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Zacarias Moussaoui could be the last al Qaeda terrorist ever to face criminal charges in federal court. On Dec. 3, the U.S. Court of Appeals for the 4th Circuit will hear oral arguments in the case of Moussaoui, an alleged conspirator in the Sept. 11, 2001, terrorist attacks. If the court rules in Moussaoui’s favor, the government has warned that it may be unable to bring future terrorism cases in federal court. At issue is whether the government can fairly prosecute Moussaoui on death penalty charges that he conspired in the Sept. 11 attacks without allowing him access to potentially exculpatory witnesses. The government says it can. The defense says such a precedent would pervert the criminal justice system. The Dec. 3 arguments will pave the way for a possible U.S. Supreme Court showdown on the balance of powers and could determine the fate of the self-proclaimed al Qaeda terrorist. If all this sounds familiar, it’s because the two sides argued the matter once before. And as it did on June 3, the Richmond-based appeals court has divided the arguments into two sessions — the first dealing only with public information, and the second dealing with classified information, to be held behind closed doors. In the morning, U.S. Deputy Solicitor General Paul Clement will argue against Federal Public Defender Frank Dunham Jr. In the afternoon session, Clement will square off against Middleburg, Va., solo practitioner Edward MacMahon Jr. The original appeal stemmed from Moussaoui’s demand for access to an enemy combatant captured by the United States and held overseas for a pretrial deposition. Moussaoui claims the witness would offer evidence that will prove he had no material involvement in the Sept. 11 attacks. The trial judge, Leonie Brinkema of U.S. District Court for the Eastern District of Virginia in Alexandria, ordered the deposition by time-delay video transmission. The government appealed her order. A three-judge panel comprising Chief Judge William Wilkins Jr. and Judges Roger Gregory and Karen Williams heard the June arguments. In a June 26 opinion they ruled unanimously that Brinkema’s order was not ripe for review and stated that the government could appeal later if Brinkema levied a sanction for the government’s refusal to comply. But the panel acknowledged the importance of the case and even said it was “prepared at this time to rule on the substantive questions before us.” Since then, Brinkema ordered the government to give Moussaoui access to at least one and probably two more enemy combatants for pretrial depositions. (Their number and identities are classified.) She rejected a narrative summary the government proposed as a substitute for the deposition, calling it “inaccurate and misleading.” And she denied Moussaoui’s requests for access to at least one other witness, according to court documents. On Sept. 10, the government said it would not accede to Brinkema’s deposition order. Brinkema then asked for briefing on sanctions. At the time, Moussaoui was representing himself, while a half-dozen court-appointed attorneys worked on his behalf as standby counsel. Judge Brinkema revoked his pro se status on Nov. 14. The 4th Circuit has accepted pro se pleadings from him, but is requiring him to be represented by counsel. As a sanction, Moussaoui and his attorneys asked Brinkema to dismiss the case. The government wrote that it did not oppose the defense’s contention “that the appropriate action in this case is to dismiss the indictment.” Instead, Brinkema crafted a sanction no one had predicted: She took the death penalty off the table and forbade mention at trial of Moussaoui’s involvement in or knowledge of the Sept. 11 attacks. “It would simply be unfair to require Moussaoui to defend against such prejudicial accusations while being denied the ability to present testimony from witnesses who could assist him in contradicting those accusations,” Brinkema wrote. THE BRINKEMA EFFECT Although the salient issues in the case are the same as they were in June, Brinkema’s sanctions could have a significant effect on the way the 4th Circuit panel approaches the issue. “Brinkema correctly responded to the government’s decision not to make these witnesses available,” says Kathleen Clark, a professor at Washington University School of Law in St. Louis. Clark co-wrote the D.C.-based Center for National Security Studies’ amicus brief filed in the case last week. In crafting sanctions that seek to balance competing interests, Clark says, “Judge Brinkema found a way to protect the government’s asserted national security interests in holding these government detainees incommunicado while protecting the public’s interest in law enforcement and also protecting the constitutional interest according this defendant a fair trial.” The government argues that a criminal defendant such as Moussaoui has no right to obtain direct testimony from aliens arrested and held overseas as enemy combatants. It claims that Brinkema crossed the line separating the powers of the judicial and executive branches when she ordered the video depositions; that she incorrectly concluded that the detainees would likely provide exculpatory information; and that she erred when she found that the government’s summaries of the witnesses’ statements were inadequate. If the 4th Circuit sides with Moussaoui, the government warns, any al Qaeda terrorists arrested and charged in Article III courts in the future would wield this “unprecedented” extension of the Sixth Amendment like a weapon. “[A]s more and more high-level leaders of al Qaeda are detained by our forces,” the government writes, “claims identical to the one in this case, if permitted, would undoubtedly become terrorist defendants’ favorite trump card, for they would guarantee either the hobbling of a prosecution or the hobbling of interrogation efforts directed at al Qaeda leaders overseas.” Because of the overwhelming national security interest in keeping the witnesses sequestered and given the court’s lack of authority to summon them, the case should proceed as if the witnesses do not exist, the government says. In an apparent response to the 4th Circuit panel’s queries in June, the government argues that if the appeals court finds that Moussaoui’s constitutional rights require his access to the witnesses’ exculpatory statements, the summaries the government has provided of what the witnesses would say are wholly adequate. “To be sure, the evidence may not be available in precisely the form — direct testimony — the defendant would prefer,” the government asserts. “But, as cases involving alien witnesses or witnesses who invoke their Fifth Amendment privilege make clear . . . while the Due Process Clause ensures fundamental fairness, it does not require the government to ensure that all evidence the defendant wants is placed before the jury.” The defense counters that the government waived its right to complain about Brinkema’s sanction when it declined to object to the harsher proposed sanction of dismissal. In its effort to buttress Brinkema’s ruling, the defense marshals the 4th Circuit’s opinion in the case of detained enemy combatant and U.S. citizen Yaser Esam Hamdi. Specifically, the defense uses Hamdi to rebut the government’s argument that the 1950 Supreme Court case Johnson v. Eisentrager renders Brinkema’s deposition order an intrusion on the executive branch’s power to protect national security. In Eisentrager, the high court held that 21 German nationals convicted of war crimes by a U.S. military tribunal following World War II had no access to U.S. federal courts. “The signal distinction between this capital case and Eisentrager, is that the latter is a civil habeas corpus case where petitioners initiated the litigation seeking to invoke the jurisdiction of the Article III courts to second-guess military decisions relating to their detention,” the defense writes. “This Court, in reversing the lower court in Hamdi v. Rumsfeld for failing to appropriately consider separation-of-powers principles similar to those in Eisentrager, recognized that such principles apply quite differently in a civil habeas corpus case involving enemy combatants captured abroad than they do in a criminal prosecution.” By its own count, the government has won convictions of more than 145 terrorists thus far. But if the 4th Circuit affirms Brinkema’s decision, the government threatens, it “would force the Executive to choose between either preventing future attacks through intelligence gathering or prosecuting completed attacks in the criminal justice system.”

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