Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings
proffered substitutions as possibly unreliable and inadequate to protect Moussaoui's Sixth Amendment right to compulsory process.
The government appealed the district court's order requiring the government to make three of the requested enemy combatant witnesses available for deposition to be conducted by remote video. The United States Court of Appeals for the Fourth Circuit affirmed the district court's holding that that the enemy combatants in question could be reached through judicial process (directed at their custodians) for the purpose of providing testimony and that their testimony would be relevant to the case, but reversed the order for depositions and the sanctions the court had imposed for the government's refusal to comply.[1] The appellate court held that substitutions for depositions could be prepared that would provide substantially the same ability to prepare a defense, although it agreed with some of the objections the district court had articulated regarding the government's proposed substitutions. The majority viewed the intelligence reports as possessing adequate indicia of reliability because they were produced through methods designed to produce accurate analyses of foreign intelligence.[2] Consequently, the court remanded the case to the district court with instructions to prepare substitutions for the deposition testimony by a process involving collaboration with the parties,[3] noting that adequate jury instructions would be necessary in some cases to permit the jury to assess the reliability of the evidence.
In the meantime, the district court revoked Moussaoui's pro se privilege for his continued submission of improper filings, some of which contained veiled or overt threats, political statements with no relevance to the case, attempts at communicating to persons overseas, and insulting language, despite repeated warnings that such conduct would result in sanctions. After the Supreme Court denied certiorari with respect to the appellate court's ruling on his right to depose enemy combatant witnesses in the custody of the United States, Moussaoui again decided, over his counsel's objections, to plead guilty as an apparent tactic to avoid the death penalty. After a hearing in which Moussaoui demonstrated to the court's satisfaction that he understood a guilty plea would result in forfeiting his right to appeal based on any violation of his constitutional
- ↑ United States v. Moussaoui, 382 F.3d 453, 456-57 (4th Cir. 2004) ("Moussaoui II"). In "Moussaoui I," 333 F.3d 509, 517 (4th Cir. 2003), the circuit court dismissed the appeal of the discovery order as unripe and remanded for the government to propose substitutions for the witness testimony similar to those available under CIPA. (CIPA applies to the production of documents during discovery but does not address witnesses). The district court imposed sanctions on remand after the government refused to make the enemy combatant witnesses available for deposition. The judge rejected the parties' proposal for an order of dismissal, the ordinary sanction under CIPA in cases in which the government declines to provide classified information the court has determined is necessary for the defense. Instead, she dismissed the death notice on the grounds that the witnesses could provide testimony that might preclude a jury from finding Moussaoui eligible for the death penalty. Because the testimony could exonerate Moussaoui of involvement in the September 11 attacks, the district court prohibited the government "from making any argument, or offering any evidence, suggesting that the defendant had any involvement in, or knowledge of, the September 11 attacks." United States v. Moussaoui, 282 F. Supp. 2d 480, 327 (E.D. Va. 2003). Evidence that would have been excluded under the order included cockpit voice recordings, video footage showing the collapse of the World Trade Center Towers, and photographs of victims.
- ↑ 382 F.3d at 487 n. 31. Judge Gregory noted in dissent that such information may be reliable for intelligence purposes and yet omit relevant information that might be helpful to the defense because such information was not deemed to have any actionable foreign intelligence value. Id. at 488, n. 6.
- ↑ As noted by a dissenting judge of the appellate panel, the procedures crafted by the majority deviate from CIPA procedures by having the district judge, rather than the government, prepare the substitutions for the potential testimony, arguably making the district court judge an advocate in the proceedings. 382 F.3d. at 484-85 (Gregory, J., concurring in part and dissenting in part).
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reported opinions.
Congressional Research Service14
