[t]he unprecedented investment of both human and material resources in this case mandates the careful consideration of some sanction other than dismissal," J.A. (03-4792) 319, the district court rejected the parties' claims that the indictment should be dismissed. Rather, the court dismissed the death notice, reasoning that Moussaoui had adequately demonstrated that the witnesses could provide testimony that, if believed, might preclude a jury from finding Moussaoui eligible for the death penalty. Further, because proof of Moussaoui's involvement in the September 11 attacks was not necessary to a conviction, and because the witnesses' testimony, if believed, could exonerate Moussaoui of involvement in those attacks, the district court prohibited the Government "from making any argument, or offering any evidence, suggesting that the defendant had any involvement in, or knowledge of, the September 11 attacks." Id. at 327. In conjunction with this ruling, the district court denied the Government's motions to admit into evidence cockpit voice recordings made on September 11; video footage of the collapse of the World Trade Center towards; and photographs of the victims of the attacks.

The Government appealed, attacking multiple aspects of the rulings of the district court.6

We issued our decision on April 22, 2004. See United States v. Moussaoui, 365 F.3d 292 (4th Cir.2004). Moussaoui thereafter timely filed a petition for rehearing and suggestion for rehearing en banc (the Petition). On May 12, the Government submitted a letter to the court purporting to "clarify certain factual matters." Letter to Deputy Clerk from United States Attorney at 1 (May 12, 2004) [hereinafter "Letter"]. In particular, the Government referred to pages 50-51 of the classified slip opinion, where the court stated:

[Redacted]

Slip. op. at 50-51 (emphasis added),7 see id. at 55-56 [Redacted]

In response to the emphasized portion of the above quotation, the Government stated that

members of the prosecution team, including FBI Special Agents assigned to the September 11 and other related investigations, [Redacted] have provided [Redacted] information [Redacted] consistent with the [Redacted] desire to maximize their own efforts to obtain actionable information [Redacted]

Letter at 2.9 The Government went on to note, however, that "[a]ny information or suggested areas of inquiry that have been shared [Redacted] have been used, like information from numerous other sources, at the sole discretion [Redacted]" Id. at 3. The Government asserted that [Redacted] Id.

Based in part on the revelations in the May 12 letter, we directed the Government to file a response to the Petition. In particular, we directed the Government to provide answers to the following questions:

(1) Why was the information in the May 12 Letter not provided to this court or the district court prior to May 12?

(2) [Redacted]

(3) [Redacted]

(4) [Redacted] provided inculpatory of exculpatory information regarding Moussaoui?

(5) In light of the information contained in the Letter and any other pertinent developments, would it now be appropriate to submit written questions to any of the enemy combatant witnesses?

(6) What restrictions would apply to such a process and how should it be conducted?

(7) If access is granted by written questions, is the Compulsory Process Clause satisfied?

(8) If access is granted by written questions, what effect, if any, would Crawford v. Washington, ___ U.S. ___, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), have on such a process?

(9) If circumstances have changed such that submission of written questions is now possible, when did the circumstances change and why was neither this court nor the district court so informed at that time?

See United States v. Moussaoui, 365 F.3d 292 (4th Cir.2004) (order directing response to petition for rehearing and suggestion for rehearing en banc). Underlying this order were concerns among the panel members that members of the prosecution team may have [Redacted] rendered the witnesses' statements less reliable.

The Government filed its response (the Response), supplemented by a classified joint appendix and a classified ex parte appendix, on May 19. Moussaoui filed a reply on May 24, in which, inter alia, he raised concerns [Redacted].

We conducted a sealed oral argument regarding the petition for rehearing on June 3, 2004. During a discussion [Redacted] the panel asked the Government to provide documentation [Redacted]. On June 16, the Government filed an ex parte document responding to this request.10

The FBI team investigating the terrorist attacks of September 11, 2001 is known as "the PENTTBOM team." The Government considers these investigators to be part of the prosecution team. See Letter at 2.

One member of the PENTTBOM team, Special Agent Aaron Zebley, responded to the World Trade Center on September 11 and has been involved in the investigation ever since. Agent Zebley's particular duty for the PENTTBOM team has been to investigate the al Qaeda cell in Hamburg, Germany [Redacted]. Within the PENTTBOM team, Agent Zebley is regarded as having special expertise and knowledge regarding Witness A. Since November 2001 (one month prior to Moussaoui's indictment), Agent Zebley has been a case agent for the Moussaoui prosecution.

The classified joint appendix submitted by the Government with the Response includes [Redacted]

[Redacted]

[Redacted]

[Redacted]12 [Redacted] the intelligence community is interested only in obtaining information that has foreign intelligence value; the intelligence community is not concerned with obtaining information to aid in the prosecution of Moussaoui. [Redacted] not create special [Redacted] reports for use by the prosecution, rather, the prosecution and the PESTTBOM team receive the same reports that are distributed to the intelligence community at large. Information is included in these reports only if [Redacted] the information to have foreign intelligence value.14

Before turning to the merits, we consider the preliminary question of our jurisdiction. The parties do not dispute that we have jurisdiction over the present appeal. Nevertheless, because this is an interlocutory appeal, and in view of our prior dismissal for lack of an appealable order, we will examine the question. See Snowden v. CheckPoint Check Cashing, 290 F.3d 631, 635 (4th Cir.), cert. denied, 537 U.S. 1087, 123 S.Ct. 695, 154 L.Ed.2d 631 (2002).

In the previous appeal, we concluded that we lacked jurisdiction because (1) the Classified Information Procedures Act (CIPA), 18 U.S.C.A.App. 3 §§ 1-16 (West 2000 & Supp.2003)—§ 7(a) of which authorizes an interlocutory appeal from certain orders of the district court regarding the disclosure of classified information—did not apply; (2) the order of the district court was not a collateral order appealable under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); and (3) mandamus jurisdiction was not appropriate. In the present appeal, the Government asserts that this court has jurisdiction pursuant to CIPA, the collateral order doctrine, and 18 U.S.C.A. § 3731 (West Supp.2003). Because we conclude that jurisdiction for this appeal lies under § 3731, we need not address the Government's other proposed bases for jurisdiction.

Section 3731 allows the Government to pursue an interlocutory appeal of certain pretrial rulings of the district court in a criminal case. The first paragraph of § 3731 provides, in pertinent part, that "[i]n a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information ... as to any one or more counts, or any part thereof." 18 U.S.C.A. § 3731. The second paragraph of the statute allows the United States to appeal a pretrial order suppressing or excluding evidence, provided "the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding." Id. Section 3731 requires courts to construe its provisions "liberally" in order "to effectuate its purposes." Id.; see United States v. Wilson, 420 U.S. 332, 337-39, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975) (holding that, in enacting § 3731, Congress intended to remove all barriers to a Government appeal in a criminal case other than those imposed by the Constitution).

The district court sanctioned the Government for refusing to produce the enemy combatant witnesses for depositions by dismissing the death notice and excluding specific items of evidence. Both aspects of the sanction are appealable under § 3731—the latter under the text of the statute itself, and the former by liberal construction of the term "dismissing." See United States v. Quinones, 313 F.3d 49, 56-57 (2d Cir.2002) (holding dismissal of death notice appealable under § 3731), cert. denied, ___ U.S. ___, 124 S.Ct. 807, 157 L.Ed.2d 702 (2003); United States v. Bass, 266 F.3d 532, 535-36 (6th Cir.2001) (same), rev'd on other grounds, 536 U.S. 862, 122 S.Ct. 2389, 153 L.Ed.2d 769 (2002) (per curiam); United States v. Acosta-Martinez, 252 F.3d 13, 16-17 (1st Cir.2001) (same); United States v. Cheely, 36 F.3d 1439, 1441 (9th Cir.1994) (same).

With respect to the merits, the Government first argues that the district court erred in ordering the production of the enemy combatant witnesses for the purpose of deposing them. Within the context of this argument, the Government makes two related claims. First, the Government asserts that because the witnesses are noncitizens outside the territorial boundaries of the United States, there is no means by which the district court can compel their appearance on Moussaoui's behalf. Second, the Government maintains that even if the district court has the power to reach the witnesses, its exercise of that power is curtailed by the reality that the witnesses are in military custody in time of war, and thus requiring them to be produced would violate constitutional principles of separation of powers. We address these arguments seriatim.

The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor." U.S. Const. amend. VI. The compulsory process right is circumscribed, however, by the ability of the district court to obtain the presence of a witness through service of process. See United States v. Greco, 298 F.2d 247, 251 (2d Cir.1962) ("[T]he Sixth Amendment can give the right to compulsory process only where it is within the power of the federal government to provide it."). The Government maintains that because the enemy combatant witnesses are foreign nationals outside the boundaries of the United States, they are beyond the process power of the district court and, hence, unavailable to Moussaoui.

The Government's argument rests primarily on the well established and undisputed principle that the process power of the district court does not extend to foreign nationals abroad. See United States v. Theresius Filippi, 918 F.2d 244, 246 n. 2 (1st Cir.1990) ("The United States has no subpoena power over a foreign national in a foreign country."). Were this the governing rule, Moussaoui clearly would have no claim under the Sixth Amendment. See United States v. Zabaneh, 837 F.2d 1249, 1259-60 (5th Cir.1988) ("It is well established ... that convictions are not unconstitutional under the Sixth Amendment even though the United States courts lack power to subpoena witnesses, (other than American citizens) from foreign countries."). This is not the controlling principle, however.

The Government's argument overlooks the critical fact that the enemy combatant witnesses are [Redacted] of the United States Government.15 Therefore, we are concerned not with the ability of the district court to issue a subpoena to the witnesses, but rather with its power to issue a writ of habeas corpus ad testificandum ("testimonial writ") to the witnesses' custodian. See 28 U.S.C.A. § 2241(c)(5) (West 1994); United States v. Cruz-Jiminez, 977 F.2d 95, 99-100 (3d Cir.1992) (explaining that when a defendant asserts a Sixth Amendment right to the testimony of an incarcerated witness, the district court may obtain the witness' testimony by issuing a testimonial writ).

In determining whether a district court possesses the power to serve a writ of habeas corpus, the critical principle is that the writ is served not upon the prisoner, but upon the custodian. See Braden v. 30th Jud. Cir. Ct., 410 U.S. 484, 494-95, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973) ("The writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in ... custody."). As the Supreme Court has noted, "The important fact to be observed in regard to the made of procedure upon this writ is, that it is directed to, and served upon, not the person confined, but his jailer. It does not reach the former except through the latter." Ex Parte Endo, 323 U.S. 283, 306, 65 S.Ct. 208, 89 L.Ed. 243 (1944) (internal quotation marks omitted); see 28 U.S.C.A. § 2243 (West 1994) (providing that a writ of habeas corpus "shall be directed to the person having custody of the person detained") Therefore, the relevant question is not whether the district court can serve the witnesses, but rather whether the court can serve the custodian.16

Ordinarily, a habeas writ must be served on a prisoner's immediate custodian—"the individual with day-to-day control over" the prisoner. Henderson v. INS, 157 F.3d 106, 122 (2d Cir.1998); cf. Rumsfeld v. Padilla, ___ U.S. ___, ___, 124 S.Ct. 2711, 2720, 159 L.Ed.2d 513 (2004) ("In challenges to present physical confinement, we reaffirm that the immediate custodian, not a supervisory official who exercises legal control, is the proper respondent."). Here, however, the immediate custodian is unknown. Under such circumstances, the writ is properly served on the prisoner's ultimate custodian. See Demjanjuk v. Meese, 784 F.2d 1114, 1116 (D.C.Cir.1986) (Bork, Circuit Judge, in chambers) (holding that a petitioner properly named the Attorney General as the respondent in his habeas petition because the identity of his immediate custodian was unknown); see also Padilla, ___ U.S. at ___ n. 18, 124 S.Ct. at 2726 n. 18 (acknowledging that application of the immediate custodian rule was "impossible" in Demjanjuk). It would appear—at least the Government has not disputed—that the witnesses are in military custody. Therefore, Secretary of Defense Donald Rumsfeld is their ultimate custodian. Secretary Rumsfeld—who is indisputably within the process power of the district court—is thus a proper recipient of a testimonial writ directing production of the witnesses.[Redacted]

Even if it were necessary for the writ to be served upon the witnesses' immediate custodian, who is in a foreign country, the district court would have the power to serve the writ. In arguing otherwise, the Government points to the language of 28 U.S.C.A. § 2241(a) (West 1994)—which provides that district courts may issue writs of habeas corpus "within their respective jurisdictions"—and notes that in Johnson v. Eisentrager, 339 U.S. 763, 781-85, 70 S.Ct. 936, 94 L.Ed. 1255 (1950), the Supreme Court held that the writ of habeas corpus ad subjiciendum ("the Great Writ") did not extend to enemy aliens held abroad. But see Rasul v. Bush, ___ U.S. ___, ___-___, 124 S.Ct. 2686, 2693-95, 159 L.Ed.2d 548 (2004) (explaining that Johnson addressed only the question of "the prisoners' constitutional entitlement to habeas corpus" and noting that § 2241 makes habeas relief available as a matter of statutory law even when the Constitution does not require availability of the writ). Based upon the language of § 2241 and Johnson, the Government contends that the process power of the district court does not extend overseas.

This argument is premised on the assumption that territorial limitations applicable to the Great Writ also apply to the lesser writs. This assumption is incorrect. In Carbo v. United States, 364 U.S. 611, 81 S.Ct. 338, 5 L.Ed.2d 329 (1961), the Supreme Court considered the question of whether the writ of habeas corpus ad prosequendum ("prosecutorial writ") applied extraterritorially. The Court traced the different histories of the Great Writ and the testimonial and prosecutorial writs, noting that the statutory authority to issue the Great Writ had been territorially limited since at least 1875. See id. at 614-18, 81 S.Ct. 338. In contrast, the prosecutorial writ (authority for which derived from a different statutory provision) existed for the purpose of bringing a defendant into a jurisdiction for prosecution and thus was not traditionally territorially limited. See id. The Court concluded that while these distinctions were erased when Congress enacted § 2241, Congress did not intend to abandon them. See Carbo, 364 U.S. at 620, 81 S.Ct. 338. The Court therefore concluded that the prosecutorial writ may issue extraterritorially. See id. at 621, 81 S.Ct. 338.

Although the Carbo Court explicitly left the question open, its reasoning applies equally to the testimonial writ. See Muhammad v. Warden, 849 F.2d 107, 114 (4th Cir.1988). It is thus clear that a district court can reach beyond the boundaries of its own district in order to issue a testimonial writ.

The Government next argues that even if the district court would otherwise have the power to order the production of the witnesses, the January 30 and August 29 orders are improper because they infringe on the Executive's warmaking authority, in violation of separation of powers principles.18

We begin by examining the Government's reliance on cases concerning governmental refusal to grant immunity to potential defense witnesses. The Government argues that these cases stand for the proposition that the district court may be precluded from issuing certain orders that implicate the separation of powers. We reject this characterization of these cases.

"The Self-Incrimination Clause of the Fifth Amendment guarantees that no person `shall be compelled in any criminal case to be a witness against himself.'" Withrow v. Williams, 507 U.S. 680, 688, 113 S.Ct. 1745, 123 L.Ed.2d 407 (1993) (quoting U.S. Const. amend. V). Nothing in the Fifth Amendment, or in any other constitutional provision, provides a means for overcoming this privilege once a potential witness has invoked it. See, e.g., United States v. Lenz, 616 F.2d 960, 962 (6th Cir.1980). However, through the Immunity of Witnesses Act, 18 U.S.C.A. §§ 6001-6005 (West 2000 & Supp.2003), Congress has conferred upon the Attorney General statutory authority to grant use immunity to witnesses in order to obtain their testimony at trial. See generally Kastigar v. United States,