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The case against Zacarias Moussaoui has been stuck at a standstill for more than a year. And last week’s arguments before the 4th U.S. Circuit Court of Appeals offered few clues for how the courts can get it moving again. The federal prosecution of Moussaoui, the only person charged with conspiring in the Sept. 11, 2001, terrorist attacks, came to a halt in September 2002 when the defendant demanded to depose a captured al-Qaida operative whom the U.S. government had captured and was holding abroad. Moussaoui claimed the operative and others who were captured later would testify that he had nothing to do with the Sept. 11 attacks. But the government has refused to allow the depositions to go forward, saying that allowing access to the witnesses — whose identities and whereabouts are classified — risks national security. At the same time, the Justice Department has said it believes those very witnesses Moussaoui thinks could help his case would actually help secure a conviction and execution. “The prosecution, if they had their druthers, would very much like to call these witnesses,” said Deputy Solicitor General Paul Clement during the Dec. 3 arguments. Still, he added, the case is at a standstill because of overriding concerns stemming from the war on terrorism. “This is a situation, where for very important separation-of-powers imperatives, neither the prosecution nor the defense counsel has access in this interactive way to the witness,” Clement said. The 90-minute arguments in the Richmond-based circuit’s main courthouse featured a lengthy debate on the Sixth Amendment, separation of powers, and national security. And perhaps because this was the second trip the case has made to the 4th Circuit, the judges pushed the lawyers to talk about possible resolutions. Still, there was little unanimity in the questions posed by Chief Judge William Wilkins Jr. and Judges Karen Williams and Roger Gregory. Wilkins and Williams are both Republican appointees. President George W. Bush appointed Gregory, although President Bill Clinton had first nominated Gregory for the bench. Chief Judge Wilkins opened the questioning by trying to zero in on a fundamental legal principle at issue — the so-called compulsory process clause of the Sixth Amendment, which allows a federal judge to compel the appearance of a witness. Wilkins tried to strip the national security complications out of the Moussaoui case by posing a hypothetical question: Assume the United States built a prison in Mexico, he said. Could a judge compel the appearance of a pretrial detainee held in that prison if the detainee is not a U.S. citizen? No, Clement responded. “An alien abroad, in custody or not, is outside of the compulsory process clause.” Clement took a step further. Just because the government has captured people Moussaoui wants to depose doesn’t mean that Moussaoui gets to enjoy the “windfall” of their testimony. When Moussaoui defense counsel Frank Dunham Jr. took the podium, he likened what Clement termed a “windfall” to an accidental meeting of an exculpatory witness. “You’re talking to somebody in a bar, and the guy says, ‘I saw that. I saw what happened.’ � And all of a sudden you’ve got a witness you never thought you’d see or ever find.” Judge Williams said, “But if that fellow left the bar that night and you never saw him again, you’ve lost your witness.” “That’s right,” Dunham said. “I’ve lost my witness. I’ve got to get process on him somehow.” At which point, Chief Judge Wilkins jumped back in: “But if that witness were arrested and held in custody by the United States government for some offense in the United States, all of a sudden, you’d have that right.” Drawing on Clement’s argument, Wilkins noted a crucial difference between Dunham’s analogy and the Moussaoui case. If the witnesses the defense wants to depose had not been captured, Wilkins mused, Moussaoui could ask them to testify on his behalf-but a U.S. judge would have no jurisdiction over them and could not compel them to appear. Thus, Moussaoui wouldn’t gain the right to compel their testimony just because the government has taken them into custody. What if the U.S. government transferred the witnesses to a prison on U.S. soil? Wilkins asked during Clement’s rebuttal. In that case, Clement acknowledged, a judge likely would have the power to compel the witnesses to appear in court. But, he added, “You would still have the separation-of-powers concerns.” BALANCING ACT Judge Williams then brought the debate back to the practical challenge posed by the Moussaoui case: How should a judge decide whether to compel testimony in the face of national security concerns? Clement’s answer was simple: balance national security risk with Moussaoui’s due process rights. Defense counsel Dunham essentially agreed with his adversary that balancing a fair trial with national security is the core issue. But the differences between the two sides lie in how to strike the balance in this case. And it’s a stark divide. In the questioning, the judges seemed most interested in trying to find a middle ground. For both Chief Judge Wilkins and Judge Gregory, balancing the national security concerns with Moussaoui’s due process rights led straight to the matter of substitutions. So-called substitutions have been the focus of the fight between the defense and prosecution for the past year. In trying to craft a compromise, U.S. District Judge Leonie Brinkema asked both sides to suggest alternatives to live testimony by witnesses. She found the offered alternatives insufficient. She then ordered the government to produce the witnesses instead. When the government refused to do so, Brinkema handed down sanctions. She told prosecutors they could make no mention of Sept. 11 at a trial and could not seek the death penalty. The government appealed, leading to last week’s arguments. Chief Judge Wilkins and Judge Gregory wanted to know if Brinkema might be able to devise an acceptable alternative that would protect national security and Moussaoui’s right to a fair trial, while also letting prosecutors pursue their Sept. 11 conspiracy allegations and the death penalty. In answer, Deputy SG Clement said he believes Brinkema can “fine tune” a compromise but that the government must author it. He cited the Classified Information Procedure Act. Gregory, though, seized on an element of that process that might prove an insurmountable hurdle in the Moussaoui case. Even under CIPA, which gives prosecutors wide berth, the trial judge still must safeguard the defendant’s right to a fair trial by ensuring access to exculpatory evidence. And if the attorney general still disagrees, the judge’s only recourse is to impose sanctions. And that would bring United States v. Moussaoui right back where it is today.

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