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WASHINGTON — The case is technically known as United States v. Zacarias Moussaoui. But at this stage in the prosecution of the alleged Sept. 11 conspirator, it might be more aptly renamed Brinkema v. United States. Last week, a turf battle between U.S. District Judge Leonie Brinkema and the U.S. government overshadowed the original case. Moussaoui is on trial for his life, but in this fight, he is almost irrelevant. At the heart of the battle is the power of a judge to demand due process in her court under federal law versus the power of the administration to maintain an impenetrable barrier between its wartime activities and the reach of the bench. “The two sides have hardened their positions,” observes James Orenstein, a partner at Baker & Hostetler in New York and former high-level Justice Department official in the Clinton administration. “I don’t see any way out of it.” From the outset, Judge Brinkema of the U.S. District Court for the Eastern District of Virginia has warned prosecutors that if the government wants to try Moussaoui in civilian court, it must abide by the rules. But the ongoing war on terror, combined with a defendant who insists on representing himself in a case rife with national security concerns, does not easily jibe with the civilian courts and their foundation of constitutional rights. Brinkema, who sits in Alexandria, Va., had ordered the government to allow Moussaoui to depose a key witness currently held overseas in U.S. military custody. On July 14, almost a year after Moussaoui attempted to plead guilty, Attorney General John Ashcroft refused to comply with Brinkema’s edict, stating that such an interview would result in the “disclosure of classified information compromising national security.” But the government’s reason for refusal is academic: Moussaoui has already had access to the very classified information the deposition might reveal. The government gave it to him on April 25 in the form of a proposed substitution for the deposition — a narrative purported to contain anything the enemy combatant might say in a deposition. Moussaoui also received a limited security clearance to review the materials. According to court documents, the narrative included statements both detrimental and helpful to Moussaoui’s defense. In addition, there is little chance that the deposition that Brinkema ordered could result in the disclosure of additional classified information. The deposition would be conducted by satellite transmission with a time-delay mechanism. Brinkema directed that a time-delay mechanism be used in the transmission so that intelligence officials could interrupt the transmission at any time, according to a brief filed with the Fourth Circuit U.S. Court of Appeals by Moussaoui’s standby counsel. The classified information appears to be a red herring in an old-fashioned separation of powers struggle. In February, the government appealed Brinkema’s order calling for the deposition. The Fourth Circuit dismissed the appeal for lack of jurisdiction and denied a petition for rehearing en banc. In its petition for the en banc rehearing, the government wrote that Brinkema’s order “interferes with core authorities assigned to the Executive Branch under the Constitution.” And in June 3 oral arguments before an appellate panel, then-DOJ Criminal Division chief Michael Chertoff put it most plainly. A scenario in which the court can order the military to produce an enemy combatant for a deposition would “bump up against the limitation of the separation of powers.” In other words, Chertoff argued, a judge can’t force Ashcroft to produce the witness. But Brinkema insists that a vital witness in the custody of the executive branch must be made available. “When the government elected to bring Moussaoui to trial in this civilian tribunal, it assumed the responsibility of abiding by well-established principles of due process,” Brinkema wrote in a March 10 memorandum opinion. “To the extent that the United States seeks a categorical, ‘wartime’ exception to the Sixth Amendment, it should reconsider whether the civilian criminal courts are the appropriate forum in which to prosecute alleged terrorists captured in the context of an ongoing war.” Of course, the choice of venue came at a particularly fraught time. On Nov. 13, 2001, President Bush signed an order establishing military tribunals for trying foreign nationals charged with terrorism. An outcry of criticism from all points on the ideological spectrum met Bush’s announcement. Less than a month later, Moussaoui was indicted in the Eastern District. Prosecutors were working on the Moussaoui case for months before that with a view to a federal court trial. Chertoff, now an appellate judge on the Third Circuit, championed bringing the case against Moussaoui in the U.S. courts. Last week Brinkema asked both sides for suggestions as to sanctions for the government’s noncompliance with her order to produce the witness. If she finds none of them tenable, she may choose the ultimate sanction and dismiss the case. The parties have until Monday to suggest sanctions that could range from striking overt acts from the indictment to eliminating the death penalty. Once Brinkema has imposed a sanction, the government may appeal to the Fourth Circuit, which indicated in a panel opinion that it knows how it is likely to rule. Of course, the government could always forgo the appeal, transfer Moussaoui to military custody as an enemy combatant, and try him before a military tribunal. One federal prosecutor says, however, that the government will push the Moussaoui case in federal court as far as it can go, suggesting that the government is not going to change tracks midcourse and bring Moussaoui before a military court. “It could be that the Defense Department and DOJ have already made their deal,” says one observer, “with the Defense Department saying, ‘You can keep the case, DOJ, as long as you keep him in custody and get a conviction.’” Richard Sauber, a D.C. partner at Fried, Frank, Harris, Shriver & Jacobson and a former DOJ official, says that if the ultimate goal for the government is putting Moussaoui away, expedience obliges sacking the criminal case. “At this point, I think they could just forget about trying the case before Brinkema,” he says. “They can say they made a mistake and can go to the military tribunal.” Because the government can appeal any sanction, how the Fourth Circuit would rule on an appeal is the question of the day. The panel that heard arguments June 3 comprised Chief Judge William Wilkins Jr. and Judges Karen Williams and Roger Gregory. The panel represents the ideological spectrum of the full Fourth Circuit — with Williams representing the more conservative end, Wilkins in the middle, and Gregory at the less conservative end. In its splintered full-court order denying en banc review, the judges held their cards close to their chests, though Judge J. Michael Luttig repeatedly referred to Brinkema’s order as “extraordinary.” But in a decision it issued in the enemy combatant case of Yaser Esam Hamdi, the Fourth Circuit wrote, “The duty of the judicial branch to protect [individual rights] does not simply cease whenever our military forces are committed by the political branches to armed conflict. . . . Rather, certain protections guaranteed by the Bill of Rights are triggered when an individual is charged with a crime.” Orenstein says he wouldn’t be surprised if the Fourth Circuit were to say, “‘We think there’s a middle ground.’” Moussaoui’s court-appointed counsel, Frank Dunham Jr., refuses to speculate as to how the Fourth Circuit might rule. “To me, this case will be a triumph if we choose rule of law over the exigency of the situation,” says Dunham, the federal public defender for the Eastern District. “We had 3,000 deaths on 9-11, and I’m hoping we can get through this litigation without the Constitution becoming another casualty.” Moussaoui prosecutor Robert Spencer of the Eastern District of Virginia declined comment on the case. The Fourth Circuit has faced a similar problem before. In 1989, at the height of the Iran-Contra investigations, Joseph Fernandez, a former Central Intelligence Agency chief of station in San Jose, Costa Rica, was indicted for making false statements. Now-Chief Judge Claude Hilton of the Eastern District of Virginia dismissed the case with prejudice because the attorney general barred the release of classified information vital to Fernandez’s defense. The Fourth Circuit affirmed. For Moussaoui, in practical terms, what happens next may not much matter. It is beyond the realm of possibility that the government will allow him to go free. The French national regularly invokes his prayer for the destruction of the United States in court pleadings. Moussaoui also rails against what he terms a “death show trial.” His pleadings reveal that he thinks he is caught in a kangaroo court. But, in fact, his case may redraw the line that divides the political and judicial branches of the government. Siobhan Roth is a reporter with Legal Times , a Recorder affiliate based in Washington, D.C.

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