What the Asterisks Can't Hide:
Problems with the Fourth Circuit's Opinion in the Moussaoui Case

By JOANNE MARINER
Monday, Apr. 26, 2004

Those who like word-guessing games might enjoy the opinion that the U.S. Court of Appeals for the Fourth Circuit handed down last week in the Moussaoui case. Its text is interrupted in several dozen places with sets of asterisks -- **** -- that substitute for classified information that has been excised.

The deletions add a certain atmospherics to the opinion, reminding the reader that the case is about terrorism and national security. Zacarias Moussaoui, the defendant, is an admitted member of Al Qaeda. He was arrested in August 2001, while enrolled in flight training, having raised his instructors' suspicions by his single-minded interest in training on 747 commercial jet simulators that were ill-suited to his limited flying abilities. He now faces capital charges of conspiring in the September 11 terrorist attacks.

What has slowed down the prosecution considerably is the fact that the U.S. has arrested a number of high-level Al Qaeda operatives who, it seems likely, would offer exculpatory testimony in Moussaoui's defense. Moussaoui argues that these men can attest to the fact that he had no knowledge of the September 11 conspiracy.

The question on appeal to the Fourth Circuit was whether the defendant's Sixth Amendment right to "compulsory process for obtaining witnesses in his favor" requires the government to allow Moussaoui to put these detainees' testimony before the jury that will hear his case.

Unmentioned yet lurking in the background of the Fourth Circuit's newly-issued opinion are a couple of essential considerations. One is that if the federal case against Moussaoui falls apart, there is little doubt but that the defendant will be brought to trial before a military commission. The second is that the detainees to whom Moussaoui seeks access are being held in an extraordinary, extra-legal limbo, and neither the district court nor the Fourth Circuit has any way of monitoring their treatment.

Solomonic Justice

The Fourth Circuit's newly-issued opinion is not a clear win for Moussaoui or for the government. Issued by a divided court, as part of a complex package that includes two partially dissenting and partially concurring opinions, the opinion affirms Moussaoui's right to the detainees' testimony but also defers markedly to the government's stated security concerns.

Rather than allowing Moussaoui's lawyers to depose the detained Al Qaeda operatives via remote video hookup -- or, as would normally be the case, to question them at trial before the jury -- the Fourth Circuit has ordered the crafting of written statements that set out the testimony that the witnesses would likely have given.

In other words, while purporting to uphold the constitutional principle of access to exculpatory witnesses, the court has, in practice, barred the defendant from actually exercising that right. The key pending question now is whether the parties will, under judicial pressure, manage to hammer out a negotiated substitute that protects the core interests behind the right.

In its call for written statements instead of depositions, the Fourth Circuit reiterated an idea that it first proposed a year ago. In an order issued in April 2003, the Fourth Circuit had told the district court, which had been requesting the government to permit a video deposition of the detainees, to give the government the opportunity to propose written substitutions. It had emphasized, in advising this alternative, that the district court should assess whether the substitutions would "provide the defendant with substantially the same ability to make his defense" as would the depositions.

What happened subsequently is that the written substitutions offered by the government did not satisfy this criterion. Indeed, as the district court ruled last year, the substitutions were unreliable, incomplete and inaccurate. They could not, in the court's considered view, serve as reasonable stand-ins for witness testimony.

Essentially, what the Fourth Circuit's opinion does now is tell the district court, the government, and Moussaoui to try harder to reach a compromise. To assist this process, its recent opinion goes a step further than its earlier order in describing how the substitutions should be drafted.

The court explains, specifically, that defense counsel should review classified summaries made from the interrogation of the detained Al Qaeda suspects and select excerpts from those summaries that they want to see admitted at trial. The government should, next, review those excerpts and suggest additional material, and the district court should, based on the parties' submissions, take charge of the production of the final written product.

The Military Option

Two factors, neither of which was mentioned by the Fourth Circuit, will continue to affect the progress of the case. The first is that the alternative to the current federal prosecution is a trial before a military commission. For various overlapping reasons, the possibility now seems less urgent than it once appeared (the planned commissions have yet to start functioning, and they now await the Supreme Court's ruling in the Guantanamo case, not to mention the pending federal suit over their rules).

But it remains clear that the option of Moussaoui's transfer to military custody will continue to affect the behavior of all of the actors in this case, from Moussaoui's legal counsel to the judges in charge of the proceedings. Faced with the possibility of being declared "enemy combatants," defendants in other federal terrorism prosecutions have accepted plea bargains. In the present case, the military alternative will most likely encourage defense counsel to agree to less-than-optimal written substitutes for witness testimony.

It will also encourage the courts, to the extent they believe that terrorism prosecutions belong in the civilian justice system, to continue to bend the rules in the government's favor. (Already, the district court implicitly acknowledged these considerations last year when it exercised its discretion not to dismiss the indictment against Moussaoui when the government flouted its deposition orders. Its call for the case to be resolved in "an open and public forum" made its views fairly clear.)

And, most of all, the military option will encourage the government to be intransigent in its demands in the case. As long as the government has no reason to fear the indictment's dismissal as a sanction -- as long as it believes that trial before a military commission would be an equally viable, or even preferable option -- it has no reason to compromise with defense counsel, or even to comply with the rulings of the district court.

The Hidden Detainees

The second important consideration involves the detainees to whom Moussaoui seeks access. These men, whom the government has deemed enemy combatants, are not detained in military installations on U.S. soil, like José Padilla and a couple of others, nor are they held on Guantanamo. Rather, they are held in undisclosed locations abroad -- on aircraft carriers, or perhaps on the British island of Diego Garcia -- outside of the law and beyond judicial scrutiny.

Next to nothing is known about the detainees -- not where they are held, nor how they are treated, nor what, in the long run, will become of them. Indeed, as the district court pointed out in an opinion last year, the government takes the position that "anything" that concerns the detainees is classified information. Even their names have been excised from the courts' opinions, though they are well known to the press: Ramzi bin al-Shibh, Khalid Sheikh Mohammed, and Mustafa Ahmed al-Hawsawi.

Excised, as well, from the Fourth Circuit's opinion is any mention of the word "interrogation" and its variants, although a quick read though the opinion reveals the word's frequent silhouette. The government warns, for example, against disrupting "its detention **** of the enemy combatant witnesses." (Replace the asterisks with "and interrogation ") It states that any "interruption **** will have devastating effects" on its ability to gather information from them. (Substitute "of their interrogation ") And so on.

Why is this word so important? Because it reveals a central and worrying problem that clouds the entirety of the Fourth Circuit's proposed approach. In its ruling, the Fourth Circuit ordered the district court to instruct the jury regarding the reliability of the written substitutes that will be provided in lieu of the detainees' testimony. The jury should be informed, the Fourth Circuit has specified, that the substitutes "are derived from statements obtained under conditions that provide circumstantial guarantees of reliability."

But in reality there are no such guarantees, as the district court may have pointed out when it ruled last year that the government's proposed substitutes were unreliable. (Unfortunately most of this portion of the district court's opinion was censored -- again, because it discussed classified information -- so one can only guess at the court's reasoning.)

Indeed, the little information that is known about the treatment of these hidden detainees suggests the Fourth Circuit's assertion is precisely wrong: that rather than guaranteeing the statements' reliability, the conditions of the men's detention render their statements suspect.

Based on interviews with unnamed U.S. officials, several newspapers have published credible descriptions of how the detainees have been abused. The sources detail physical and psychological "stress and duress" techniques to which the detainees have been subject, including being held blindfolded or hooded, bound in awkward painful positions, and deprived of sleep for prolonged periods.

Considering, in addition, that some of the detainees have been held by their interrogators in extra-legal limbo for more than two years, without a moment's access to any neutral arbiter, it is hard to understand how the Fourth Circuit could rule as it did.

A First Encounter with Legality

If Moussaoui's legal counsel was allowed to question the hidden detainees, it would go a long way toward securing the defendant's Sixth Amendment right to the testimony of exculpatory witnesses. Perhaps equally important, it would be the first encounter with lawyers, the law, and legal procedures that the detainees have had since they entered U.S. custody.

Unfortunately, the U.S. government will accept neither of these options. The only alternatives it seems willing to consider range from secrecy to more secrecy, and restricted rights to more restricted rights.


Joanne Mariner is a FindLaw columnist and human rights attorney.

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