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For Michael Chertoff, last week’s court appearance in the case of Zacarias Moussaoui may not only have been his last argument as a prosecutor, it may also have been his most important. Since the 2001 attacks, the outgoing chief of the Department of Justice’s Criminal Division has taken a keen, personal interest in the Moussaoui case — perhaps the most important test yet of whether the government can successfully try terror suspects in federal courts, rather than in military tribunals. Chertoff was instrumental in bringing the criminal charges and urging that the government prosecute the alleged Sept. 11 conspirator in a federal court on U.S. soil. He personally handled arguments in an earlier closed-door hearing before the trial judge on whether Moussaoui should be given access to witnesses considered enemy combatants by the U.S. government. Appearing June 3 before a three-judge panel of the U.S. Court of Appeals for the 4th Circuit in Richmond, Va., Chertoff argued that U.S. District Judge Leonie Brinkema of the Eastern District of Virginia exceeded her authority when she ordered the government to produce captured al Qaeda operative Ramzi Binalshibh for a video deposition. While friction between national security interests and the rights of criminal defendants is not a new dilemma, the issue has taken on increased urgency in the aftermath of the terrorist attacks. And, as Chertoff knows, the outcome of Moussaoui’s case is likely to have broad implications. “There was no Sixth Amendment basis to order what the court ordered,” Chertoff said, displaying throughout the hour-long hearing the intensity that has become his trademark. “The court simply expanded or extended a provision of the Bill of Rights and in so doing the court bumped up directly on the separation of powers.” Chertoff, who is leaving his DOJ post for a likely seat on the Philadelphia-based 3rd Circuit, has adamantly maintained that U.S. civilian courts can handle terrorism trials. For the case to be moved to a military commission — as is likely if the government loses its appeal — would be a significant defeat and threaten the government’s ability to continue prosecuting terrorism cases in criminal court. Indeed, before the 4th Circuit, Chertoff ended his argument with a plea that the court not consider military tribunals as an option, explaining that moving a case into a military forum midcourse could raise serious legal and foreign policy concerns for the government. Early in his case, Moussaoui famously fired his court-appointed lawyers, but Judge Brinkema kept them on as stand-by counsel. The head of that team, Eastern District Federal Public Defender Frank Dunham Jr., faced off against Chertoff for the public portion of last week’s arguments. Dunham argued that denying Moussaoui access to Binalshibh — who is believed to have coordinated the Sept. 11 attacks — would violate the defendant’s Sixth Amendment right “to have compulsory process for obtaining witnesses in his favor.” Not allowing Moussaoui to question Binalshibh, Dunham said, would amount to “declaring a witness unavailable who is alive and kicking in the custody of the United States.” He suggested that if the government refuses to allow Binalshibh’s deposition, Brinkema might penalize the prosecution by dismissing the charges or removing the death penalty as a sentencing option. Arguments before the 4th Circuit panel were conducted in two sessions — one open to the public and one closed for the discussion of classified information. Chertoff argued for the government in both portions. Middleburg, Va., defense attorney Edward MacMahon Jr. represented the defense in the closed proceeding, which lasted approximately 90 minutes. More than 30 individuals with top secret classification sat in on the closed session. Moussaoui, still representing himself before the District Court, requested to attend the hearing, but was not permitted to be present for either portion. Chief Judge William Wilkins Jr., a Reagan appointee; Judge Karen Williams, an appointee of the first President Bush; and Judge Roger Gregory, originally nominated by President Bill Clinton and later renominated by President George W. Bush, sat on the randomly selected panel. Even during the public portion of the hearing, the unusual security issues posed by the case could be felt. For instance, at the hearing’s outset, Wilkins instructed a representative from the Central Intelligence Agency to stand up and be recognized at any time if a speaker seemed to be straying into classified territory. The court, which did not indicate when it would rule on the case, must decide whether Moussaoui has a Sixth Amendment right to Binalshibh’s testimony and, if so, whether that right is outweighed by national security interests. According to both sides, there is no precedent for a defendant seeking access to a noncitizen witness held in military custody outside the United States, and the case does not fit neatly under the rubric of the Classified Information Protection Act (CIPA), which provides a road map for protecting sensitive government information in criminal trials. Chief Judge Wilkins, a former chairman of the U.S. Sentencing Commission who takes a high interest in criminal cases, asked Chertoff why the Sixth Amendment would not apply to a witness held outside the country when it extends to witnesses held in federal prisons within U.S. borders. “Why doesn’t that rule apply equally . . . if we serve the custodian over whom we all know the court in Alexandria has jurisdiction?” Wilkins asked. “Because, Your Honor, there is no process to be extended over a noncitizen overseas,” Chertoff answered. A court simply “lacks the power to send a subpoena or issue any kind of process to require a noncitizen overseas to appear in an American court.” Chertoff added that allowing Moussaoui’s lawyers to depose an enemy combatant would interfere with ongoing military operations, creating a conflict between the executive and judicial branches. “We’re not merely talking about the question of producing a prisoner, a passive individual who is being held in custody,” Chertoff said. “It’s an actual disruption of active interrogation, which is as much a military operation in the context of this war as sending a battalion from one point to another point.” Dunham, the federal public defender, countered that the court can lawfully compel a witness to be produced, if it has jurisdiction over the custodian — here, presumably, the U.S. military or intelligence agencies. Dunham argued that CIPA ought to apply to Moussaoui’s request for access to Binalshibh. Under the statute, if classified evidence is deemed admissible and relevant to the defense, the government must either declassify it for use at trial or make acceptable substitutions. When no accommodation can be reached, the case is usually dismissed. “When the government comes into court and says this witness . . . cannot be made available to you . . . I suggest that puts the ball in the government’s court,” Dunham said. “It has full control to evaluate which is the best course for the United States to take: continue with the prosecution, or avoid the damage that they feel they’re going to suffer to their intelligence operation.” Wilkins immediately interjected, “Should the government be put to that choice because it has responsibility to do both?” Chertoff argued that the current dispute is outside CIPA’s purview, because it involves access to a witness, not to disclosure of classified information at trial. “Here, there is an actual desire to interfere with an ongoing military operation. . . . That goes far beyond the question of putting information in front of a jury,” Chertoff said. “I don’t think Congress expected that would be dealt with under CIPA.” In Brinkema’s March 10 order requiring the government to make Binalshibh available for video deposition, the judge suggests that the government “reconsider whether the civilian criminal courts are the appropriate fora in which to prosecute alleged terrorists captured in the context of an ongoing war.” Chertoff, for one, remains ardent in his conviction that civilian courts should play a role in fighting terrorism — and that criminal court remains the right setting for Moussaoui’s case. A military commission, Chertoff told the panel, would not solve “the dilemma between the government’s compelling need to fight a war to defend Americans and the equally compelling need to enforce the law against someone accused of the worst crime in American history.” He added, “There is no way to cut the Gordian knot here . . . by simply saying, ‘I’m just going to move this over to a military channel.’ “

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