                                                      Volume 1 of 2

                            PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,               
                 Plaintiff-Appellant,
                 v.
ZACARIAS MOUSSAOUI, a/k/a Shaqil,
a/k/a Abu Khalid al Sahrawi,
                Defendant-Appellee,              No. 03-4792


CENTER FOR NATIONAL SECURITY
STUDIES,
        Amicus Supporting Appellee.
                                        
            Appeal from the United States District Court
         for the Eastern District of Virginia, at Alexandria.
                Leonie M. Brinkema, District Judge.
                            (CR-01-455)

                       Argued: December 3, 2003

                      Decided: September 13, 2004

       Before WILKINS, Chief Judge, and WILLIAMS and
                 GREGORY, Circuit Judges.



Affirmed in part, vacated in part, and remanded by published opinion.
Chief Judge Wilkins announced the judgment of the court and wrote
an opinion, in which Judge Williams concurs, and in which Judge
Gregory concurs except as to Part V.C. Judge Williams wrote a con-
2                     UNITED STATES v. MOUSSAOUI
curring opinion. Judge Gregory wrote an opinion concurring in part
and dissenting in part.


                              COUNSEL

ARGUED: Paul D. Clement, Deputy Solicitor General, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellant. Frank Willard Dunham, Jr., Federal Public Defender,
Alexandria, Virginia; Edward Brian MacMahon, Jr., Middleburg, Vir-
ginia, for Appellee. ON BRIEF: Christopher A. Wray, Assistant
Attorney General, Patrick F. Philbin, Associate Deputy Attorney Gen-
eral, Jonathan L. Marcus, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C.; Paul J. McNulty, United States Attor-
ney, Robert A. Spencer, Assistant United States Attorney, Kenneth
M. Karas, Assistant United States Attorney, David J. Novak, Assis-
tant United States Attorney, Alexandria, Virginia, for Appellant. Ger-
ald T. Zerkin, Jr., Senior Assistant Federal Public Defender, Kenneth
P. Troccoli, Assistant Federal Public Defender, Anne M. Chapman,
Assistant Federal Public Defender, Alexandria, Virginia, Alan H.
Yamamoto, Alexandria, Virginia, for Appellee. Kathleen Clark,
Joseph Onek, CENTER FOR NATIONAL SECURITY STUDIES,
Washington, D.C., for Amicus Curiae.


                               OPINION

WILKINS, Chief Judge:

   The Government appeals a series of rulings by the district court
granting Appellee Zacarias Moussaoui access to certain individuals1
("the enemy combatant witnesses" or "the witnesses") for the purpose
of deposing them pursuant to Federal Rule of Criminal Procedure 15;
rejecting the Government’s proposed substitutions for the depositions;
    1
   The names of these individuals are classified, as is much of the infor-
mation pertinent to this appeal. We have avoided reference to classified
material to the greatest extent possible. Where classified information has
been redacted, it has been noted by brackets.
                      UNITED STATES v. MOUSSAOUI                          3
and imposing sanctions for the Government’s refusal to produce the
witnesses. We are presented with questions of grave significance—
questions that test the commitment of this nation to an independent
judiciary, to the constitutional guarantee of a fair trial even to one
accused of the most heinous of crimes, and to the protection of our
citizens against additional terrorist attacks. These questions do not
admit of easy answers.

   For the reasons set forth below, we reject the Government’s claim
that the district court exceeded its authority in granting Moussaoui
access to the witnesses. We affirm the conclusion of the district court
that the enemy combatant witnesses could provide material, favorable
testimony on Moussaoui’s behalf, and we agree with the district court
that the Government’s proposed substitutions for the witnesses’ depo-
sition testimony are inadequate. However, we reverse the district
court insofar as it held that it is not possible to craft adequate substitu-
tions, and we remand with instructions for the district court and the
parties to craft substitutions under certain guidelines. Finally, we
vacate the order imposing sanctions on the Government.

                                     I.

                      A. Background Information

   On September 11, 2001, members of the terrorist organization al
Qaeda2 hijacked three passenger aircraft and crashed them into the
Pentagon and the World Trade Center towers in New York. A fourth
plane, apparently destined for the United States Capitol, crashed in
Pennsylvania after passengers wrested control from the hijackers. The
attacks resulted in the deaths of over 3000 men, women, and children.

  Moussaoui was arrested for an immigration violation in mid-
August 2001 and, in December of that year, was indicted on several
charges of conspiracy related to the September 11 attacks. In July
2002, the Government filed a superceding indictment charging Mous-
saoui with six offenses: conspiracy to commit acts of terrorism tran-
  2
   The name "al Qaeda" is transliterated from Arabic. Several spellings
may be acceptable for transliterated terms; this opinion adopts the spell-
ing conventions employed by the district court and the parties.
4                     UNITED STATES v. MOUSSAOUI
scending national boundaries, see 18 U.S.C.A. § 2332b(a)(2), (c)
(West 2000); conspiracy to commit aircraft piracy, see 49 U.S.C.A.
§ 46502(a)(1)(A), (a)(2)(B) (West 1997); conspiracy to destroy air-
craft, see 18 U.S.C.A. §§ 32(a)(7), 34 (West 2000); conspiracy to use
weapons of mass destruction, see 18 U.S.C.A. § 2332a(a) (West 2000
& Supp. 2003); conspiracy to murder United States employees, see 18
U.S.C.A. §§ 1114, 1117 (West 2000 & Supp. 2003); and conspiracy
to destroy property, see 18 U.S.C.A. § 844(f), (i), (n) (West 2000 &
Supp. 2003). The Government seeks the death penalty on the first
four of these charges.

   According to the allegations of the indictment, Moussaoui was
present at an al Qaeda training camp in April 1998. The indictment
further alleges that Moussaoui arrived in the United States in late Feb-
ruary 2001 and thereafter began flight lessons in Norman, Oklahoma.
Other allegations in the indictment highlight similarities between
Moussaoui’s conduct and the conduct of the September 11 hijackers.
Each of the four death-eligible counts of the indictment alleges that
the actions of Moussaoui and his coconspirators "result[ed] in the
deaths of thousands of persons on September 11, 2001." E.g., J.A.
(03-4162) 108.3

                   B. Events Leading to this Appeal

  Simultaneously with its prosecution of Moussaoui, the Executive
Branch has been engaged in ongoing efforts to eradicate al Qaeda and
    3
    The materials before us include numerous joint appendices from both
this and the previous appeal. We will cite such materials as follows. An
appendix will be cited either J.A., to denote an unclassified appendix, or
J.A.C., to denote a classified appendix. This designation will be followed
by a parenthetical reference to the docket number of the appeal to which
the appendix relates. For example, a reference to page 26 the unclassified
joint appendix from the previous appeal would be denoted "J.A. (03-
4162) 26"; a reference to page 300 of the classified appendix from the
current appeal would be denoted "J.A.C. (03-4792) 300." References to
supplemental appendices will include the designation "Supp."—for
example, "Supp. J.A.C. (03-4162) 25." The Government’s classified
appendix on rehearing will be cited as "J.A.C. (03-4792/Reh’g)," with
the appropriate page number following the parenthetical.
                     UNITED STATES v. MOUSSAOUI                       5
to capture its leader, Usama bin Laden. These efforts have resulted in
the capture of numerous members of al Qaeda, including the wit-
nesses at issue here: [         ]
("Witness A"),
[                  ] ("Witness B"), [
          ] and [             ] ("Witness C"), [


            ]

   Witness      A      was     captured       [        ].     Shortly
thereafter, Moussaoui (who at that time was representing himself in
the district court) moved for access to Witness A, asserting that the
witness would be an important part of his defense. Moussaoui’s
motion was supported by then-standby counsel, who filed a motion
seeking pretrial access to Witness A and a writ of habeas corpus ad
testificandum to obtain Witness A’s trial testimony. The Government
opposed this request.4

   The district court conducted a hearing, after which it issued an oral
ruling granting access to Witness A ("the January 30 order"). The
court subsequently issued a memorandum opinion explaining its rul-
ing in greater detail. The district court concluded that Witness A
could offer material testimony in Moussaoui’s defense; in particular,
the court determined that Witness A had extensive knowledge of the
September 11 plot and that his testimony would support Moussaoui’s
claim that he was not involved in the attacks. At a minimum, the court
observed, Witness A’s testimony could support an argument that
Moussaoui should not receive the death penalty if convicted.

   The district court acknowledged that Witness A is a national secur-
ity asset and therefore denied standby counsel’s request for unmoni-
tored pretrial access and declined to order his production at trial. The
court also determined, however, that the Government’s national
  4
   Moussaoui and standby counsel also sought access to other al Qaeda
members accused of complicity in the 9/11 attacks. The district court
denied these requests on the basis that Moussaoui and standby counsel
had failed to demonstrate that these individuals could provide material,
admissible testimony. Those rulings are not before us.
6                     UNITED STATES v. MOUSSAOUI
security interest must yield to Moussaoui’s right to a fair trial.
Accordingly, the court ordered that Witness A’s testimony be pre-
served by means of a Rule 15 deposition. See Fed. R. Crim. P.
15(a)(1) (providing that court may order deposition of witness to pre-
serve testimony for trial "because of exceptional circumstances and in
the interest of justice"). In an attempt to minimize the effect of its
order on national security, the district court ordered that certain pre-
cautions be taken. Specifically, the court directed that the deposition
would be taken by remote video, with Witness A in an undisclosed
location and Moussaoui, standby counsel, and counsel for the Gov-
ernment in the presence of the district court, [

                                                                         ]

   While the Government’s appeal of the January 30 order was pend-
ing before this court, we remanded for the purpose of allowing the
district court to determine whether any substitution existed that would
place Moussaoui in substantially the same position as would a deposi-
tion. On remand, both the Government and standby counsel offered
proposed substitutions for Witness A’s deposition testimony.5 The
district court rejected the Government’s proposed substitutions, rea-
soning that (a) the information in the [       ] reports was unreliable,
and (b) the substitutions themselves were flawed in numerous
respects. Believing itself bound to consider only the Government’s
proposed substitutions, the district court did not review the substitu-
tions offered by standby counsel.
    5
    These substitutions were derived as follows. Those responsible
[                                     ] have recorded the witnesses’
answers to questions in [         ] reports. These highly classified reports
are intended for use in the military and intelligence communities; they
were not prepared with this litigation in mind. Portions of the [          ]
reports concerning Moussaoui and the September 11 attacks have been
excerpted and set forth in documents prepared for purposes of this litiga-
tion. These documents, deemed [            ] summaries" by the parties and
the district court, have been provided to defense counsel in conformance
with the Government’s obligations under Brady v. Maryland, 373 U.S.
63 (1963). The proposed substitutions are based on the [          ] summa-
ries.
                      UNITED STATES v. MOUSSAOUI                        7
   The proceedings on remand complete, we conducted oral argument
on June 3, 2003. Shortly thereafter, we dismissed the appeal as inter-
locutory. See United States v. Moussaoui (Moussaoui I), 333 F.3d
509, 517 (4th Cir. 2003). Upon receiving the mandate of this court,
the district court entered an order directing the Government to inform
the court whether it would comply with the January 30 order. On July
14, 2003, the Government filed a pleading indicating that it would
refuse to provide access to Witness A for the purpose of conducting
a deposition.

   On August 29, the district court entered an order ("the August 29
order") granting access to Witnesses B and C for purposes of conduct-
ing Rule 15 depositions of those witnesses. The order imposed the
same conditions as those applicable to Witness A. The court also
directed the Government to file any proposed substitutions for the
witnesses’ testimony by September 5, and it directed standby counsel
to file any response to the substitutions by September 12.

   On September 8, the district court rejected the Government’s pro-
posed substitutions without requiring any response from the defense.
The court stated that the Government’s proposed substitutions for the
deposition testimony of Witnesses B and C failed for the same rea-
sons as the Government’s proposed substitutions for the deposition
testimony of Witness A. Following the rejection of its proposed sub-
stitutions, the Government informed the court that it would not com-
ply with the August 29 order.

   The district court then directed the parties to submit briefs concern-
ing the appropriate sanction to be imposed for the Government’s
refusal to comply with the January 30 and August 29 orders. Standby
counsel sought dismissal but alternatively asked the district court to
dismiss the death notice. The Government filed a responsive pleading
stating that "[t]o present the issue most efficiently to the Court of
Appeals, and because [the Classified Information Procedures Act]
prescribes dismissal as the presumptive action a district court must
take in these circumstances, we do not oppose standby counsel’s sug-
gestion that the appropriate action in this case is to dismiss the indict-
ment." J.A.C. (03-4792) 487; see id. (asserting that "dismissal of the
indictment . . . is the surest route for ensuring that the questions at
issue here can promptly be presented to the Fourth Circuit").
8                    UNITED STATES v. MOUSSAOUI
   Noting that "[t]he unprecedented investment of both human and
material resources in this case mandates the careful consideration of
some sanction other than dismissal," J.A. (03-4792) 319, the district
court rejected the parties’ claims that the indictment should be dis-
missed. Rather, the court dismissed the death notice, reasoning that
Moussaoui had adequately demonstrated that the witnesses could pro-
vide testimony that, if believed, might preclude a jury from finding
Moussaoui eligible for the death penalty. Further, because proof of
Moussaoui’s involvement in the September 11 attacks was not neces-
sary to a conviction, and because the witnesses’ testimony, if
believed, could exonerate Moussaoui of involvement in those attacks,
the district court prohibited the government "from making any argu-
ment, or offering any evidence, suggesting that the defendant had any
involvement in, or knowledge of, the September 11 attacks." Id. at
327. In conjunction with this ruling, the district court denied the Gov-
ernment’s motions to admit into evidence cockpit voice recordings
made on September 11; video footage of the collapse of the World
Trade Center towers; and photographs of the victims of the attacks.

   The Government appealed, attacking multiple aspects of the rulings
of the district court.6

        C. Events Leading to Issuance of this Amended Opinion

   We issued our decision on April 22, 2004. See United States v.
Moussaoui, 365 F.3d 292 (4th Cir. 2004). Moussaoui thereafter
timely filed a petition for rehearing and suggestion for rehearing en
banc (the Petition). On May 12, the Government submitted a letter to
the court purporting to "clarify certain factual matters." Letter to Dep-
uty Clerk from United States Attorney at 1 (May 12, 2004) [hereinaf-
ter "Letter"]. In particular, the Government referred to pages 50-51 of
the classified slip opinion, where the court stated:
    6
   Shortly before we heard oral argument on this appeal, the district
court vacated its order granting Moussaoui’s request to represent himself
and appointed standby counsel as counsel of record. Accordingly, for the
remainder of this opinion we will follow our usual practice and refer to
Moussaoui and his attorneys collectively as "Moussaoui," except where
necessary for the sake of clarity.
                      UNITED STATES v. MOUSSAOUI                         9
      [




                                                                     ]

Slip op. at 50-51 (emphasis added);7 see id. at 55-56 [


                                                                          ]

  In response to the emphasized portion of the above quotation, the
Government stated that

      members of the prosecution team, including FBI Special
      Agents assigned to the September 11 and other related
      investigations, [
  7
   Citations to "Slip op." refer to the unredacted opinions of the court as
issued on April 22.
   [




                                                                          ]
10                    UNITED STATES v. MOUSSAOUI
           ] have provided [        ] information [
                                                                  ]
      consistent with the [                             ] desire to
      maximize their own efforts to obtain actionable information
      [       ]

Letter at 2.9 The Government went on to note, however, that "[a]ny
information or suggested areas of inquiry that have been shared
[                            ] have been used, like information
from numerous other sources, at the sole discretion [

        ] Id. at 3. The Government asserted that [



           ] Id.

   Based in part on the revelations in the May 12 letter, we directed
the Government to file a response to the Petition. In particular, we
directed the Government to provide answers to the following ques-
tions:

      (1) Why was the information in the May 12 Letter not pro-
          vided to this court or the district court prior to May 12?

      (2) [


                                                                   ]

  9
   The Government also noted that it had been "‘privy to the [         ]
process,’" Letter at 1 (quoting slip op. at 51), [



                                                                       ]
                    UNITED STATES v. MOUSSAOUI                        11
    (3) [

                                                                  ]

    (4) [


                                         ] provided inculpatory
          or exculpatory information regarding Moussaoui?

    (5) In light of the information contained in the Letter and
        any other pertinent developments, would it now be
        appropriate to submit written questions to any of the
        enemy combatant witnesses?

    (6) What restrictions would apply to such a process and
        how should it be conducted?

    (7) If access is granted by written questions, is the Com-
        pulsory Process Clause satisfied?

    (8) If access is granted by written questions, what effect,
        if any, would Crawford v. Washington, 124 S. Ct. 1354
        (2004), have on such a process?

    (9) If circumstances have changed such that submission of
        written questions is now possible, when did the cir-
        cumstances change and why was neither this court nor
        the district court so informed at that time?

See United States v. Moussaoui, No. 03-4792 (4th Cir. May 13, 2004)
(order directing response to petition for rehearing and suggestion for
rehearing en banc). Underlying this order were concerns among the
panel members that members of the prosecution team may have [



            ] rendered the witnesses’ statements less reliable.
12                    UNITED STATES v. MOUSSAOUI
   The Government filed its response (the Response), supplemented
by a classified joint appendix and a classified ex parte appendix, on
May 19. Moussaoui filed a reply on May 24, in which, inter alia, he
raised concerns [
                                                                    ]

   We conducted a sealed oral argument regarding the petition for
rehearing on June 3, 2004. During a discussion [
       ] the panel asked the Government to provide documentation
[
                                                       ] On June
16, the Government filed, an ex parte document responding to this
request.10

D. Additional Facts Contained in the Government’s Submissions in
                     Response to the Petition

             1. Agent Zebley and the PENTTBOM Team

   The FBI team investigating the terrorist attacks of September 11,
2001 is known as "the PENTTBOM team." The Government consid-
ers these investigators to be part of the prosecution team. See Letter
at 2.

   One member of the PENTTBOM team, Special Agent Aaron Zeb-
ley, responded to the World Trade Center on September 11 and has
been involved in the investigation ever since. Agent Zebley’s particu-
lar duty for the PENTTBOM team has been to investigate the al
Qaeda cell in Hamburg, Germany [            ] Within the PENTTBOM
team, Agent Zebley is regarded as having special expertise and
knowledge regarding Witness A. Since November 2001 (one month
prior to Moussaoui’s indictment), Agent Zebley has been a case agent
for the Moussaoui prosecution.
  10
    On June 17, Moussaoui filed a letter objecting to the circumstances
under which this document was submitted to the court. Because this let-
ter was not styled as a motion, it is not clear to us that Moussaoui seeks
any relief from this court. To the extent he does seek relief, however, his
request is denied.
                   UNITED STATES v. MOUSSAOUI                 13
   The classified joint appendix submitted by the Government with
the Response includes [




  11
   [


                                                                ]
14       UNITED STATES v. MOUSSAOUI




                                      ]

          2. Oral Communications

     [
    UNITED STATES v. MOUSSAOUI   15




                                  ]

    3. Written Communications

[
16                       UNITED STATES v. MOUSSAOUI




                                                                          ]
                                                                          ]

                 4. Intelligence Community Use of Information

     [


         ]12 [

                                                             ] the
intelligence community is interested only in obtaining information
  12
    After the Petition was filed, news articles indicated that the National
Commission on Terrorist Attacks Upon the United States ("the 9/11
Commission") had submitted questions to be asked of unidentified al
Qaeda detainees. See Philip Shenon, "Accord Near for 9/11 Panel to
Question Qaeda Leaders," N.Y. Times, May 12, 2004, at A20 (reporting
a statement by the 9/11 Commission that it was "close to an agreement
with the Bush administration that would allow the panel to submit ques-
tions to captured Qaeda leaders who are believed to have been involved
in planning the attacks"); see also Associated Press, "Vice Chairman
Expects Responses to Written Questions Soon" (May 13, 2004), avail-
able at www.msnbc.msn.com/id/4972789 (stating that "[t]he Sept. 11
commission has submitted written questions about the 2001 attacks to al-
Qaida detainees and expects to receive responses soon"). [


                                                ] See Nat’l Comm’n on
Terrorist Attacks Upon the United States, Staff Statement No. 16, at 1
(released June 16, 2004) (stating that Commission had no "direct access"
to al Qaeda members but rather relied on written materials).
                      UNITED STATES v. MOUSSAOUI                        17
that has foreign intelligence value; the intelligence community is not
concerned with obtaining information to aid in the prosecution of
Moussaoui. [                                    ] not create special
[        ] reports for use by the prosecution; rather, the prosecution
and the PENTTBOM team receive the same reports that are distrib-
uted to the intelligence community at large. Information is included
in         these         reports        only          if       [
        ] the information to have foreign intelligence value.14

  [




          ]
J.A.C. (03-4792/Reh’g) 48-49.
   14
      The Government’s submissions indicate that those responsible for
[         ] the witnesses record and pass on only information [
         ] to have foreign intelligence value. Consequently, it is at least
possible, albeit unlikely, that one of the witnesses has imparted signifi-
cant exculpatory information related to Moussaoui that has not been
included [          ] If so, there may be a due process problem under
Brady v. Maryland, 373 U.S. 83 (1963). See United States v. Perdomo,
929 F.2d 967, 971 (3d Cir. 1991) (stating that prosecution is obligated
under Brady to disclose all exculpatory information "in the possession of
some arm of the state"). We need not consider this question, however,
as there is no evidence before us that the Government possesses exculpa-
tory material that has not been disclosed to the defense.
18                   UNITED STATES v. MOUSSAOUI
                                   II.

   Before turning to the merits, we consider the preliminary question
of our jurisdiction. The parties do not dispute that we have jurisdic-
tion over the present appeal. Nevertheless, because this is an interloc-
utory appeal, and in view of our prior dismissal for lack of an
appealable order, we will examine the question. See Snowden v.
Checkpoint Check Cashing, 290 F.3d 631, 635 (4th Cir.), cert. denied,
537 U.S. 1087 (2002).

   In the previous appeal, we concluded that we lacked jurisdiction
because (1) the Classified Information Procedures Act (CIPA), 18
U.S.C.A. App. 3 §§ 1-16 (West 2000 & Supp. 2003)—§ 7(a) of which
authorizes an interlocutory appeal from certain orders of the district
court regarding the disclosure of classified information—did not
apply; (2) the order of the district court was not a collateral order
appealable under Cohen v. Beneficial Industrial Loan Corp., 337 U.S.
541 (1949); and (3) mandamus jurisdiction was not appropriate. In the
present appeal, the Government asserts that this court has jurisdiction
pursuant to CIPA, the collateral order doctrine, and 18 U.S.C.A.
§ 3731 (West Supp. 2003). Because we conclude that jurisdiction for
this appeal lies under § 3731, we need not address the Government’s
other proposed bases for jurisdiction.

   Section 3731 allows the Government to pursue an interlocutory
appeal of certain pretrial rulings of the district court in a criminal
case. The first paragraph of § 3731 provides, in pertinent part, that
"[i]n a criminal case an appeal by the United States shall lie to a court
of appeals from a decision, judgment, or order of a district court dis-
missing an indictment or information . . . as to any one or more
counts, or any part thereof." 18 U.S.C.A. § 3731. The second para-
graph of the statute allows the United States to appeal a pretrial order
suppressing or excluding evidence, provided "the United States attor-
ney certifies to the district court that the appeal is not taken for pur-
pose of delay and that the evidence is a substantial proof of a fact
material in the proceeding." Id. Section 3731 requires courts to con-
strue its provisions "liberally" in order "to effectuate its purposes."
Id.; see United States v. Wilson, 420 U.S. 332, 337-39 (1975) (holding
that, in enacting § 3731, Congress intended to remove all barriers to
                     UNITED STATES v. MOUSSAOUI                       19
a Government appeal in a criminal case other than those imposed by
the Constitution).

   The district court sanctioned the Government for refusing to pro-
duce the enemy combatant witnesses for depositions by dismissing
the death notice and excluding specific items of evidence. Both
aspects of the sanction are appealable under § 3731—the latter under
the text of the statute itself, and the former by liberal construction of
the term "dismissing." See United States v. Quinones, 313 F.3d. 49,
56-57 (2d Cir. 2002) (holding dismissal of death notice appealable
under § 3731), cert. denied, 124 S. Ct. 807 (2003); United States v.
Bass, 266 F.3d 532, 535-36 (6th Cir. 2001) (same), rev’d on other
grounds, 536 U.S. 862 (2002) (per curiam); United States v. Acosta-
Martinez, 252 F.3d 13, 16-17 (1st Cir. 2001) (same); United States v.
Cheely, 36 F.3d 1439, 1441 (9th Cir. 1994) (same).

                                  III.

   With respect to the merits, the Government first argues that the dis-
trict court erred in ordering the production of the enemy combatant
witnesses for the purpose of deposing them. Within the context of this
argument, the Government makes two related claims. First, the Gov-
ernment asserts that because the witnesses are noncitizens outside the
territorial boundaries of the United States, there is no means by which
the district court can compel their appearance on Moussaoui’s behalf.
Second, the Government maintains that even if the district court has
the power to reach the witnesses, its exercise of that power is cur-
tailed by the reality that the witnesses are in military custody in time
of war, and thus requiring them to be produced would violate consti-
tutional principles of separation of powers. We address these argu-
ments seriatim.

                          A. Process Power

   The Sixth Amendment guarantees that "[i]n all criminal prosecu-
tions, the accused shall enjoy the right . . . to have compulsory pro-
cess for obtaining witnesses in his favor." U.S. Const. amend. VI. The
compulsory process right is circumscribed, however, by the ability of
the district court to obtain the presence of a witness through service
of process. See United States v. Greco, 298 F.2d 247, 251 (2d Cir.
20                    UNITED STATES v. MOUSSAOUI
1962) ("[T]he Sixth Amendment can give the right to compulsory
process only where it is within the power of the federal government
to provide it."). The Government maintains that because the enemy
combatant witnesses are foreign nationals outside the boundaries of
the United States, they are beyond the process power of the district
court and, hence, unavailable to Moussaoui.

   The Government’s argument rests primarily on the well established
and undisputed principle that the process power of the district court
does not extend to foreign nationals abroad. See United States v.
Theresius Filippi, 918 F.2d 244, 246 n.2 (1st Cir. 1990) ("The United
States has no subpoena power over a foreign national in a foreign
country."). Were this the governing rule, Moussaoui clearly would
have no claim under the Sixth Amendment. See United States v.
Zabaneh, 837 F.2d 1249, 1259-60 (5th Cir. 1988) ("It is well estab-
lished . . . that convictions are not unconstitutional under the Sixth
Amendment even though the United States courts lack power to sub-
poena witnesses, (other than American citizens) from foreign coun-
tries."). This is not the controlling principle, however.

   The Government’s argument overlooks the critical fact that the
enemy combatant witnesses are [                  ] of the United States
Government.15 Therefore, we are concerned not with the ability of the
district court to issue a subpoena to the witnesses, but rather with its
power to issue a writ of habeas corpus ad testificandum ("testimonial
writ") to the witnesses’ custodian. See 28 U.S.C.A. § 2241(c)(5)
(West 1994); United States v. Cruz-Jiminez, 977 F.2d 95, 99-100 (3d
Cir. 1992) (explaining that when a defendant asserts a Sixth Amend-
ment right to the testimony of an incarcerated witness, the district
court may obtain the witness’ testimony by issuing a testimonial
writ).

  In determining whether a district court possesses the power to serve
a writ of habeas corpus, the critical principle is that the writ is served
not upon the prisoner, but upon the custodian. See Braden v. 30th Jud.
Cir. Ct.,, 410 U.S. 484, 494-95 (1973) ("The writ of habeas corpus
  15
    The Government will neither confirm nor deny that the witnesses are
[           ] However, it concedes, and we agree, that for purposes of
this appeal we must assume that the witnesses are [                    ]
                      UNITED STATES v. MOUSSAOUI                       21
does not act upon the prisoner who seeks relief, but upon the person
who holds him in . . . custody."). As the Supreme Court has noted,
"The important fact to be observed in regard to the mode of procedure
upon this writ is, that it is directed to, and served upon, not the person
confined, but his jailer. It does not reach the former except through
the latter." Ex Parte Endo, 323 U.S. 283, 306 (1944) (internal quota-
tion marks omitted); see 28 U.S.C.A. § 2243 (West 1994) (providing
that a writ of habeas corpus "shall be directed to the person having
custody of the person detained"). Therefore, the relevant question is
not whether the district court can serve the witnesses, but rather
whether the court can serve the custodian.16

                        B. Person to be Served

  Ordinarily, a habeas writ must be served on a prisoner’s immediate
custodian—"the individual with day-to-day control over" the prisoner.
  16
     At oral argument, the Government described the capture of the
enemy combatant witnesses as "a windfall" from which Moussaoui
should not be entitled to benefit. We agree with the Government’s prem-
ise; there can be no doubt that, were it not for the capture of these wit-
nesses, Moussaoui could have no hope of obtaining their testimony. It
does not follow, however, that this fortuity should not inure to Mous-
saoui’s benefit. Indeed, the Government acknowledged that if the wit-
nesses were brought to the United States for reasons unrelated to
Moussaoui’s prosecution, the district court would have the power to
order their production. We are unable to discern why Moussaoui should
be entitled to the benefit of the second windfall but not the first.
  We also think that the Government’s "windfall" argument mistakenly
focuses on the ability of the district court to serve process on the wit-
nesses, rather than on the custodian. The district court has never had—
and does not now have—the power to serve process on the witnesses.
But, as explained in Part III.B, the district court has always had the
power to serve process on the custodian, [




                                                                         ]
22                   UNITED STATES v. MOUSSAOUI
Henderson v. INS, 157 F.3d 106, 122 (2d Cir. 1998); cf. Rumsfeld v.
Padilla, 124 S. Ct. 2711, 2720 (2004) ("In challenges to present phys-
ical confinement, we reaffirm that the immediate custodian, not a
supervisory official who exercises legal control, is the proper respon-
dent."). Here, however, the immediate custodian is unknown. Under
such circumstances, the writ is properly served on the prisoner’s ulti-
mate custodian. See Demjanjuk v. Meese, 784 F.2d 1114, 1116 (D.C.
Cir. 1986) (Bork, Circuit Judge, in chambers) (holding that a peti-
tioner properly named the Attorney General as the respondent in his
habeas petition because the identity of his immediate custodian was
unknown); see also Padilla, 124 S. Ct. at 2726 n.18 (acknowledging
that application of the immediate custodian rule was "impossible" in
Demjanjuk). It would appear—at least the Government has not
disputed—that the witnesses are in military custody. Therefore, Sec-
retary of Defense Donald Rumsfeld is their ultimate custodian. Secre-
tary Rumsfeld—who is indisputably within the process power of the
district court—is thus a proper recipient of a testimonial writ directing
production of the witnesses.[ ]

   Even if it were necessary for the writ to be served upon the wit-
nesses’ immediate custodian, who is in a foreign country, the district
court would have the power to serve the writ. In arguing otherwise,
the Government points to the language of 28 U.S.C.A. § 2241(a)
(West 1994)—which provides that district courts may issue writs of
habeas corpus "within their respective jurisdictions"—and notes that
in Johnson v. Eisentrager, 339 U.S. 763, 781-85 (1950), the Supreme
Court held that the writ of habeas corpus ad subjiciendum ("the Great
Writ") did not extend to enemy aliens held abroad. But see Rasul v.
Bush, 124 S. Ct. 2686, 2693-95 (2004) (explaining that Johnson
addressed only the question of "the prisoners’ constitutional entitle-
ment to habeas corpus" and noting that § 2241 makes habeas relief
available as a matter of statutory law even when the Constitution does
not require availability of the writ). Based upon the language of

  [




                                                                        ]
                      UNITED STATES v. MOUSSAOUI                        23
§ 2241 and Johnson, the Government contends that the process power
of the district court does not extend overseas.

   This argument is premised on the assumption that territorial limita-
tions applicable to the Great Writ also apply to the lesser writs. This
assumption is incorrect. In Carbo v. United States, 364 U.S. 611
(1961), the Supreme Court considered the question of whether the
writ of habeas corpus ad prosequendum ("prosecutorial writ") applied
extraterritorially. The Court traced the different histories of the Great
Writ and the testimonial and prosecutorial writs, noting that the statu-
tory authority to issue the Great Writ had been territorially limited
since at least 1875. See id. at 614-18. In contrast, the prosecutorial
writ (authority for which derived from a different statutory provision)
existed for the purpose of bringing a defendant into a jurisdiction for
prosecution and thus was not traditionally territorially limited. See id.
The Court concluded that while these distinctions were erased when
Congress enacted § 2241, Congress did not intend to abandon them.
See Carbo, 364 U.S. at 620. The Court therefore concluded that the
prosecutorial writ may issue extraterritorially. See id. at 621.

   Although the Carbo Court explicitly left the question open, its rea-
soning applies equally to the testimonial writ. See Muhammad v. War-
den, 849 F.2d 107, 114 (4th Cir. 1988). It is thus clear that a district
court can reach beyond the boundaries of its own district in order to
issue a testimonial writ.

                                   IV.

   The Government next argues that even if the district court would
otherwise have the power to order the production of the witnesses, the
January 30 and August 29 orders are improper because they infringe
on the Executive’s warmaking authority, in violation of separation of
powers principles.18
  18
    Moussaoui asserts that we should not consider this argument because
any conflict between the Governments’ interests and Moussaoui’s is of
the Government’s making. There is no question that the Government
cannot invoke national security concerns as a means of depriving Mous-
saoui of a fair trial. That is not what the Government is attempting to do,
24                    UNITED STATES v. MOUSSAOUI
                           A. Immunity Cases

   We begin by examining the Government’s reliance on cases con-
cerning governmental refusal to grant immunity to potential defense
witnesses. The Government argues that these cases stand for the prop-
osition that the district court may be precluded from issuing certain
orders that implicate the separation of powers. We reject this charac-
terization of these cases.

   "The Self-Incrimination Clause of the Fifth Amendment guarantees
that no person ‘shall be compelled in any criminal case to be a wit-
ness against himself.’" Withrow v. Williams, 507 U.S. 680, 688
(1993) (quoting U.S. Const. amend. V). Nothing in the Fifth Amend-
ment, or in any other constitutional provision provides a means for
overcoming this privilege once a potential witness has invoked it. See,
e.g., United States v. Lenz, 616 F.2d 960, 962 (6th Cir. 1980). How-
ever, through the Immunity of Witnesses Act, 18 U.S.C.A. §§ 6001-
6005 (West 2000 & Supp. 2003), Congress has conferred upon the
Attorney General statutory authority to grant use immunity to wit-
nesses in order to obtain their testimony at trial. See generally Kasti-
gar v. United States, 406 U.S. 441, 446 (1972) (explaining that
immunity statutes "seek a rational accommodation between the
imperatives of the Fifth Amendment privilege and the legitimate
demands of government to compel citizens to testify"). The Immunity
Act grants the Attorney General or his designee exclusive authority
and discretion to confer immunity. See 18 U.S.C.A. § 6003(b); United
States v. Washington, 318 F.3d 845, 855 (8th Cir.), cert. denied, 124
S. Ct. 209, 251 (2003).

  The circuit courts, including the Fourth Circuit, have uniformly
held that district courts do not have any authority to grant immunity,
even when a grant of immunity would allow a defendant to present
material, favorable testimony. See, e.g., United States v. Bowling, 239

however. The Government’s claim is that separation of powers principles
place the enemy combatant witnesses beyond the reach of the district
court. If that is so (although we ultimately conclude it is not), then Mous-
saoui would not have an enforceable Sixth Amendment right to the wit-
nesses’ testimony.
                     UNITED STATES v. MOUSSAOUI                       25
F.3d 973, 976 (8th Cir. 2001); United States v. Abbas, 74 F.3d 506,
511-12 (4th Cir. 1996); Lenz, 616 F.2d at 962. These holdings have
been based on the facts that no power to grant immunity is found in
the Constitution and that Congress reserved the statutory immunity
power to the Attorney General. Cf. Earl v. United States, 361 F.2d
531, 534 (D.C. Cir. 1966) (observing, in an opinion by then-Circuit
Judge Warren Burger, that the power to grant immunity "is one of the
highest forms of discretion conferred by Congress on the Executive"
and cannot be assumed by the judiciary). Because a district court has
no power to grant immunity to compel the testimony of a potential
witness who has invoked the privilege against self-incrimination, a
defendant has no Sixth Amendment right to such testimony. See
United States v. Turkish, 623 F.2d 769, 773-74 (2d Cir. 1980)
("Traditionally, the Sixth Amendment’s Compulsory Process Clause
gives the defendant the right to bring his witness to court and have
the witness’s non-privileged testimony heard, but does no[t] carry
with it the additional right to displace a proper claim of privilege,
including the privilege against self-incrimination.").

   The circuits are divided with respect to the question of whether a
district court can ever compel the government, on pain of dismissal,
to grant immunity to a potential defense witness. Compare United
States v. Mackey, 117 F.3d 24, 27 (1st Cir. 1997) (stating that "in cer-
tain extreme cases of prosecutorial misconduct," government’s refusal
to grant immunity may justify dismissal of prosecution); United
States v. Westerdahl, 945 F.2d 1083, 1086 (9th Cir. 1991) (court may
compel government to grant immunity to potential defense witness
when "the fact-finding process is intentionally distorted by prosecu-
torial misconduct"); Blissett v. Lefevre, 924 F.2d 434, 441-42 (2d Cir.
1991) ("[A] trial court should order the prosecutor to grant a defense
witness immunity only in extraordinary circumstances."), and United
States v. Frans, 697 F.2d 188, 191 (7th Cir. 1983) ("[W]e have
implied that review [of refusal to grant immunity] may be proper if
there is a clear abuse of discretion violating the due process clause."),
with Bowling, 239 F.3d at 976-77 (holding that district court has no
authority to compel government to grant immunity); cf. United States
v. Talley, 164 F.3d 989, 997 (6th Cir. 1999) (noting that the Sixth Cir-
cuit has not yet decided whether, and under what circumstances, a
district court could compel the government to grant immunity to a
potential witness); Autry v. Estelle, 706 F.2d 1394, 1401 (5th Cir.
26                   UNITED STATES v. MOUSSAOUI
1983) (leaving open possibility that compelled grant of immunity may
be justified by prosecutorial misconduct). The Fourth Circuit, consis-
tent with the majority rule, has held that a district court may compel
the government to grant immunity upon a showing of prosecutorial
misconduct and materiality. See Abbas, 74 F.3d at 512.

   Courts have noted that compelling the prosecution to grant immu-
nity implicates the separation of powers.19 See, e.g., Turkish, 623 F.2d
at 775-76. Decisions to grant or deny immunity are intimately tied to
decisions regarding which perpetrators of crimes will be prosecuted,
a core aspect of the Executive’s duty to enforce the laws. See United
States v. Pennell, 737 F.2d 521, 528 (6th Cir. 1984). On a related
note, a grant of immunity creates substantial burdens on the Execu-
tive’s ability to prosecute the witness. Prosecuting a previously immu-
nized witness requires the government to bear the "heavy burden" of
proving that the prosecution does not rest on immunized testimony.
Turkish, 623 F.2d at 775 (internal quotation marks omitted). Further,
"awareness of the obstacles to successful prosecution of an immu-
nized witness may force the prosecution to curtail its cross-
examination of the witness in the case on trial to narrow the scope of
the testimony that the witness will later claim tainted his subsequent
prosecution." Id.

   The Government claims that these "immunity cases" stand for the
proposition that, under certain circumstances, legitimate separation of
powers concerns effectively insulate the Government from being
compelled to produce evidence or witnesses. In fact, the majority rule
and the law of this circuit stand for precisely the opposite proposition,
namely, that courts will compel a grant of immunity, despite the exis-
tence of separation of powers concerns, when the defendant demon-
strates that the Government’s refusal to grant immunity to an essential
defense witness constitutes an abuse of the discretion granted to the
Government by the Immunity Act. A showing of misconduct is neces-
sary because, as explained above, a defendant has no Sixth Amend-
ment right to the testimony of a potential witness who has invoked the
Fifth Amendment right against self-incrimination; therefore, the
  19
    There is also a concern that the opportunity to compel the govern-
ment to grant immunity may induce "cooperative perjury among law vio-
lators." Turkish, 623 F.2d at 775.
                      UNITED STATES v. MOUSSAOUI                       27
defendant has no Sixth Amendment right that could outweigh the
Government’s interest in using its immunity power sparingly. Gov-
ernmental abuse of the immunity power, however, vitiates this inter-
est because when the Government’s misconduct threatens to impair
the defendant’s right to a fair trial, it is proper for the district court
to protect that right by compelling the Government to immunize the
witness.

  For these reasons, the analogy between this case and the immunity
cases is inapt. The witnesses at issue here, unlike potential witnesses
who have invoked their Fifth Amendment rights, are within the pro-
cess power of the district court, and Moussaoui therefore has a Sixth
Amendment right to their testimony. As discussed below, this right
must be balanced against the Government’s legitimate interest in pre-
venting disruption [
                ] of the enemy combatant witnesses.

                       B. Governing Principles

   The concept that the various forms of governmental power—
legislative, executive, and judicial—should be exercised by different
bodies predates the Constitution. See Loving v. United States, 517
U.S. 748, 756 (1996) (citing Montesquieu, The Spirit of the Laws
151-52 (Thomas Nugent trans., 1949), and 1 William Blackstone,
Commentaries *146-*147, *269-*270). The alternative, "[t]he accu-
mulation of all powers legislative, executive and judiciary in the same
hands, . . . may justly be pronounced the very definition of tyranny."
The Federalist No. 47, at 244 (James Madison) (Gary Wills ed.,
1982). "The principle of separation of powers was not simply an
abstract generalization in the minds of the Framers: it was woven into
the document that they drafted in Philadelphia in the summer of
1787." Buckley v. Valeo, 424 U.S. 1, 124 (1976) (per curiam); see INS
v. Chadha, 462 U.S. 919, 946 (1983) ("The very structure of the Arti-
cles delegating and separating powers under Arts. I, II, and III exem-
plifies the concept of separation of powers . . . ."). And, the Supreme
Court "consistently has given voice to, and has reaffirmed, the central
judgment of the Framers of the Constitution that, within our political
scheme, the separation of governmental powers into three coordinate
Branches is essential to the preservation of liberty." Mistretta v.
United States, 488 U.S. 361, 380 (1989).
28                   UNITED STATES v. MOUSSAOUI
   Separation of powers does not mean, however, that each branch is
prohibited from any activity that might have an impact on another.
See The Federalist No. 47, at 245 (James Madison) (explaining that
separation of powers does not mean that the branches "ought to have
no partial agency in, or no controul over the acts of each other," but
rather means "that where the whole power of one department is exer-
cised by the same hands which possess the whole power of another
department, the fundamental principles of a free constitution, are sub-
verted" (emphasis omitted)). "[A] hermetic sealing off of the three
branches of Government from one another would preclude the estab-
lishment of a Nation capable of governing itself effectively." Buckley,
424 U.S. at 121. Indeed, the Supreme Court has observed that "even
quite burdensome interactions" between the judiciary and the Execu-
tive do not "necessarily rise to the level of constitutionally forbidden
impairment of the Executive’s ability to perform its constitutionally
mandated functions." Clinton v. Jones, 520 U.S. 681, 702 (1997). One
example of permissible but burdensome interaction is judicial review
of official Executive conduct. See id. at 703.

   Stated in its simplest terms, the separation of powers doctrine pro-
hibits each branch of the government from "intrud[ing] upon the cen-
tral prerogatives of another." Loving, 517 U.S. at 757. Such an
intrusion occurs when one branch arrogates to itself powers constitu-
tionally assigned to another branch or when the otherwise legitimate
actions of one branch impair the functions of another. See id.; see
Clinton, 520 U.S. at 701-02.

   This is not a case involving arrogation of the powers or duties of
another branch. The district court orders requiring production of the
enemy combatant witnesses involved the resolution of questions
properly—indeed, exclusively—reserved to the judiciary. Therefore,
if there is a separation of powers problem at all, it arises only from
the burden the actions of the district court place on the Executive’s
performance of its duties. See Clinton, 520 U.S. at 701-06 (addressing
claim that separation of powers principles barred "an otherwise tradi-
tional exercise of judicial power" that would "impose an unacceptable
burden on the President’s time and energy, and thereby impair the
effective performance of his office").

  The Supreme Court has explained on several occasions that deter-
mining whether a judicial act places impermissible burdens on
                      UNITED STATES v. MOUSSAOUI                       29
another branch of government requires balancing the competing inter-
ests. See, e.g., Nixon v. Admin’r of Gen. Servs., 433 U.S. 425, 443
(1977). In a case concerning the extent of the President’s executive
immunity, the Supreme Court noted that "[c]ourts traditionally have
recognized the President’s constitutional responsibilities and status as
factors counseling judicial deference and restraint." Nixon v. Fitzger-
ald, 457 U.S. 731, 753 (1982). The Court continued,

     It is settled law that the separation-of-powers doctrine does
     not bar every exercise of jurisdiction over the President of
     the United States. But our cases also have established that
     a court, before exercising jurisdiction, must balance the con-
     stitutional weight of the interest to be served against the
     dangers of intrusion on the authority and functions of the
     Executive Branch.

Id. at 753-54 (citations & footnote omitted).

                             C. Balancing

                  1. The Burden on the Government

   The Constitution charges the Congress and the Executive with the
making and conduct of war. U.S. Const. art. I, § 8, cl. 11-16 (setting
forth Congress’ war powers); id. art. II., § 2, cl. 1 (providing that
"[t]he President shall be Commander in Chief of the Army and Navy
of the United States"); Hamdi v. Rumsfeld (Hamdi II), 296 F.3d 278,
281 (4th Cir. 2002). It is not an exaggeration to state that the effective
performance of these duties is essential to our continued existence as
a sovereign nation. Indeed, "no governmental interest is more compel-
ling than the security of the Nation." Haig v. Agee, 453 U.S. 280, 307
(1981); see Hamdi II, 296 F.3d at 283 (observing, in the post- Sep-
tember 11 context, that "government has no more profound responsi-
bility than the protection of Americans . . . against additional
unprovoked attack"). Thus, "[i]n accordance with [the] constitutional
text, the Supreme Court has shown great deference to the political
branches when called upon to decide cases implicating sensitive mat-
ters of foreign policy, national security, or military affairs." Hamdi II,
296 F.3d at 281.
30                   UNITED STATES v. MOUSSAOUI
   The Government alleges—and we accept as true—that [
              ] the enemy combatant witnesses is critical to the ongo-
ing effort to combat terrorism by al Qaeda. The witnesses are
[        ] al Qaeda operatives who have extensive knowledge con-
cerning not just the September 11 attacks, but also other past attacks,
future operations, and the structure, personnel, and tactics of al
Qaeda. Their value as intelligence sources can hardly be overstated.
And, we must defer to the Government’s assertion that interruption
[        ] of these witnesses will have devastating effects on the abil-
ity to gather information from them. Cf. CIA v. Sims, 471 U.S. 159,
176 (1985) (noting that "whether an intelligence source will be
harmed if his identity is revealed will often require complex political,
historical, and, psychological judgments" that courts are poorly
equipped to make). [                                              ] it is
not unreasonable to suppose that interruption [         ] could result in
the loss of information that might prevent future terrorist attacks.

   The Government also asserts that production of the witnesses
would burden the Executive’s ability to conduct foreign relations. See
United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319
(1936) ("In this vast external realm, . . . the President alone has the
power to speak or listen as a representative of the nation."). The Gov-
ernment claims that if the Executive’s assurances of confidentiality
can be abrogated by the judiciary, the vital ability to obtain the coop-
eration of other governments will be devastated.

   The Government also reminds us of the bolstering effect produc-
tion of the witnesses might have on our enemies. In Johnson, the
Supreme Court considered the question of whether enemy aliens, cap-
tured and detained abroad, should be able to assert Fifth Amendment
claims by means of a petition for the Great Writ. See Johnson, 339
U.S. at 767. In rejecting this claim, the Court noted that issuance of
the writ to enemy aliens would not only impose direct burdens on mil-
itary commanders, but would also bolster the enemy in a manner
inimical to the war effort:

        A basic consideration in habeas corpus practice is that the
     prisoner will be produced before the court. . . . To grant the
     writ to these prisoners might mean that our army must trans-
     port them across the seas for hearing. This would require
                     UNITED STATES v. MOUSSAOUI                        31
    allocation of shipping space, guarding personnel, billeting
    and rations. . . . The writ, since it is held to be a matter of
    right, would be equally available to enemies during active
    hostilities as in the present twilight between war and peace.
    Such trials would hamper the war effort and bring aid and
    comfort to the enemy. They would diminish the prestige of
    our commanders, not only with enemies but with wavering
    neutrals. It would be difficult to devise more effective fetter-
    ing of a field commander than to allow the very enemies he
    is ordered to reduce to submission to call him to account in
    his own civil courts and divert his efforts and attention from
    the military offensive abroad to the legal defensive at home.
    Nor is it unlikely that the result of such enemy litigiousness
    would be a conflict between judicial and military opinion
    highly comforting to enemies of the United States.

Id. at 778-79. Although the concerns expressed in Johnson do not
exactly translate to the present context, the Government asserts that
they are nevertheless relevant.[


                                                                        ]

  In summary, the burdens that would arise from production of the
enemy combatant witnesses are substantial.

                       2. Moussaoui’s Interest

  The importance of the Sixth Amendment right to compulsory pro-
cess is not subject to question—it is integral to our adversarial crimi-
nal justice system:

    The need to develop all relevant facts in the adversary sys-
    tem is both fundamental and comprehensive. The ends of
    criminal justice would be defeated if judgments were to be
    founded on a partial or speculative presentation of the facts.
    The very integrity of the judicial system and public confi-
    dence in the system depend on full disclosure of all the
    facts, within the framework of the rules of evidence. To
    ensure that justice is done, it is imperative to the function of
32                    UNITED STATES v. MOUSSAOUI
       the courts that compulsory process be available for the pro-
       duction of evidence needed either by the prosecution or by
       the defense.

United States v. Nixon, 418 U.S. 683, 709 (1974); see Washington v.
Texas, 388 U.S. 14, 19 (1967) ("The right to offer the testimony of
witnesses, and to compel their attendance, if necessary, is in plain
terms the right to present a defense."). To state the matter more suc-
cinctly, "[f]ew rights are more fundamental than that of an accused to
present witnesses in his own defense." Chambers v. Mississippi, 410
U.S. 284, 302 (1973).

   The compulsory process right does not attach to any witness the
defendant wishes to call, however. Rather, a defendant must demon-
strate that the witness he desires to have produced would testify "in
his favor." U.S. Const. amend. VI; see United States v. Valenzuela-
Bernal, 458 U.S. 858, 867 (1982). Thus, in order to assess Mous-
saoui’s interest, we must determine whether the enemy combatant
witnesses could provide testimony material to Moussaoui’s defense.

   In the CIPA context,20 we have adopted the standard articulated by
the Supreme Court in Roviaro v. United States, 353 U.S. 53 (1957),
for determining whether the government’s privilege in classified
information must give way. See United States v. Smith, 780 F.2d
1102, 1107-10 (4th Cir. 1985) (en banc). Under that standard, a
defendant becomes entitled to disclosure of classified information
upon a showing that the information "‘is relevant and helpful to the
defense . . . or is essential to a fair determination of a cause.’" Id. at
1107 (quoting Roviaro, 353 U.S. at 60-61); see United States v. Fer-
  20
     We adhere to our prior ruling that CIPA does not apply because the
January 30 and August 29 orders of the district court are not covered by
either of the potentially relevant provisions of CIPA: § 4 (concerning
deletion of classified information from documents to be turned over to
the defendant during discovery) or § 6 (concerning the disclosure of clas-
sified information by the defense during pretrial or trial proceedings).
See Moussaoui I, 333 F.3d at 514-15. Like the district court, however,
we believe that CIPA provides a useful framework for considering the
questions raised by Moussaoui’s request for access to the enemy comba-
tant witnesses.
                     UNITED STATES v. MOUSSAOUI                       33
nandez, 913 F.2d 148, 154 (4th Cir. 1990) (explaining that "Smith
requires the admission of classified information" once the defendant
has satisfied the Roviaro standard).

   Because Moussaoui has not had—and will not receive—direct
access to any of the witnesses, he cannot be required to show materi-
ality with the degree of specificity that applies in the ordinary case.
See Valenzuela-Bernal, 458 U.S. at 870-71, 873. Rather, it is suffi-
cient if Moussaoui can make a "plausible showing" of materiality. Id.
at 873; cf. id. at 871 (noting that a defendant who has not interviewed
a potential witness may demonstrate materiality by relating "the
events to which a witness might testify [ ] and the relevance of those
events to the crime charged"). However, in determining whether
Moussaoui has made a plausible showing, we must bear in mind that
Moussaoui does have access to the [              ] summaries. See Part
V.B, infra.

   Before considering whether Moussaoui has made the necessary
showing with respect to each witness, we pause to consider some gen-
eral arguments raised by the Government concerning materiality.
First, the Government maintains that Moussaoui can demonstrate
materiality only by relying on admissible evidence. We agree with the
Government to a certain extent—Moussaoui should not be allowed to
rely on obviously inadmissible statements (e.g., statements resting on
a witness’ belief rather than his personal knowledge). Cf. Wood v.
Bartholomew, 516 U.S. 1, 6 (1995) (per curiam) (holding that inad-
missible materials that are not likely to lead to the discovery of admis-
sible exculpatory evidence are not subject to disclosure under Brady
v. Maryland, 373 U.S. 83 (1963)). However, because many rulings on
admissibility—particularly those relating to relevance—can only be
decided in the context of a trial, most of the witnesses’ statements
cannot meaningfully be assessed for admissibility at this time. More-
over, statements that may not be admissible at the guilt phase may be
admissible during the penalty phase, with its more relaxed evidentiary
standards. See 18 U.S.C.A. § 3593(c) (West Supp. 2003).

   Second, the Government maintains that Moussaoui cannot establish
materiality unless he can prove that the witnesses would not invoke
their Fifth Amendment rights against self-incrimination. We have pre-
viously indicated, however, that a court should not assume that a
34                    UNITED STATES v. MOUSSAOUI
potential witness will invoke the Fifth Amendment. Cf. United States
v. Walton, 602 F.2d 1176, 1180 (4th Cir. 1979) (noting that, when a
potential defense witness is in protective custody, "the better proce-
dure is to allow the defense counsel to hear directly from the witness
whether he would be willing to talk to the defense attorney"). While
circumstances indicating that a potential witness will refuse to testify
may support a decision not to compel disclosures sought by the
defense, see United States v. Polowichak, 783 F.2d 410, 414 (4th Cir.
1986), such circumstances are not present here. While it is possible
that the witnesses would be reluctant to testify in a deposition setting,
there is no particular reason to assume that they would refuse. Cf.
Watkins v. Callahan, 724 F.2d 1038, 1044 (1st Cir. 1984) (noting that
a potential defense witness who was charged with the same murder
as the defendant, and who was resisting extradition, "in all likelihood
would refuse to testify").

   Additionally, the Government argues that even if the witnesses’
testimony would tend to exonerate Moussaoui of involvement in the
September 11 attacks, such testimony would not be material because
the conspiracies with which Moussaoui is charged are broader than
September 11. Thus, the Government argues, Moussaoui can be con-
victed even if he lacked any prior knowledge of September 11. This
argument ignores the principle that the scope of an alleged conspiracy
is a jury question, see United States v. Sharpe, 193 F.3d 852, 867 (5th
Cir. 1999), and the possibility that Moussaoui may assert that the con-
spiracy culminating in the September 11 attacks was distinct from any
conspiracy in which he was involved. Moreover, even if the jury
accepts the Government’s claims regarding the scope of the charged
conspiracy, testimony regarding Moussaoui’s non-involvement in
September 11 is critical to the penalty phase. If Moussaoui had no
involvement in or knowledge of September 11, it is entirely possible
that he would not be found eligible for the death penalty.21
  21
    For example, the Government maintains that even if Moussaoui was
not part of the September 11 attacks, he may be subject to the death pen-
alty for withholding information regarding the upcoming attacks after his
arrest. See 18 U.S.C.A. § 3591(a)(2)(C) (West 2000) (providing that a
defendant is eligible for the death penalty if the jury finds, beyond a rea-
sonable doubt, that the defendant "intentionally participated in an act,
contemplating that the life of a person would be taken . . . , and the vic-
                      UNITED STATES v. MOUSSAOUI                         35
   We now consider the rulings of the district court regarding the abil-
ity of each witness to provide material testimony in Moussaoui’s
favor.

                               a. Witness A

   The district court did not err in concluding that Witness A could
offer material evidence on Moussaoui’s behalf.22 [




     ]Several statements by Witness A tend to exculpate Mous-
saoui.[



          ]to undermine the theory (which the Government may or
may not intend to advance at trial) that Moussaoui was to pilot a fifth
plane into the White House. [


     ] This statement is significant in light of other evidence [

tim died as a direct result of the act"); Br. for the United States at 89
(asserting that Moussaoui "lied in a way that concealed the conspiracy
and prevented discovery of the September 11 attacks"). A finding by the
jury that Moussaoui lacked any knowledge of the planned September 11
attacks would substantially undermine this theory, although the Govern-
ment might still be able to establish Moussaoui’s eligibility for the death
penalty based on his failure to disclose whatever knowledge he did have.
   22
      The parties dispute whether the materiality determinations by the dis-
trict court are reviewed de novo or for abuse of discretion. We do not
decide this question because we would affirm the district court under
either standard.
36                    UNITED STATES v. MOUSSAOUI




               ] This is consistent with Moussaoui’s claim that he was
to be part of a post-September 11 operation.

   The Government argues that Witness A’s statements are actually
incriminatory of Moussaoui.23 It is true that Witness A has made some
statements that arguably implicate Moussaoui in the September 11
attacks. [



        ] On balance, however, Moussaoui has made a sufficient
showing that evidence from Witness A would be more helpful than
hurtful, or at least that we cannot have confidence in the outcome of
the trial without Witness A’s evidence.

                              b. Witness B

  There can be no question that Witness B could provide material
evidence on behalf of Moussaoui. [




  23
     The Government points to several statements relating Witness A’s
belief that Moussaoui was involved in the September 11 attacks. How-
ever, a witness’ "belief" is not admissible evidence. See United States v.
Tanner, 941 F.2d 574, 585 (7th Cir. 1991) (noting that witnesses cannot
testify to events of which they do not have personal knowledge).
                    UNITED STATES v. MOUSSAOUI                    37




            ] Witness B [          ] has indicated that Moussaoui’s
operational knowledge was limited, a fact that is clearly of exculpa-
tory value as to both guilt and penalty. [




       ] Thus, of all three witnesses, Witness B is of the greatest
exculpatory value.

                            c. Witness C

  [




                                                                    ]
38                    UNITED STATES v. MOUSSAOUI
   The district court determined that Witness C could provide material
evidence because he could support Moussaoui’s contention that he
was not involved in the September 11 attacks. We agree with the dis-
trict court that a jury might reasonably infer, from Witness C [
                    ] that Moussaoui was not involved in September 11.
We therefore conclude that Moussaoui has made a plausible showing
that Witness C would, if available, be a favorable witness.

                              3. Balancing

   Having considered the burden alleged by the Government and the
right claimed by Moussaoui, we now turn to the question of whether
the district court should have refrained from acting in light of the
national security interests asserted by the Government. The question
is not unique; the Supreme Court has addressed similar matters on
numerous occasions. In all cases of this type—cases falling into
“what might loosely be called the area of constitutionally guaranteed
access to evidence," Arizona v. Youngblood, 488 U.S. 51, 55 (1988)
(internal quotation marks omitted)—the Supreme Court has held that
the defendant’s right to a trial that comports with the Fifth and Sixth
Amendments prevails over the governmental privilege. Ultimately, as
these cases make clear, the appropriate procedure is for the district
court to order production of the evidence or witness and leave to the
Government the choice of whether to comply with that order. If the
government refuses to produce the information at issue—as it may
properly do—the result is ordinarily dismissal.24

   For example, in Roviaro, the Supreme Court considered the con-
flict between the governmental interest in protecting the identity of a
confidential informant and a defendant’s right to present his case. The
Court acknowledged the importance of the so-called informer’s privi-
lege but held that this privilege is limited by "the fundamental
requirement of fairness. Where the disclosure of an informer’s iden-
  24
    Some of the cases in this "area" involve a defendant’s Sixth Amend-
ment rights, while others concern a defendant’s rights under the Due Pro-
cess Clause. The fact that different constitutional provisions are involved
is immaterial to our analysis. See, e.g., Pennsylvania v. Ritahis, 480 U.S.
39, 56 (1987) (adopting due process framework for analyzing compul-
sory process claim).
                     UNITED STATES v. MOUSSAOUI                        39
tity, or of the contents of his communication, is relevant and helpful
to the defense of an accused, or is essential to a fair determination of
a cause, the privilege must give way." Roviaro, 353 U.S. at 60-61.
The Court emphasized that the choice to comply with an order to dis-
close the identity of a confidential informant belongs to the Govern-
ment. See id. at 59 ("What is usually referred to as the informer’s
privilege to withhold from disclosure the identity of persons who fur-
nish information of violations of law to officers charged with enforce-
ment of that law," (emphasis added)); id. at 61 (stating that when the
identity of a confidential informant is necessary to the defense, "the
trial court may require disclosure and, if the Government withholds
the information dismiss the action" (emphasis added)).

   That it is the responsibility of the Government to decide whether
it will comply with a discovery order is even more apparent from
Jencks v. United States, 353 U.S. 657 (1957), in which the Court held
that the government’s privilege in confidential reports generated by
prosecution witnesses must give way to the defendant’s right to effec-
tively cross-examine the witnesses, see id. at 668-69. The Court
acknowledged that "the protection of vital national interests may mili-
tate against public disclosure of documents in the Government’s pos-
session" but concluded that

    the Government can invoke its evidentiary privileges only at
    the price of letting the defendant go free. . . . [S]ince the
    Government which prosecutes an accused also has the duty
    to see that justice is done, it is unconscionable to allow it to
    undertake prosecution and then invoke its governmental
    privileges to deprive the accused of anything which might
    be material to his defense.

Id. at 670-71 (internal quotation marks omitted). The Supreme Court
emphatically stated that "[t]he burden is the Government’s, not to be
shifted to the trial judge, to decide whether the public prejudice of
allowing the crime to go unpunished is greater than that attendant
upon the possible disclosure of state secrets and other confidential
information in the Government’s possession." Id. at 672 (emphasis
added).

   The Supreme Court has also applied this rule—-that a governmen-
tal refusal to produce evidence material to the defense is made upon
40                    UNITED STATES v. MOUSSAOUI
pain of sanction—to the good faith deportation of potential defense
witnesses. In Valenzuela-Bernal, the defendant claimed that the Gov-
ernment violated his compulsory process rights by deporting two ille-
gal immigrants who were potential defense witnesses. In assessing
this claim, the Court observed that the case involved a conflict
between the "vitally important" Executive duty of prosecuting crimi-
nal offenders and the congressional mandate (to be carried out by the
Executive) of promptly deporting illegal aliens. Valenzuela-Bernal,
458 U.S. at 863-64. The Court admonished that:

     it simply will not do . . . to minimize the Government’s
     dilemma in cases like this. Congress’ immigration policy
     and the practical considerations discussed above [regarding
     overcrowding in detention facilities] demonstrate that the
     Government had good reason to deport [the potential wit-
     nesses] once it concluded that they possessed no evidence
     relevant to the prosecution or the defense of [the] criminal
     charge. No onus, in the sense of "hiding out" or "conceal-
     ing" witnesses, attached to the Government by reason of its
     discharge of the obligations imposed upon it by Congress;
     its exercise of these manifold responsibilities is not to be
     judged by standards which might be appropriate if the Gov-
     ernment’s only responsibility were to prosecute criminal
     offenses.

Id. at 865-66. The Court nevertheless held that the Government’s
good faith deportation of the potential witnesses would be sanction-
able if the witnesses were material to the defense. See id. at 873-74.

   In addition to the pronouncements of the Supreme Court in this
area, we are also mindful of Congress’ judgment, expressed in CIPA,
that the Executive’s interest in protecting classified information does
not overcome a defendant’s right to present his case. Under CIPA,
once the district court determines that an item of classified informa-
tion is relevant and material, that item must be admitted unless the
government provides an adequate substitution. See 18 U.S.C.A. App.
3 § 6(c)(1); Fernandez, 913 F.2d at 154. If no adequate substitution
can be found, the government must decide whether it will prohibit the
disclosure of the classified information; if it does so, the district court
                     UNITED STATES v. MOUSSAOUI                       41
must impose a sanction, which is presumptively dismissal of the
indictment. See 18 U.S.C.A. App. 3 § 6(e).

   In view of these authorities, it is clear that when an evidentiary
privilege—even one that involves national security—is asserted by
the Government in the context of its prosecution of a criminal offense,
the "balancing" we must conduct is primarily, if not solely, an exami-
nation of whether the district court correctly determined that the infor-
mation the Government seeks to withhold is material to the defense.
We have determined that the enemy combatant witnesses can offer
material testimony that is essential to Moussaoui’s defense, and we
therefore affirm the January 30 and August 29 orders. Thus, the
choice is the Government’s whether to comply with those orders or
suffer a sanction.
UNITED STATES v. MOUSSAOUI              43
                             Volume 2 of 2
44                    UNITED STATES v. MOUSSAOUI
                                    V.

   As noted previously, the Government has stated that it will not pro-
duce the enemy combatant witnesses for depositions (or, we presume,
for any other purpose related to this litigation). We are thus left in the
following situation: the district court has the power to order produc-
tion of the enemy combatant witnesses and has properly determined
that they could offer material testimony on Moussaoui’s behalf, but
the Government has refused to produce the witnesses. Under such cir-
cumstances, dismissal of the indictment is the usual course. See, e.g.,
Jencks, 353 U.S. at 672; Roviaro, 353 U.S. at 61. Like the district
court, however, we believe that a more measured approach is required.25
Additionally, we emphasize that no punitive sanction is warranted
here because the Government has rightfully exercised its prerogative
to protect national security interests by refusing to produce the witness-
es.26

   Although, as explained above, this is not a CIPA case, that act nev-
ertheless provides useful guidance in determining the nature of the
remedies that may be available. Under CIPA, dismissal of an indict-
ment is authorized only if the government has failed to produce an

  25
     The Government asserts that we need not provide any remedy for the
denial of access to the witnesses because Moussaoui may have a due pro-
cess right to the admission of hearsay evidence containing statements
made by the witnesses. See Chambers, 410 U.S. at 302-03. The possible
existence of such a right—which the Government indicated at oral argu-
ment that it would contest—does not excuse us from remedying the vio-
lation of Moussaoui’s Sixth Amendment rights.
  26
    We emphasize that by all appearances, the Government’s refusal to
produce the witnesses is done in the utmost good faith. The Government
is charged not only with the task of bringing wrongdoers to justice, but
also with the grave responsibility of protecting the lives of the citizenry.
The choice the Government has made is not without consequences, but
those consequences are not punitive in nature.
                      UNITED STATES v. MOUSSAOUI                       45
adequate substitute for the classified information, see U.S.C.A. App.
3 § 6(c)(1), and the interests of justice would not be served by imposi-
tion of a lesser sanction, see id. § 6(e)(2). CIPA thus enjoins district
courts to seek a solution that neither disadvantages the defendant nor
penalizes the government (and the public) for protecting classified
information that may be vital to national security.

   A similar approach is appropriate here. Under such an approach,
the first question is whether there is any appropriate substitution for
the witnesses’ testimony. Because we conclude, for the reasons set
forth below, that appropriate substitutions are available, we need not
consider any other remedy.

                             A. Standard

   CIPA provides that the government may avoid the disclosure of
classified information by proposing a substitute for the information,
which the district court must accept if it "will provide the defendant
with substantially the same ability to make his defense as would dis-
closure of the specific classified information." Id. § 6(c)(l); see United
States v. Rezaq, 134 F.3d 1121, 1143 (D.C. Cir. 1998) (concluding
that proposed substitutions for classified documents were acceptable
because "[n]o information was omitted from the substitutions that
might have been helpful to [the] defense, and the discoverable docu-
ments had no unclassified features that might have been disclosed to
[the defendant]"). We believe that the standard set forth in CIPA ade-
quately conveys the fundamental purpose of a substitution: to place
the defendant, as nearly as possible, in the position he would be in if
the classified information (here, the depositions of the witnesses)
were available to him. See H. R. Conf. Rep. No. 96-1436, at 12-13
(1980), reprinted in 1980 U.S.C.C.A.N. 4307, 4310-11 (explaining
that "precise, concrete equivalence is not intended. The fact that insig-
nificant tactical advantages could accrue to the defendant by use of
the specific classified information should not preclude the court from
ordering alternative disclosure.") cf. Fernandez, 913 F.2d at 158
(affirming rejection of proposed substitutions that "fell far short of
informing the jury about that which the trial judge had already deter-
mined to be essential to [the] defense"). Thus, a substitution is an
appropriate remedy when it will not materially disadvantage the
defendant. Cf. Ball v. Woods, 402 F. Supp. 803, 810 (M.D. Ala. 1975)
46                    UNITED STATES v. MOUSSAOUI
("Access—or due process—is ultimately a matter of providing an
opportunity to have one’s claim resolved in a meaningful manner, and
does not guarantee that such claim will be presented in the most effec-
tive manner.")

            B. Substitutions proposed by the Government

   The Government proposed substitutions for the witnesses’ deposi-
tion testimony in the form of a series of statements derived from the
[           ] summaries.27 The district court rejected all proposed sub-
stitutions as inadequate.28 The ruling of the district court was based
on its conclusions regarding the inherent inadequacy of the substitu-
tions and its findings regarding the specific failings of the Govern-
ment’s proposals. For the reasons set forth below, we reject the ruling
of the district court that any substitution for the witnesses’ testimony
would be inadequate. We agree, however, with the assessment that
the particular proposals submitted by the Government are inadequate
in their current form.

  First, the district court deemed the substitutions inherently inade-
quate because the [            ] reports, from which the substitutions
were ultimately derived, were unreliable.29 This was so, the court rea-
  27
      In the case of Witness A, the proposed substitutions were submitted
in narrative form rather than as excerpts from the [          ] summaries.
The substitutions for Witnesses B and C more closely tracked the lan-
guage of the [            ] summaries.
   28
      The court filed a memorandum opinion discussing in detail its rea-
sons for rejecting the proposed substitutions for Witness A’s deposition
testimony. The rejection of the Government’s proposed substitutions for
the deposition testimony of Witnesses B and C was accomplished by a
brief order finding the substitutions inadequate for the reasons stated in
its order concerning the proposed substitutions for Witness A’s deposi-
tion testimony.
   29
      The court also deemed the substitutions inadequate because the use
of substitutions would deprive Moussaoui of the ability to question wit-
nesses regarding matters that do not appear [           ] in the reports. In
essence, the district court appears to have concluded that the substitu-
tions are inadequate because they are not the same thing as a deposition.
However, we have already determined that a proposed substitution need
not provide Moussaoui with all the benefits of a deposition in order to
be adequate.
                      UNITED STATES v. MOUSSAOUI                         47
soned, because the witnesses’ [
                                     ] Supp. J.A.C. (03-4162) 271,
[
                                        ] The district court also com-
plained that it cannot be determined whether the [             ] reports
accurately reflect the witnesses’ statements [
                                       ]30 The court further commented
that the lack of quotation marks in the [             ] reports made it
impossible to determine whether a given statement is a verbatim
recording or [

          ] Id. at 273.

   The conclusion of the district court that the proposed substitutions
are inherently inadequate is tantamount to a declaration that there
could be no adequate substitution for the witnesses’ deposition testi-
mony. We reject this conclusion. The answer to the concerns of the
district court regarding the accuracy of the [             ] reports is that
those who are [            ] the witnesses have a profound interest in
obtaining accurate information from the witnesses and in reporting
that information accurately to those who can use it to prevent acts of
terrorism and to capture other al Qaeda operatives. These consider-
ations provide sufficient indicia of reliability to alleviate the concerns
of the district court.

   Next, the district court noted that the substitutions do not indicate
that they are summaries of statements made over the course of several
months. We agree with the district court that in order to adequately
protect Moussaoui’s right to a fair trial, the jury must be made aware
of certain information concerning the substitutions. The particular
content of any instruction to the jury regarding the substitutions lies
within the discretion of the district court. See United States v. Wills,
346 F.3d 476, 492 (4th Cir. 2003), cert. denied, 124 S. Ct. 2906
(2004). However, at the very least the jury should be informed that
    30
    The district court did not complain that the [          ] summaries do
not accurately summarize the [              ] reports. At the hearing con-
cerning the Government’s proposed substitutions for Witness A’s testi-
mony, the court commented that it had been "impressed with the
accuracy" of the [            ] summaries. Supp. J.A.C. (03-4162) 175.
48                    UNITED STATES v. MOUSSAOUI
the substitutions are derived from reports [             ] of the wit-
nesses. The instructions must account for the fact that members of the
prosecution team have provided information and suggested
[                                   ] The jury should also be
instructed that the statements were obtained under circumstances that
support a conclusion that the statements are reliable.31

   We reject the suggestion of the district court that the Government
acted improperly in attempting to organize the information presented
in the substitutions. Counsel rarely, if ever, present information to the
jury in the order they received it during pretrial investigations. Indeed,
organizing and distilling voluminous information for comprehensible
presentation to a jury is a hallmark of effective advocacy. In short,
while there may be problems with the manner in which the Govern-
ment organized the substitutions, the fact that the Government has
attempted such organization is not a mark against it.

   The district court identified particular problems with the proposed
substitutions for Witness A’s testimony. For example, the court noted
that the proposed substitutions failed to include exculpatory informa-
tion provided by Witness A and incorporated at least one incrimina-
tory inference not supplied by Witness A’s statements.[ ] Our own

  31
    Nothing in the Government’s submission in connection with the Peti-
tion contradicts our conclusion that those [           ] the witnesses have
a profound interest in obtaining truthful information. To the contrary, we
are even more persuaded that the [                 ] process is carefully
designed to elicit truthful and accurate information from the witnesses.
  We emphasize that we have never held, nor do we now hold, that the
witnesses’ statements are in fact truthful, and the jury should not be so
instructed. Instead, the jury should be informed that the circumstances
were designed to elicit truthful statements from the witnesses. We offer
no opinion regarding whether this instruction may include information
regarding [                           ]
  [
                    UNITED STATES v. MOUSSAOUI                     49
review of the proposed substitutions for the testimony of Witnesses
B and C reveals similar problems.[ ] These problems, however, may
be remedied as described below.

               C. Instructions for the District Court

            1. Submission of Questions by Moussaoui

   The Government’s submissions in response to the Petition make
clear that members of the prosecution team, [
                                         ] have had some input
[                        ] the enemy combatant witnesses. Our
review of the circumstances of this access indicates that the input by
the prosecution team into the [            ] process has worked no
unfairness on Moussaoui. Nevertheless, in order to provide Mous-
saoui with the fullest possible range of information from the wit-
nesses, we direct the district court to provide Moussaoui with an




                                                                     ]
  [




                                                                     ]
50                    UNITED STATES v. MOUSSAOUI
opportunity to [                             ] for [        ] discretionary
use [         ] of the witnesses.34

                            2. Substitutions

   For the reasons set forth above, we conclude that the district court,
erred in ruling that any substitution for the witnesses’ testimony is
inherently inadequate to the extent it is derived from the [           ]
reports. To the contrary, we hold that the [               ] summaries
(which, as the district court determined, accurately recapitulate the
[          ] reports) provide an adequate basis for the creation of
written statements that may be submitted to the jury in lieu of the wit-
nesses’ deposition testimony.

   The compiling of substitutions is a task best suited to the district
court, given its greater familiarity with the facts of the case and its
authority to manage the presentation of evidence.35 Nevertheless, we
think it is appropriate to provide some guidance to the court and the
parties.

  First, the circumstances of this case—most notably, the fact that the
substitutions may very well support Moussaoui’s defense—dictate
  34
      During the hearing regarding the Petition, defense counsel expressed
concern over whether [            ] would result in the disclosure of trial
strategy to the Government. The Government, in its June 16 filing,
informs us that measures can be taken to avoid such disclosures. We
leave the particulars of any such process to the discretion of the district
court. See United States v. Jones, 136 F.3d 342, 349 (4th Cir. 1998) (not-
ing that discovery matters are left to the discretion of the district court).
At an absolute minimum, however, whatever process is adopted must
ensure that the prosecution team is not privy to [              ] propounded
by the defense, just as the defense was unaware of [                   ] pro-
pounded by the prosecution team.
   35
      We note that the district court will not be drafting original language
for submission to the jury. Instead, as we discuss further in the text,
Moussaoui will designate portions of the [              ] summaries for sub-
mission; the Government will raise objections and cross-designate por-
tions of the summaries it believes are required by the rule of
completeness; and the district court will make rulings as necessary to
compile an appropriate set of substitutions.
                      UNITED STATES v. MOUSSAOUI                         51
that the compiling of substitutions be an interactive process among
the parties and the district court.36 Second, we think that accuracy and
fairness are best achieved by compiling substitutions that use the
exact language of the [               ] summaries to the greatest extent
possible. We believe that the best means of achieving both of these
objectives is for defense counsel to identify particular portions of the
[           ] summaries that Moussaoui may want to admit into evi-
dence at trial. The Government may then offer any objections and
argue that additional portions must be included in the interest of com-
pleteness, as discussed below. If the substitutions are to be admitted
at all (we leave open the possibility that Moussaoui may decide not
to use the substitutions in his defense), they may be admitted only by
Moussaoui. Based on defense counsel’s submissions and the Govern-
ment’s objections, the district court could then compile an appropriate
set of substitutions.37 We leave to the discretion of the district court
the question of whether to rule on the admissibility of a particular
substitution (e.g., whether a substitution is relevant) at trial or during
pre-trial proceedings.
  36
    We disagree with Judge Gregory’s view that, by assigning the district
court a role in compiling the substitutions, we have "place[d] the district
court in the position of being an advocate in the proceedings," post, at
59, and that "we are setting ourselves out as super-arbiters of the admis-
sion of evidence in this case," id. at 59 n.4. In fact, what we are asking
the district court to do is little removed from the quite ordinary judicial
task of assessing the admissibility of evidence. And, any subsequent
review by this court on these matters will involve nothing more than
review of evidentiary rulings—a routine function of an appellate court.
   We also disagree with Judge Gregory’s suggestion that we are some-
how contravening CIPA by mandating that the district court be involved
in compiling substitutions. CIPA authorizes the Government to move for
an order approving substitutions for classified information, see 18
U.S.C.A. App. 3 § 6(c)(1), but it does not mandate that the Government
draft proposed substitutions. Thus, although it is likely that the Govern-
ment will draft substitutions in the vast majority of CIPA cases, nothing
in CIPA expressly or implicitly precludes the involvement of defense
counsel or the district court.
   37
      We leave it to the district court to determine whether national secur-
ity mandates non-substantive changes, such as alternate names for people
or places, in order to accommodate national security concerns articulated
by the Government when the substitutions are being compiled.
52                    UNITED STATES v. MOUSSAOUI
   As previously indicated, the jury must be provided with certain
information regarding the substitutions. While we leave the particu-
lars of the instructions to the district court, the jury must be informed,
at a minimum, that the substitutions are what the witnesses would say
if called to testify; that the substitutions are derived from statements
obtained under conditions that provide circumstantial guarantees of
reliability; that the substitutions contain statements obtained over the
course of weeks or months; that members of the prosecution team
have contributed to [              ] the witnesses; and, if applicable, that
Moussaoui has [               ] to the witnesses.38

                        a. Rule of Completeness

   Moussaoui asserts that allowing the Government to argue that addi-
tional portions of the summaries must be included in the substitutions
will result in substitutions "larded with inculpatory information under
the guise of ‘completeness,’" Petition at 12, in violation of the Con-
frontation Clause, see Crawford v. Washington, 124 S. Ct. 1354, 1374
(2004). And, indeed, the Government has indicated its view that the
rule of completeness would allow it to designate an inculpatory por-
tion of a witness’ statement to counter an exculpatory statement by
the same witness designated by Moussaoui.39 See Hrg. Tr. (June 3,
2004) at 59-60; see also Response at 35 (asserting that rule of com-
pleteness requires introduction of "witness statements in their full
context").

   The common law "rule of’ completeness" is partially codified in
Federal Rule of Evidence 106, which provides, "When a writing or
recorded statement or part thereof is introduced by a party, an adverse
  38
      We are mindful of the fact that no written substitution will enable the
jury to consider the witnesses’ demeanor in determining their credibility.
See Fieldcrest Cannon, Inc. v. NLRB, 97 F.3d 65, 71 (4th Cir. 1996)
(noting that demeanor is a factor in determining credibility). We believe
that the instructions outlined above, plus any other instructions the dis-
trict court may deem necessary in the exercise of its discretion, ade-
quately address this problem.
   39
      The Government acknowledges that, under the circumstances here,
the rule of completeness would not allow it to use a statement by one
witness to "complete" a statement by another.
                     UNITED STATES v. MOUSSAOUI                       53
party may require the introduction at that time of any other part or any
other writing or recorded statement which ought in fairness to be con-
sidered contemporaneously with it." The purpose of Rule 106 is "to
prevent a party from misleading the jury by allowing into the record
relevant portions of [a writing or recorded statement] which clarify or
explain the part already received." United States v. Wilkerson, 84 F.3d
692, 696 (4th Cir. 1996). "The rule is protective, merely. It goes only
so far as is necessary to shield a party from adverse inferences, and
only allows an explanation or rebuttal of the evidence received."
United States v. Corrigan, 168 F.2d 641, 645 (2d Cir. 1948) (alter-
ation & internal quotation marks omitted); see Echo Acceptance
Corp. v. Household Retail Servs., Inc., 267 F.3d 1068, 1089 (10th Cir.
2001) ("The rule of completeness . . . functions as a defensive shield
against potentially misleading evidence proffered by an opposing
party.").

  We offer two examples of the operation of these principles in the
context of the [    ] summaries. [


            ]

    [



                 ]

J.A.C. (03-4162) 435. If Moussaoui designated the first sentence of
this excerpt for inclusion in the substitutions, the rule of completeness
would not allow the Government to include the second sentence. The
second sentence neither explains nor clarifies the first; moreover, the
second sentence is inadmissible because it is Witness A’s speculation,
not his personal knowledge.

  Our second example also relates to Witness A’s [                ] sum-
maries:
54                   UNITED STATES v. MOUSSAOUI
     [



                 ]

Id. at 429. Suppose Moussaoui offered the following substitution
based on the language of this paragraph:

     [

                 ]

This substitution could mislead the jury by implying that Witness A
had a higher position in al Qaeda than he actually did. Accordingly,
if Witness A’s status in al Qaeda were relevant to an issue in the case,
the rule of completeness would allow the Government to demand the
addition of the phrases [        ] and [             ] to the proposed
substitution.

   In short, we wish to make clear that the rule of completeness is not
to be used by the Government as a means of seeking the admission
of inculpatory statements that neither explain nor clarify the state-
ments designated by Moussaoui. On the other hand, the defense’s
ability to propose substitutions based on the language of the
[           ] summaries is not a license to mislead the jury.

                              b. CIPA

   On rehearing, both parties acknowledged our holding that CIPA
does not apply here but indicated their belief that once the district
court has approved substitutions for the witnesses’ testimony, CIPA
comes into play, with the result that the Government may object to
the disclosure of the classified information in the substitutions and
request that the district court adopt an alternative form of evidence.
See 18 U.S.C.A. App. 3 § 6. We disagree.

   It must be remembered that the substitution process we here order
is a replacement for the testimony of the enemy combatant witnesses.
                     UNITED STATES v. MOUSSAOUI                      55
Because the Government will not allow Moussaoui to have contact
with the witnesses, we must provide a remedy adequate to protect
Moussaoui’s constitutional rights. Here, that remedy is substitutions.
Once Moussaoui has selected the portions of the [           ] summa-
ries he wishes to submit to the jury and the Government has been
given an opportunity to be heard, the district court will compile the
substitutions, using such additional language as may be necessary to
aid the understanding of the jury. Once this process is complete, the
matter is at an end—there are to be no additional or supplementary
proceedings under CIPA regarding the substitutions.

                                  VI.

   In summary, the judgment of the court is as follows. The January
30 and August 29 orders are affirmed, as is the rejection of the Gov-
ernment’s proposed substitutions by the district court. The order
imposing sanctions on the Government is vacated, and the case is
remanded for the compiling of substitutions for the deposition testi-
mony of the enemy combatant witnesses.

                         AFFIRMED IN PART, VACATED IN PART,
                                             AND REMANDED

WILLIAMS, Circuit Judge, concurring:

  At the outset, I concur in Part I of Chief Judge Wilkins’s opinion,
which includes the background information relevant to this appeal,
and Part II, which describes our jurisdiction.

   Turning to the substantive issue in this case, the Supreme Court has
recently resolved the question of whether the district court has the
authority to grant access to aliens detained abroad. In Rasul v. Bush,
the Supreme Court held that § 2241 "draws no distinction between
Americans and aliens held in federal custody" and that therefore
"there is little reason to think that Congress intended the geographical
coverage of the statute to vary depending on the detainee’s citizen-
ship." Rasul v. Bush, 124 S. Ct. 2686, 2696 (June 28, 2004). More-
over, the Court held that "Section 2241, by its terms, requires nothing
more" than "the District Court’s jurisdiction over petitioners’ custo-
56                     UNITED STATES v. MOUSSAOUI
      1
dian." Id. at 2698. Accordingly, I concur in Parts III and IV of Chief
Judge Wilkins’s opinion.2

   Thus, Moussaoui has a Sixth Amendment right to compulsory pro-
cess of these witnesses because (1) under Rasul, the district court has
the power to grant a testimonial writ directed to [            ] of these
witnesses, and (2) Moussaoui has made a sufficient showing that the
witnesses would provide material and favorable testimony based on
the charges in the indictment. The Government, however, has refused
to provide access to the witnesses. Although I am troubled by the lack
of interactivity in the process that generated the substitutions,3 that
lack of interactivity is compelled by the substantial national security
concerns surrounding these witnesses. I feel that in light of those con-
cerns, the fact that the substitutions will not materially disadvantage
the defendant — because he will be permitted to introduce every
favorable statement from the witnesses while the Government will be
precluded from introducing any inculpatory statements — adequately
protects his Sixth Amendment rights. Accordingly, I concur in Part V
of Chief Judge Wilkins’s opinion.

  1
     Section 2241 authorizes both the Great Writ, 28 U.S.C.A. § 2241(c)
(1)-(4), and the testimonial and prosecutorial writs, 28 U.S.C.A.
§ 2241(c) (5). See Carbo v. United States, 364 U.S. 611 (1961) (tracing
the history of the prosecutorial and testimonial writs). Section 2241(a)
provides that the courts may grant a writ of habeas corpus, and section
2241(c) provides that the writ "shall not extend to a prisoner" unless cer-
tain circumstances exist, e.g., custody in violation of the Constitution or
the need to bring the prisoner to testify or for trial. In its categorical hold-
ing in Rasul v. Bush, 124 S. Ct. 2686 (June 28, 2004), the Supreme Court
makes no distinction between the different writs provided for by Section
2241. As the same statutory language in section 2241(a) authorizes both
writs, I see no basis to distinguish the testimonial writ.
   2
     I offer no opinion on whether the same result would obtain if Con-
gress were to amend section 2241.
   3
     I note that this lack of interactivity could be ameliorated in part by uti-
lizing a process similar to that used by the 9/11 Commission.
                      UNITED STATES v. MOUSSAOUI                        57
GREGORY, Circuit Judge, concurring in part and dissenting in part:

   I concur with my colleagues’ conclusion that the witnesses at issue
in this appeal could provide material, favorable testimony on Mous-
saoui’s behalf. I further concur with their conclusion that the wit-
nesses’ overseas location does not preclude a finding that they are
within the reach of the Compulsory Process Clause because they are,
for purposes of this litigation, deemed to be [            ] of the United
States. I wholeheartedly agree with my colleagues that the Govern-
ment has an absolute right to refuse access to the witnesses on
national security grounds; we shall not, indeed we must not, question
the Government’s determination that permitting the witnesses to be
deposed would put our nation’s security at risk. See United States v.
Fernandez, 913 F.2d 148, 154 (4th Cir. 1990) ("We are not asked, and
we have no authority, to consider judgments made by the Attorney
General concerning the extent to which the information in issue here
implicates national security.") Further, as noted in the majority opin-
ion, the district court correctly found that the proposed substitutions
offered by the Government are not adequate to protect Moussaoui’s
right to a fair trial. However, as both the district court and the major-
ity have recognized, the Government’s refusal to comply with the dis-
trict court’s orders necessarily brings with it some consequences.1 See
generally Classified Information Procedures Act (CIPA), 18 U.S.C.A.
app. 3, § 6(e)(2) (West 2000 & Supp. 2003) (providing for dismissal
of indictment or other sanction upon Government’s refusal to disclose
classified information when ordered to do so by the district court);2
  1
     To be clear: The consequences resulting from the Government’s non-
compliance are not intended as a penalty upon the Government. Rather,
they are a means of protecting the rights of the Defendant, and of protect-
ing the integrity of these judicial proceedings.
   2
     I am troubled by the majority’s conclusion that no CIPA-type review
applies to the substitutions for the witnesses’ testimony. The majority
holds that the substitutions are not to be prepared by the Government, as
is the practice anticipated by CIPA, but instead are to be compiled by the
district court based on portions of the still-classified summaries desig-
nated by Moussaoui, to which the Government may object, but over
which the Government has little control. Moussaoui, 365 F.3d at 315-16.
Because the Government is not itself compiling the substitutions, it has
no ability to ensure that the substitutions will not compromise national
58                    UNITED STATES v. MOUSSAOUI
Jencks v. United States, 353 U.S. 657, 670-71 (1957) (holding that the
Government may "invoke its evidentiary privileges [to avoid public
disclosure of highly sensitive material] only at the price of letting the
defendant go free. . . . [S]ince the Government which prosecutes an
accused also has the duty to see that justice is done, it is unconsciona-
ble to allow it to undertake prosecution and then invoke its govern-
mental privileges to deprive the accused of anything which might be
material to his defense.") (quoting United States v. Reynolds, 345 U.S.
1, 12 (1953)); Fernandez, 913 F.2d at 162-64 (affirming dismissal of
indictment when Government elected not to disclose classified evi-
dence that was material to the defense). The remedy proposed by the
majority does not begin to vindicate Moussaoui’s rights. Thus, it is
in formulating the remedy for the Government’s refusal to comply
with the district court’s order that I must part ways with the majority.3

   The majority directs that the district court itself compile substitu-
tions for the witnesses’ potential testimony, using portions of the
[          ] summaries designated by Moussaoui, subject to objection
by the Government. The majority further instructs that only Mous-

security. It may well be that Moussaoui will elect to include in the substi-
tutions information that the Government deems highly classified. How-
ever, the majority has left the Government with no clear mechanism for
mitigating the potential national security consequences of admission of
Moussaoui’s chosen portions of the summaries, other than the possibility
of non-substantive changes to names, places, and the like. Although we
cannot know at this juncture what materials might be included in the sub-
stitutions, or whether Moussaoui will in fact seek to admit the substitu-
tions, it is foreseeable that the substantive information Moussaoui may
seek to admit will include events that cannot be conveyed to the jury
without jeopardizing national security, even if names or places are
altered. This is just one of a series of instances of this court interceding
in evidentiary matters that are properly the purview of the district court,
a procedure that is sure to erode the district court’s ability to carry out
its constitutional mandate to ensure a fair trial.
   3
     The usual remedy for the Government’s failure to comply with a dis-
trict court’s disclosure order is dismissal of the indictment. See, e.g.,
CIPA § 6(e)(2). However, like the majority and the district court, I
believe that the ends of justice are best served by a circumspect exercise
of discretion in creating an appropriate remedy.
                      UNITED STATES v. MOUSSAOUI                         59
saoui may admit into evidence, or elect not to admit, the substitutions,
subject, of course, to the district court’s ruling on admissibility. While
I appreciate that the majority’s solution to the difficult problem of
ensuring Moussaoui’s rights is an effort to put him as nearly as possi-
ble in the place where he would be if he were able to examine the wit-
nesses, I respectfully suggest that this solution places the district court
in a thoroughly untenable position. Moreover, this solution is contrary
to CIPA’s expectation that the Government shall provide proposed
substitutions for classified information, and it essentially places the
district court in the position of being an advocate in the proceedings.

   Additionally, as the majority recognizes, because "many rulings on
admissibility—particularly those relating to relevance—can only be
decided in the context of a trial, most of the witnesses’ statements
cannot meaningfully be assessed for admissibility at this time." (Slip
op. at 33). Asking the district court to pick and choose from among
the summaries to compile substitutions for Moussaoui’s use before
the Government’s evidence is forecast is a risky proposition at best.
The [          ] summaries paint a complete, if disjointed, picture of
the statements made by the witnesses to date; if the summaries are to
be used as a substitution for the witnesses’ testimony, they should be
used in their entirety, subject to the district court’s trial rulings on
admissibility of any given passage to which either party objects,
whether on hearsay grounds, as cumulative, as unduly prejudicial, or
upon any other evidentiary basis.4
   4
     I expect that we are setting ourselves out as super-arbiters of the
admission of evidence in this case. If the district court overrules an
objection by the Government to Moussaoui’s proffered materials for
inclusion in the substitutions, for example, it is fair to assume that the
Government might seek to appeal the district court’s ruling. Conversely,
if Moussaoui seeks inclusion of material but the district court sustains the
Government’s objection to the evidence, Moussaoui may seek to appeal.
The construct proposed by the majority will, I fear, lead to unnecessary
piecemeal review of the district court’s rulings with regard to the substi-
tutions it has been tasked to prepare. Indeed, as if to underscore my con-
cern, after we issued our first opinion in this appeal, the majority decided
to implement a new evidentiary remedy for the denial of Moussaoui’s
Sixth Amendment rights before the ink was even dry on the court’s pre-
vious opinion. This intrusion into the function of the district court belies
our proper role as an appellate court.
60                    UNITED STATES v. MOUSSAOUI
   Additionally, I disagree with the majority’s decision to vacate the
district court’s order striking the Government’s death notice at this junc-
ture.5

   In a prosecution under the Federal Death Penalty Act, 18 U.S.C.A.
§ 3591-3598 (West 2000 & Supp. 2003), the factfinder is required to
consider whether any mitigating factors weigh against imposing a
sentence of death. One potential mitigating factor specifically identi-
fied in the Act is the defendant’s role in the offense:

      (a) Mitigating factors. —In determining whether a sen-
      tence of death is to be imposed on a defendant, the finder
      of fact shall consider any mitigating factor, including the
      following:

                                    ...

          (3) Minor participation. —The defendant is pun-
          ishable as a principal in the offense, which was
          committed by another, but the defendant’s partici-
          pation was relatively minor, regardless of whether
          the participation was so minor as to constitute a
          defense to the charge.

18 U.S.C.A. § 3592(a)(3). In other words, if a defendant is guilty of
an offense, but played a small part in it, the jury (or, in a bench trial,
the judge) could find that he was not sufficiently culpable to warrant
the imposition of the death penalty.
  5
    The majority leaves open the possibility that if the substitutions com-
piled by the district court are inadequate, or if the jury is not properly
instructed as to the circumstances of the substitutions and their reliabil-
ity, the death notice could be stricken and other sanctions could be
imposed. In my view, however, Moussaoui’s inability to question the
witnesses critically impairs his ability to prepare a defense, particularly
(though not solely) as to a potential death sentence. Accordingly, as
explained more fully below, if Moussaoui must proceed to trial on the
basis of substitutions rather than the witnesses’ testimony, as we all agree
he must, the death penalty should be removed from the range of possible
sentences Moussaoui may face.
                     UNITED STATES v. MOUSSAOUI                       61
   Moussaoui argues that the witnesses could offer testimony that
would show he did not participate in an act that directly resulted in
death: they would testify, he contends, that he did not have an active
role in the planned September 11 attack, nor did he know of the plan
and fail to disclose that knowledge to investigators, who might have
been able to use that knowledge to prevent the attack, when he was
taken into custody and questioned prior to the attack. Moussaoui’s
theory of the case, as we understand it, is that even though he is a
member of al Qaeda who has pledged his allegiance to Osama bin
Laden, and even though he was willing to engage in terrorist acts, and
was indeed training to participate in terrorist acts, he was not involved
in the terrorist acts that occurred on September 11, 2001, nor did he
know of the plans before the attack took place. Instead, his participa-
tion was to involve later attacks, attacks that may or may not have
been planned to occur in the United States or against this country’s
interests abroad. We cannot know to any degree of certainty whether
the witnesses at issue would absolve Moussaoui of any responsibility
for any part of the September 11 operation, or knowledge of the
planned attack, nor do we know if a jury would find credible any such
testimony. However, because the Government has exercised its right
to preclude Moussaoui from examining the witnesses, and based on
the [           ] summaries in the present record, we must assume for
present purposes that they would so testify.

   Even if Moussaoui is permitted to admit substitutions derived from
the [          ] summaries, those substitutions cannot be considered
a functional equivalent of live (or deposition) testimony, nor are they
adequate or sufficient to substitute for testimony. Cf. Old Chief v.
United States, 519 U.S. 172, 187-89 (1997) (recognizing that stipula-
tion "may be no match for the robust evidence that would be used to
prove" the stipulated fact). Because the summaries are not responses
to the questions that Moussaoui would ask if given the opportunity to
depose the witnesses, and because the jury will not be able to see the
witnesses and judge their credibility, use of the summaries will neces-
sarily place severe limits on the evidence Moussaoui can present in
his defense, particularly during the penalty phase of a capital proceed-
ing. The ultimate question that must be resolved to determine whether
Moussaoui is eligible for the death penalty is this: Did he participate
in the September 11 attack, or know of the attack in advance? If
Moussaoui cannot ask this question of the witnesses who have direct
62                   UNITED STATES v. MOUSSAOUI
knowledge, he is undeniably and irretrievably handicapped in his abil-
ity to defend himself from a sentence of death. The Government may
argue that no one, other than Moussaoui himself, has stated he was
not involved. Moussaoui has no access to those who could exonerate
him from death eligibility, and the jury will not have any evidence
upon which to base a finding in this regard except, possibly, for
Moussaoui’s own testimony, which he is not obligated to provide.
Moussaoui will not be able to offer the most relevant evidence with
which he might be able to avoid the death penalty.

   After we issued our opinion, the Government filed a letter dated
May 12, 2004, purporting to "clarify certain factual matters." In that
letter, the Government stated that this court’s opinion erroneously
relied on a presumption that the Government’s attorneys had not been
privy to, nor had any input into, the [          ] witnesses at issue.
The Government had argued, in both the district court and this court,
that Moussaoui could not question the witnesses because any interfer-
ence in the [           ] process would be devastating to national
security. [



  ] (United States v. Moussaoui, No. 03-4162, Gov’t Supp. Ex Parte
Appx., at 8). The Government now concedes in the May 12 letter that
members of the prosecution team have in fact [
       ] pertaining to the prosecution of Moussaoui. [




   ] (Gov’t Ex Parte Appx. on Rehearing, at 63). While the May 12
letter does not necessarily contradict the Government’s previous
pleadings and statements during oral argument, it is easy to see why
the court concluded, based on the Government’s prior representations,
[



                                 ] information with actionable for-
eign intelligence value, [               ] that information is passed
                       UNITED STATES v. MOUSSAOUI                         63
to the prosecutors, who in turn will pass the information to Mous-
saoui’s defense team in accordance with their obligation under Brady
v. Maryland, 373 U.S. 83 (1963). Until now, no parallel access to the
[                    ] process has been available to Moussaoui.

   The Government’s May 12 letter, and its positions taken during the
hearing before the panel on June 3, 2004, only serve to reinforce my
conclusion that the district court was correct in holding that the death
penalty should not be within the range of sentencing options available
when, as here, the Defendant’s ability to mount a defense is severely
impaired. As the Government has made clear, the summaries of wit-
ness statements provided to the defense are not a complete account of
the witnesses’ responses [             ] the only [         ] responses
passed to the prosecution, and subsequently provided to the defense,
are those responses deemed [              ] to have actionable foreign
intelligence value. Thus, as the majority acknowledges, it is certainly
possible that the witnesses, [             ] may have provided infor-
mation that, although exculpatory as to Moussaoui, was not passed on
to the prosecution, and in turn to the defense team, because
[          ] the information had no actionable foreign intelligence
value.6 As the majority further recognizes, if [          ] have excul-
patory evidence that they have not passed on to the prosecution,
Moussaoui’s due process rights may be implicated. See United States
v. Perdomo, 929 F.2d 967, 971 (3d Cir. 1991) (stating that the prose-
cution is obligated under Brady to disclose all exculpatory evidence
"in the possession of some arm of the state"); see also Kyles v. Whit-
ley, 514 U.S. 419, 427-38 (1995) (noting the prosecutor’s duty to
learn of, and disclose, exculpatory evidence "known to the others act-
ing on the government’s behalf in the case, including the police").
The majority downplays this possibility, calling it unlikely, and states
  6
    Although the prosecutorial function is to achieve justice, and as such
prosecutors must seek out both inculpatory and exculpatory evidence, the
Government makes clear that [

      ] (May 12 letter, at 3). [         ] have no duty [             ] excul-
patory evidence unless that evidence would have actionable foreign intel-
ligence value. Accordingly, even though [               ] "have a profound
interest in obtaining truthful information," (Slip op. at 48, n.31), they do
not have an interest in ensuring that justice is achieved in this case.
64                    UNITED STATES v. MOUSSAOUI
that it need not be further explored because "there is no evidence
before us that the Government possesses exculpatory material that has
not been disclosed to the defense." (Slip op. at 17, n.14). This conclu-
sion is, at best, misguided. Because of the highly classified nature of
the evidence at issue in this case, there is no way this court or Mous-
saoui could know whether an arm of the Government possesses excul-
patory evidence that does not have foreign intelligence value; indeed,
even the prosecution would not have access to any such evidence,
[           ] distribute only those witness summaries that have foreign
intelligence value. How there could ever be any evidence before us
from which we could conduct a Brady analysis under these circum-
stances is a mystery.

   Further, the reliability (or lack thereof) of the witnesses’ statements
poses real stumbling blocks to the admission of those statements. The
Government admits that the summaries are simply accurate reflec-
tions of the witnesses’ responses [                ] However, we do not
have all of the witnesses’ statements; instead, we are privy only to
those portions of their statements that are deemed to have actionable
foreign intelligence value. We do not have [                  ] we do not
have [                ] we do not know [                                 ]
Although the Government assures us that the statements have some

  [




                                                                         ]
                      UNITED STATES v. MOUSSAOUI                      65
indicia of reliability [




        ] Without this context, however, we have only the bare state-
ment, which the jury may consider to be true [                ] This
is a slim reed indeed upon which to base a jury verdict, especially
where a man’s life hangs in the balance.

   I cannot disagree with the majority’s statement that "[b]ecause the
Government will not allow Moussaoui to have contact with the wit-
nesses, this court must provide a remedy adequate to protect Mous-
saoui’s constitutional rights." (Slip op. at 55). However, the
majority’s effort to craft such a remedy rings hollow. The majority
boldly states that "input by the prosecution team into the [          ]
process has worked no unfairness on Moussaoui," but directs that, "to
provide Moussaoui with the fullest possible range of information
from the witnesses," the district court must permit Moussaoui to
[
          ] (Slip op. at 49). To say this is a "remedy" must be of cold
comfort to Moussaoui. Although he may propose [



      ] The entire process is cloaked in secrecy, making it difficult, if
not impossible, for the courts to ensure the provision of Moussaoui’s
rights. Although the prosecution is laboring under the same con-
straints [             ]8 Moussaoui has constitutional rights, not
extended to the prosecution, that are implicated by this procedure.
See, e.g., Chambers v. Mississippi, 410 U.S. 284, 302 (1973) ("Few
rights are more fundamental than that of an accused to present wit-
nesses in his own defense."); Washington v. Texas, 388 U.S. 14, 19
  8
   The prosecution has had one distinct advantage not afforded to Mous-
saoui: it has been able to [         ] over the course of many months,
[             ] which may have aided the shaping of its trial strategy.
This fact alone belies the majority’s assertion that no unfairness has
befallen Moussaoui.
66                    UNITED STATES v. MOUSSAOUI
(1967) ("The right to offer testimony of witnesses, and to compel
their attendance, if necessary, is in plain terms the right to present a
defense. . . . This right is a fundamental element of due process of
law."). Because the majority decrees that this so-called "remedy" will
fulfill this court’s obligation to protect Moussaoui’s constitutional
rights, today justice has taken a long stride backward.

   To leave open the possibility of a sentence of death given these
constraints on Moussaoui’s ability to defend himself would, in my
view, subvert the well-established rule that a defendant cannot be sen-
tenced to death if the jury is precluded from considering mitigating
evidence pertaining to the defendant’s role in the offense. See, e.g.,
Lockett v. Ohio, 438 U.S. 586, 604, 608 (1978). See also Skipper v.
South Carolina, 476 U.S. 1, 5 (1986); United States v. Jackson, 327
F.3d 273, 299 (4th Cir. 2003) ("During sentencing in a capital case,
the factfinder may ‘not be precluded from considering, as a mitigat-
ing factor, any aspect of a defendant’s character or record and any of
the circumstances of the offense that the defendant proffers as a basis
for a sentence less than death.’") (quoting Lockett, 438 U.S. at 604).
A sentence of death requires "a greater degree of reliability" than any
lesser sentence. Lockett, 438 U.S. at 604 (citing Woodson v. North
Carolina, 428 U.S. 280, 304-05 (1976)).

   Here, the reliability of a death sentence would be significantly
impaired by the limitations on the evidence available for Moussaoui’s
use in proving mitigating factors (if he is found guilty). Although it
has been repeated often enough to have the ring of cliché, death is dif-
ferent. It is the ultimate penalty, and once carried out, it is irrevocable.
A sentence of death cannot be imposed unless the defendant has been
accorded the opportunity to defend himself fully; it cannot be
imposed without the utmost certainty, the fundamental belief in the
fairness of the result. Because Moussaoui will not have access to the
witnesses who could answer the question of his involvement, he
should not face the ultimate penalty of death. Accordingly, I would
uphold the district court’s sanction to the extent that it struck the Gov-
ernment’s death notice. On this basis, I must dissent.
