JuL.el. orderh NO. 382 P.1a

SUG 22 85 15:28 LITIGATION _— | PS

cpposes this request.

The Court previcusiy considered end rejected the United

cates’ proposed substitution for the Fed, R. Crim. P, 15

finding that the tendered

Bummaries was an unreliable,

deposition

“incomplete and inaccurate substitute tox] deposition
testimony. (Memorandum Opinion of May 15, 2003). Te the extent
that the United States seeks an opportunity to propose
substitutes for, or alternatives to, the Fed. R. Crim. B, 15
depositions which would accommedate some
form of defense interaction ar input end result in a reliable,
verbatim record of the witnesses’ testimony, the Court will granc
the United States a brief opportunity to do so.

The Court Security officer is directed to forward Copies of
te

to make selevance or admigsibilit determinations as to
particular statements
Rather, we agree with Sten y counsel that such determinations

should be made as they arise Curing any Fed. R, Crim, Pp. 1s
deposition and/oz any future proceeding pureuant to Section 6 (a)
of CIPA at which the Court will rule on the “use, relevance or

admissibility” of specific classified information identified by
—_ counsel a fo Section 5(a) of CIPA,

14 \¢



JUL. 21.2

Te er er



im
oD

NO, 282
TUL.24.1998 9 9! 410PM

SUS 22 23 15:13 LITIGATION SECURITY

PS

could undoubtedly offer

unique <nsight into the defendant's role,

if any, in the charged
offenses, Purthez, as the defense o

bolst

ontends, Could both

er and expand upon the trial testimony

the defense would
attempt to eliad

Would sorzroborat

the Sept

ember 11 operation would not,

The United States’ contention
this testimony would be cumulative is simply
light of it

that disingenuous in
§ representations that the Government will neither

make avéileble for the COurt-cordered fed. R, Crim,

18 deposition, nor declassiry

PB.

10

P14


NO, 382 Poi

JUL.21.1998 9 §:G9Fh

in
a

AUG 29 G2 15:87 LITIGATION SECLRT P.2

In light of the particular allegations in the indictment and

the United States’ desire to hold Mougsaoul responsible for the
tragic events of September 11, 2001 by seeking a penalty of deeth

in this case," the Court Finds that the defense has made a

et

"Moussaoui ig Sharged with Conspiracy to Commit Acts of
Terrorism Transcending National Boundaries in violation of 18
U.S.C. § 2332 (2) (2) and (ec) (Count I), Conspiracy to Commit
Rixeraft Piracy in vielation of 18 U.S.C, § 46502 (a8) (1) (A) and
(@) (2) (B) (Count rz), Conspiracy to Destroy Aircraft in violation
of 18 U.S.C. §§ 32(a) (T)and 34 (Count Izf), Consniracy to Use
Weapons of Mass Destruction in violation of 18 U.8.c. § 23328 (a)
(Count Iv), Conspiracy to Murder United States Employees in
violation of 18 Bi.s.c) $§ 1114 and 1117 (Count V), and Conspiracy
to Destroy Property in violation of 18 U.S.0, § 844(f), (i) and

7

az a




NO, 382, P.13
JUL.21.1935 9:10PM

AUS 29 °GB 15:11 LITIGATION SECI P.4

Possibility of a death Sentence, and could exculpate him from the
specific conspiracies charged in this case.!8

The Court finds unpersuasive the Government’ s Contention
EE.....:.., Father than exculpates, the defendant
in the charged offenses. As stated in Cur Memorandum Opinion of
March 10, 2003, the ultimate determination aa to the value of a
witness! testimony is for the jury to make in the context of the

other evidence introduced at trial, The Prosecution does not

make this evaluation,

The Gevernment‘s 0 testimony

Would be unnecessarily cumulative is also without merit,

—_

require the defendant to admit that “eg Part of al Qaeda's
Gonspiracy to attack the United States, an operation was
conceived in which civdlian commexcial airliners would be
Aljacked and flown into Prominent buildings, including government
buildings, in the Us5.,% (Proposed Statement of Facts at G 6),
that he “knew of « Plan to fly sirplanes into prominent buildings
in the United states and he agreed to travel to the United States
te participate in the plan,” (ig, at ¥ 7), that he “intended to
Use Als training as a pilot in furtherance of the plan,” (dd. at
G8), and that, en September i1, 2001, four commercial airliners
were hijacked ang Crashed into the World Trade Center towers, the
Pentagon and a field in rural Pennsylvania killing thousands of
People, (id. at 9% 14-19). That plea colloquy broke down because
the defendant was, and continues to be, unwilling to admit te
knowledge of, or involvement in, the September 11 attacke, (Tr.
July 25, 2002 hearing at 37-49),



NO. 382 PS
JUL.21.1998 9:07PM

MWe €9 “Ma ldibs U1) 1GH! LON SECURTTY_

. q Pia
FILER WITH
ATE

IN THE UNITED STATES DISTRICT couRt S/S fos
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES OF AMERICA,

vy Criminal No. 01-455=-A;

a/k/a “Shaqii”
a/k/a “Abu Khalid

)

)

)

)

ZACARIAS MCUSSAQUI, )
)

)

al Sahrawi,”  }

)

)

Defendant,

MEMORANDUM OPTNION
IT. Inhreduetion

Before the Court are the defendant's BEO gz motions to

compel the trial appearances

and Stendby
Counsel's Motion for Pre-trial Access and for Writs ad

(“Standby Counsel's Motion for Acceas to and Writs for
(Docket #997). For the reasons -stated
“herein, the motions will be granted in part and denied in pert by

@n appropriate order issued with this Memorandum Opinion.

iI, Backezound

oe
:


i : _ NO. 342. 16
JUL.21.1998 0 Stair

RUG 29 BS 15:17 LITIGATION SECURT

SUpports the defense

ention that Moussaoui Was not involved in the September 11

cont

operation,

supports the claim that Moussaoui was not part of the September

ii plot because the defendant was in the United States at the

time, but was not contacted

TII.. Conelusion

Fer the reasons stated in the Court’
March 10, 2003,

8 Memorandum Opinion of

However, as we did
in the context of similar defense Tequesta concerning pretrial

access in consideration of the United States’

Sean



JUL. 21.1998 e:11PM

AUG 25 ’BS 45125 LITIGATION SECU

The Court £4

that, if called as a witness at trial

Material, exculpatory testimony on the defendant’

S$ behalr,

NO. 382

uv
n

nds that the defense has adequately demonstrated

could provide

P.is



0.382 Pte,
JUL. 21.1998 8 g:gapr $26 LEvtearion “Ti NO. 38. &

suitietenat shewin: sculd provide material ang

"s behalf. see United states °

7 438 U.S. 858, 967 (1982).

favorable testimony on Mousszoui

Ak minimum,

een

(n) (Count VI). Beeause the United st

charged conspiracies tesulted in thous

11, 2001, i convicted ef any of the £.
_Ssfendant faces the death penalty,

euch testimony would eliminate the

ates has alleged that the
ands of deaths on Septamber
arst four counts, the

7 the testimony of a witness ma:

send to exculpate a defendant or red
Potentially faces, gee a it , 373 U.S. 83, g@
(1963), create ¢ reasonable doubt as to the defendant's guile,

ve - 427 U8, 97, 112 (1876), or undermine
Confidence in the outcome of the trial if i

Suppressed, age Unized
473 U.S. 667, 673 (1985) ,

Y be favorable if it would
luce the penalty he

. Moussaoui’s knowledge and intent a
chig case, Before the July 25, 2002 heari.
defendant attempted to enter a guilty plea
previded the defendant with a pz
which he would have had te admit
proceed with the plea. Specifica

ze critical issues in
mg at which the

, the United States
oposed Statement of Facts to
for the Gevernment to agree to
ily, the Government sought to

18


NO. 3az

argues that zits national security concerns outweigh the

defendant's need for, or vight to, the trial testimony ia
.:-:. detainees; and further contends that the potential trial
tastimony 4s not ag valuable as the
defense claims because it would either be inculpatory or

unnecessarily cumulative,
TIZ. Discussion
Having carefully reviewed Moussaoui'’s pro ge pleadings,

counse.’s memoranda, and attachments thereto, ag well as the

, the Court concludes

detainees will likely be able to provide exculpatory
testimony which the defendant hag a constitutional right to
present to the jury at trial, The court's previous finding in
ite Memorandum Opinion of Mareh 40, 2003 that the United states’
national security concerns do not outweigh the defendant’s Sixth

Amendment right to compel the trial appearances of witnesses in

his favor is incorporated herein.

A,

Pg


JUL.cl. L950 SF 1ePM NO. 382

AUG 29 'B3 15:23 LITIGATION SEQURITY_

. P18

this Memorandum Opinion to counsel for the United States and

standby defense counsel; and is further instructed to submit this

Memorandum Opinion for an expedited Classification review so that

an eppropriate version can be provided tc the 222 s@ defendant

and placed in the public record ag soon as posgible,

5
Entexed this 27 day of August, 2003.

/S/

Leonie M. Brinkema
United States District Judge
Alexandria, Virginia

1

P.19


JUL.21.1993  S?O8PM NO. 382-——-P.

Crim, 2, 18 deposition, , ‘

Given the United States’ tefusal to comply with that Order,
the Court is now tasked with imposing appropriate sanctions on
the United States, However, because the same legal issues are
implicated in the defendant's motions concerning

| 6B avoid piecemeal litigation and to ensure that the
record is complete, the Court decided to resolve the defenge
motions concernin before sanctions are
imposed, .

In accordance with the Court’s Order of July 11, 2003, which
directed the Parties to further brief the defendant’s Bro ge

motions to compel the trial cppearences ly

on July 23, 2003, standby defense counsel filed their Motion for

Pre=trial Aecesa and for Writs Ad Testi ficen ni

(Docket #997), primarily

contending that testimony from would exeulpate
Moussaeud by eliminating him from any role in the September 11
plot. The United States argues that the defense request for
pretrial access to these detainees should be denied because the
Court previously declined to grant a similar oo
a and reiterates its contention that the defendant does
not have a constitutional right to compel the trial testimony of

“enemy combatants captured in the theater cf war and detained

abroad.” (Government's Opposition at 3). The Government also

——_—


JUL.21.1998 9:07PM NO. 382 P.6

AUS 23 WY 1469S> LL GH LUY setuRii Te

Moussaoui filed motions seeking to compe

appearances at trial as witnesses on his behalf. Because the
United States had, at that time, noticed ita appeal of the
Court’s Ozder of January 31, 2003, which granted in part and

denied in part similar defenge motions requesting pretrial access

to, and ta compel the trial opernce

the Court stayed resolution of the motions

regarding until the United States’ appeal
was resolved. (Orders of March 10, 2003 docketed as #3 783 and
784), On June 26, 2003, the United States Court of Appeals for
the Fourth Circuit dismissed the appeal for lack of jurisdiction
after which the mandate was promptly returned to this Court for
further proceedings, Since the return of the mandate, the United
States has advised the Court, pursuant to Section 6(6) of the
Classified Information Procedures Act (SCIPA”), 18 U.S.C. App, 3,

that it will not comply with the Court’s Order of January 31,

2003, and will not rake IIB 2220222 for any Fed. 8,

a



JUL.21.1998 8:11PM NO. 382 Pu?

S16 29 OS 15:29 LITIGATION SECURITY. PS

national security concerns, the Court will not grant standby

defense counsel wimenitorsd, pretrial aceess to these detainees,

Although Moussaoui vigorously
OPPOfes any outcome short of the Court securing the physical
presence of these witnesses at trial, (Docket E. 968,

371, 372, 1LO1O, , we find that the proper balance

of the parties’ interests favors treating]

just as Therefore, by an appropriate order

issued with this Memorandum Opinion, the Court will direct the
United States to 0s for
Fed. R, Crim. P, 18 depositions under the game terms and
conditiong articulated in the Court’s Order of January 31, 2003,
Pursuant to Section €(¢) of CIPA, 18 U.S.C. App. if.
United States requests an opportunity “to propose appropriate
substitutions.,, for the specific evidence identified by the
Court,” (Government’s Opposition at 20), ox “to suggest
Substitutions for those statements the Court has deemed material

and admiasible.” (Government's Opposition at 6).7° The defendant

rn emery

* other than rely, in part, on summaries
in suppert of its finding that the defense has made dequate

showings regarding the materiality of the potential trial .
Ses: y lle ease the Court has not endeavored

13

(5