‘and interrupt the flow of ongoing intelligence gathering-

ii. Balancing

Basenesne

The United States maintains that 4 decision to gre t

defense pretrial access co [ll o: require his ‘presence as

& witness at trial would amount to improper judicial

interference with

divert attention from military offerisives ‘abroad, -
(CR at
62; Tr. at 33, 41.) The Government contends that these national

security concerns outweigh any due process oF Sixth Amendment

rights of the defendant to presen

° 20

C718 [


App. 3, which governs the relevance, U

classified information at trial, the Court finds that

most: analogous legal framework within which to resolve these

at.4.) By invoking Section 7 of CIPA'in its

the Government also appears to acknowledge that

t

this statute offers guidance as to how to resolve the instant

dispute.*

Under CIPA, a defendant seeking to use classified
~_—— : y

"with the notice provision.“ Upon

classified infoxmation. “

information at trial must serve notice on the Government. ©

U.S.C. App- 3 $5. To the extent that prospective trial

testimony of is “classified

_—
information” as def. ned in Section 1, the defense has. complied”

a motion by the United States,

_

. & Section 7 permits the United States to take an
dhtexlocutory eppeal of -& district court's -decision “at
the disclosure of cles fied information, imposing sanctions for

nondisclosure of classified information, oF refusing 4 protective

order gought by the United ‘States to. prevent the disclosure of

. % section 1 defines “classified in ormation” as “any

information or meterial which shes peen. detémined by the United
States. Government. pursuant to 4 Executive Order, statute, OF :
feguletion tore protection against -nauthorized disclosure

° : . 4

c7i2



oussaoui’s fundem

favorable witness in this capital

Although 4 criminal ‘defenda

an opportunity to
they intend to present
that granting

identified by. the United

'- insisted on:
and he ‘has not requested pretrial agces

testimony can be secure

i endant, hims

ability re) ‘Sroparé Rit

interviewin potentia
rocesding

meet +

standby counsel unmonitored, P

would implicate too many of the.

which accommodates

defense motions

security concerns while preserving

prosecution-

counsel normally have

h. and prepere 2 witness whose testimony

the Court, finds

at tr

retrial access to
security concerns

d States.” However,

od under the following condit.

himself, acknowl di ed that he understood
ncliaing” personally"
“would be ‘limited when. he. a
13, 2002 hearing 4 at 32),

to this witness:

witnesses;
pro Se,.{Tr- a





the Gove comer’ s

the adequscy of propose

E rnandez, 913 F.2d at 154. 2

or substitutes for,

as not proposed any alternatives to,

id
be

testimony desp

ur nonths. In fact, aw argument, the

che

Ge eneral conceded that he

IE — -
government! s posit on would be with respec

although erdal counsel suagested ¢ that

at? which’ materials netaisa ¢ to el , have been and

continue: to be classified, hawever, leads the court. to conclude

ere not resolved within’ the cIPA
fe. the Government's
ce against 4.

AEven, £ these. motions w:
‘tionally, a. court-must
f fusing to. produce evi
ors right Da ir trial. “SAL? oper .balance..- must
Sy the particuls ch: case, faking. into
che oxime Charged, the possibie ¢ defenses,” the
gnificance ef che. [witness!]. peszime:
chore Rovaric, 353 at §27.5) so
kencing the defendant!
te compalsory process for worable witnesses
“claim of privilege): LG

c719



a but have been GRANTED to
to, compel the trial testimony ee ==

January 31, 2003 and

limitations
articulated Erom the bench, in the Order of

Memorandum opinion.

The Clerk is directed to Forward copies of this Memorandum
Opinion to counsel for the United States? standby defense
counsel; and the Court Security Officer, who is to.sibmit this

Memorandum Opinion for classification review so that an
appropriate version can be provided, to the pro sé defendant.

“ Entered this 10th day of March, 2003.

wee ee : a /s/

Teonie M. Brinkema
United States District Judge

Alexandria, Vir inia

726

“


compelling

recéive the

Constitution and le

trial is a quest

78, 80- Bt (1970)7

; United

(4@ cir, 1985) Wi

an

deprived of the opportunity to present

vAlthough cr
the Govadinent : i

ubstitutes of

issue, ‘the ‘statu

Moussaoui wi

tes, 369 F.2d4

d the public will be denied 2

onisn measures if “the interests

O° “nedacted any and ail

dngon, der concurring); & reqcory Vv

495, 188 (D.C. Cir. 1966), both the defendant

trial if Moussaoul is

eeStimony:

PA permits “the pitimats sanction of dismissal if ©

$s unwilling or nneble to propose ade!

“el assi ified Li

tives to the

te also requires courts to consider “less

tg of justice would not be

9 the prosecuti on’s theor
cked airplane inte the ~

oy

tu
ac.

as to Ely

C721



prose cution theory that Moussaovi wa i iftt

House.

airplane into the ‘what

that Moussaoui was not 2°

These Lacts support the defense theory

participant in the charged conspiracies}

id not help the defendant:

testimony cou.

excepé liab support the defense

argunent that Moussaoui should_not be sentenced to déath.
‘specifically,

ing evidence of the defendant’s minor

ose may be considered mitiga

: “-wole in the offense (s) Those game a: if believed, also

a --undezmine the Government’s argument that Moussa2oul’s alleged Lies

. 18

C716


{To support its argument,

f; Amendment viel

yitness whe was de

F2

the Government not to posses material

prosecution er the defense), and Buie v- sullivan, 923 F,2d 10

(24% Cir. 1990) (finding that the State’ s arrest and refusal to

. _— not be
he: défendant: “Moussaoui has been) n his:
these individuals appear as witnesses on his
el, too,, heave unequivocally indicated
fo zl counsel, they would call
Self. 2:

708



‘8! see July 23, 2062 Letter from United States to Moussaoul

and [propesed] Statement of Facts. .

C705


C704


September 11 plot,” (CR at 53-56; Tx.

“place the defendant in th:

ig-17, 22-24, 26),° the Court is fully satisfied thet

, if believed, are both

several
The ultimate determination as to the.

terial and exculpatory.

prosecution, to make in

x the jury, rather than the

at 64, United States

introduced at trial

v. Colin, 928 F.2d 676, 679 (5% cir. 1992), United States v.

Tsitacawe, 500 Fezd 420, 423 (9 Cir. 1974).

made surficient showin:

The defense has not, however,
dality and fevorability of any testimony’ from’

régarding the mater:

the Second Superseding Indictment, the
*“Co}n, or about August 17, 2001, [the
d by federal agents An: .

is presence in the United ©

ly interested in

o sta dby counsel’s

Win-paragvaph 72 of
“United States alleges that
defendant], while being interviewe
is, ‘attempted to explain hh
ating that he was simp.

Sentence of Death
es to federal

0 ‘Seek 2.
aoui’s alleged. 11

- : 19

\

C717



Discussion
.The Government

pretrial access to,

WEE, ict ines arguing that its na

g “intelligence vital to saving

gatherin

strenuously opposes these defense motions for

and to compel the trial appearances of, any
tional security interest in

American “lives and

C707



ng should resolye any Government concerns i

conditio



TES

A
* CLERKS
ALEXANDAIA. VIRGINIA

)

)

)

. )
ZACARTAS MOUSSAOUI, y
k/a *Sbaqil” )
)

)

)

)

“a7 R7a waba Khalid
al Sahrawi,”

Defendant.

_.. Fhe Court has al: yy ruled on sev 4

te, and to compel. the trial eppear neces’ of .

%és to
- 2003, the

_BEGaUse
was mot present. ;
defendant has foe we

_ C699


at 12.) However, pecause the individu:

_the good ox bad

favor

_the rights ‘to. remove illegal aliens, see, &-Ger Valenzuela—

(Am €

to compulsory process

4g4 U.S. 400, 408 (1988)7

amend. VI; Taylor v. Illinois,

Ritchie, 480 U.S- 39, 56 (1987)3 Washington ¥-

Pennsylvania

Texas, 388 U-S« 14, 1S (1967); Chambers Vv. Mississippi,

284, 302 (1973).
The Court in no respect questions the good faith of the

N

(fz

United States in its efforts to wage War against terrorism.

ais to whom the defense

seeks access are not “lost,” we agree with standby counsel that.

faith of the Government is not dispositive. «

ee

@ ghe right to compulsory process is, however, not absolute.

Rather, a defendent mist make 2 plausible showing that the
h material and favorable: to hig

‘witness’ testimony would be bot.
defense. .Sée Valenzuela-Bernal, 4580.8. at 867. ~Moreover, 25

the G vernment argues, a criminal defendant's ability to -present.
ave witness testimony may. be tempered by the United States’
good faith exercise of isgitimate executive ‘functions, ined :

= 858; to-pursue a. ‘criminal prosecution
a witness who may exculpate 2 defendant,

Unitéd.Stat

-réquest that “a

See
‘Gravely, 840 F.2d 1156, 1160 (4% Cir. 1988), .to
; government recall a national who commits
in the United States, “see United States
1980), OF to prescribe and
wo EF as

ériminaY-xxongdoing whil

cooperate: ted
Cromer, 159 P.3d 875, 882-83

is not a party, S€s Smith v.

“1998). 07 ;

C710



’s Sixth Amendment

,

proposition that when the Government's

(CR at 2-30; Tre at

dby counsel contend that

the Government’S

because those cases concern “lost” ev:

contends that Moussaoui’s

trial testimony of fav

security concerns 25

orable witnesses outweighs

ixth Amendment xight to

th

rticulated by the UHited States

y is misplaced

Rather, the. defense

secure the

e, national

A. Good Faith of Bnited States

“Despite the clear & Allocath

pranches, judicial defer
name of
464 (48 Cir. 2003) -
“protect [individual rights]

tary forces are committe

conflict.” Id. Rather,

Ll cf Rights are triggere

crime.

See id. at 465, 475.

The Government's good. faith interest in

. , wl

“the duty of the “gpa cial

certain protections gu

on of war powers to th

ference to execttive decisions

does ‘not “simply céase wh

d by thé political. prancl

d.when an individual is

prot

‘Mot Dispositive

e political
mads in the

16 F.3d 450,

‘war is not unlimited. ” Hamdi ve puinsvel: d, 3 :
~
branch to .

enever our

hes to armed

aranteed by the

charged with 4

ecting nation:

C7039




urt received a copy of the
ing, ‘which had been
tructions so that an
o Moussaoui. The ‘redacted
ke the
fied.

‘chat t! States continues to ta
ything concerning detainees is classif
ee Sil

7 on
the January’ 30, 2!

the. Cou, a
provided

for reasons not app: ‘o the Court,

. - 22

c720



-)
it

“yndercut the Governments: theory

ide the following evidence w

argues

of the defendant's culpability:

C702


the defense seeks to introduce

by
i
ue
in
9
5

info

relevant, the United St

alternatives to the public disclosure ©

classified information. 18 U- s.c. App-

the court determines chat the proposed substitutes oF

alternatives do not provide the defendant with “subs antially the

same ability to make his defense 45 would disclosure of the

specific classified information,” the court must reject the

proposed substitutes oF alternatives. The court méy hot

ie ed infomation -

___ authorize the pub ic disclosure oF the classif

Instead, the court must dismiss the indictment unless it

dictate some other

determines that the intezests of fustice
jad at’ 154 (affimming @

ry

measure. id.j see also Fernandez, 913

district court’s dismissal of indictment aft er find! “ng. the

Government’ 5 proposed substitutes . for relevant cli assified

in: formation te be inadequate) -

oo

for reasons of national security.’ although a natural human. ~
. . being” ‘cann be. “olassified into tion,” the Governms! has”
classified nearly every shred of int i ia —

tainees- See, -S-Se fn, 21 infzxe-

@

coo . B.thése. determinations ere governed by ©
Ewidence.

oo 435

rederal Rules of

C713


. Yonder the Federal Death Penalty Act, a.defendant, becomes.
death-eligible in limited circumstances. See 18 u.s.c: §

3591(a) (2) (C) (requiring the United States to prove beyond @
beasonable doubt that the defendant ‘intentionally participated
im an act; contemplating thet the. life of a person would be taken

ox ‘intending that lethal force would be used in connection with 4

’ person,. other than one of the participants in the offense, and

the victim died as. a direct. "r t of the act.”) Moreover, -under
5 3592 (a).(3)and(4), a defendant’s minor participation in the -
offense ‘and -that. equally..culpeble defendants will not be punished

by death may be considered as mitigating factors.

C715



to pilot 2 ¥ifth hijacked airplane and crash it into the White

House. (Ir. Jan- 30, 2003 closed rearing Q9r.7) at 23,.25,, 62

63.) If convicted of any of the first four counts, the defendant

faces. the death pen: it
Although he. has readily admitted to being 2 member of al

Qaeda and has pledged allegiance to Osame bin taden; Moussaoul

istently claimed thet he was not 4 participant in the

—_——~septembes-ti plot Instead, he suggests thet he was pate of co

another opexzetion to occur outside the United States after

‘ September 11 4neolving different “inembé is of al Qaeda” — :

701


ets

the Government's

——_= d: dlitary’s attention from its

asive efforts abroad is unpersuasive-

suggestion tha anse access

When the Government elected to pring Moussaoui to trial in

i i an tribunal, it assumed the © responsibility of abi

incipies of due process. See Jencks, 353

nd ch prosecutes an . accused also has

671 (“the Governme.
To the extent that

the duty to see that justice is done... “yy.

. . ’ .
_ the United St. ates seeks a categorical, “wartime” exception to the
..Sixth:Amendment, it should reconsider whether the civilian

: : : . x :
criminal courts are the appropriate fora in which to prosecute

eged terrorists captured in the context of an ongoing wa:

“Iv. .Conclusion Loe

For the foregoing reasons and for the additional reasons

g held on Januar,

2003, defense motions dockets
———s have been DENIED to the extent that they reques =

7. . 26

: . . C724 {



on

against & mi and io avoid
The United States cally opposes these moti Ons,

pretrial access to

that to grant the defense eny kind of

these detainees or to grant the defense requests to produce them

at trial “would entangle the court in the post hoe micro~

_ Management of the conduct of the war.” (Consolidated Response

c issues yaised by the instant motions

- (°CR”), at 1.) The spe

and the factual environment in which they arise are

unprecederited, and graphically underscore the difficilty of

balancing the dué process rights of @ defendant charged with

a
mh
e
1g,
rs)
ft
te
i)
a

i

capital offenses against the United States’ inter

a war against terrorism. |
Tr.. Factual Backaround
The United States has charged the defendant, who is a French

citizen of Moroccan origin, with Conspiracy to Commit Acts

, Terrorism Transcending National Boundaries in violation of 18

U.S.C. § 2332(a) (2) and io (Count I), Conspiracy to Commit

m of 18 U. ~5.C. s 46502 (a) (1) (A) and

Aircraft Piracy in violat

(a) (2) (By (Count, II), Conspiracy to Destroy Aircraft in viol ation

of 18 U.S.€. §8- 32.(2) (7)and 34 (Count III), Conspiracy to Use

-Meapons of Mass Destiuction in violation of ye u.s.c. § 2332a (a)

“(Count Iv), Conspinacy to Marder United States Employees in

c700


Moreover, unlike the ‘immunity cases” such as Buie, the

issue ig not whether the Court can force the Executive Branch to

abandon its good faith pursuit of duties uniquely within its

discretion. The Court is not being asked to preclude the United

States from pursuing 4 criminal prosecution of these ‘detainees.

_ ex to require the Government to immunize them. See United States

tk Cir. 1996) (finding that the

_—_—

3a 506, S21 (
: right to

compulsory process) + United States 7- Gravely, 840 F.2d 1156,

4160 (4TM* Cir. 1988); United States v. Tindle, 808 F.2d. 319, 326

(4TM cir. 1986) (Zinding that the Sixth anendment gives the

defendant the ‘Fight to bring his witness to court to have the

witness’ non-privileged testimony heard). At issue is whether -

the Government may categorically refuse to produce vexculpatory

evidence, including witnesses as on the ground thet

on may interfere with its war On terrorism.

such producti

C711


nt with established principles of due

nt may not suppress evidence favorable to en

accused that is “material either to guilt or punishment.” Brady

y. Marviand, 373 U:S. 83, 87 (1963); see also Jencks v. United
353

states, 353 U.S. 657, 671 (1957)? Rovario v. United States

GeS--53,. 60761 (1957) - Evidence, whether documentary, oF. co oe

testimonial, is material if it would tend.to exculpate @

defendant or reduce the penal ty he potentially faces, id. at 88,

&, see ee United

create a reasonable doubt as to the defendant's gui

aaurs, 427 U.S. $7, 112 (1976), OF tundermine confidence .

in the outcome of the trial if, suppressed, See United States v-

Bagley, 473 U.S. 667, 679 (1985) - mo. .

* the Uni ted States concedes ono is @ material

at, trial.

witness, put dees not intend to offer

at issue is whether the “getense has nade a a2 plausible

as offer testinoay that would be
: See Velenzuele-Bermi 1, 458 U.S. at 867.

Therefore,

Bho

wing the
orable

‘The defense has made a significant showing —= |

,, favorable testimony on the

ald ‘be able to provide material

SRM ose svetiebie fot Say eee
defense, I carr assure you he would’ be called - =

(Ir. at.15.)

16

rt

. . fo Os ora