The 4h Circuit’s Mixed Ruling
The government's case is restored but the terrorist has gained ground.


Andrew C. McCarthy

It is a trite truism that bad cases make bad law. The federal government’s prosecution of Zacarias Moussaoui in connection with the September 11 attacks may be blazing the path to a new truism: Law–at least in its current form–makes bad national security.

Late Thursday a divided three-judge panel of the U.S. Court of Appeals for the Fourth Circuit issued its much-anticipated decision on the government’s appeal of district judge Leonie M. Brinkema’s rulings barring the death penalty and evidence of Moussaoui’s participation in the 9/11 plot. The prosecution prevailed, although only in the most bottom-line of senses: The death penalty is back on the table as is the 9/11 proof. The appellate court dealt the government some setbacks, however, and its rationale raises serious questions about whether legal proceedings that comport with our criminal-justice system’s lofty standards of due process are not inimical to the national-security imperative to defeat our enemies in wartime. Further, the opinion–many important portions of which are redacted because they relate to classified intelligence derived from captured enemy combatants–suggests weaknesses in the case the government chose to bring against Moussaoui, although it also indicates there is overwhelming evidence that the defendant is surely guilty of heinous crimes.

Taking this last point first allows for recounting some important background. Moussaoui is a brazen, avowed, unapologetic member of al Qaeda who has admitted–indeed brayed–that he hates the United States and was in America intending to execute a massive terrorist attack. His “defense,” if that is the right word for it, is that this would-be attack was not the 9/11 plot but rather participation in an anticipated round-two of suicide hijackings. Moreover, Moussaoui is not an American, but rather an illegal alien who was detainable because he was out of status. That detention occurred, several weeks before the 9/11 attacks, because Moussaoui, while taking flight training to prepare himself for his mission, conducted himself in ways that caused his trainers to suspect he might be a terrorist–reportedly, exhibiting a preternatural interest in the operation of cabin doors and appearing far more interested in how to steer a jumbo jet than how to take off or land in one.

All this is to say that Moussaoui should be the poster child for unlawful enemy combatants subject to military tribunals rather than civilian trials. There are no doubt cases on the margins that cause queasiness among people of good will about whether the boundaries of enemy combatancy could be stretched too widely. This, however, is not one of them. Here we have an alien operative of the foreign terrorist network with which we are engaged in active military hostilities who infiltrated our country and was secretly plotting to mass murder Americans. He is by definition an unlawful combatant and a war criminal.

The government, however, elected to do two things which were well-intentioned but highly debatable. First, it indicted him in a civilian court, thus vesting him with the full panoply of rights accorded to an American criminal defendant, including, saliently for present purposes, our lushly generous guarantees of access to witnesses and information–guarantees that implicate not only what is clearly exculpatory but include the far broader categories of that which (a) is only potentially exculpatory, (b) is relevant and potentially helpful, and (c) might induce a jury to vote against execution even if it does not suggest innocence.

Second, the government chose to charge him with complicity in the specific 9/11 attacks. Now, it must be observed that we have not seen the government’s entire case, and usually it ends up being much stronger than the pundits forecast it to be before trial–just ask Martha Stewart. But it is safe to assume the following: The evidence that Moussaoui is a member of the overall al Qaeda conspiracy to make war on the United States, and that he is an operative who plotted to use a weapon of mass destruction against Americans–proof that would virtually guarantee a sentence of life imprisonment–is stronger, perhaps much stronger, than the evidence that he was a participant in the narrower 9/11 plot. That is, the proof that he was part of an al Qaeda plan to pilot planes into buildings is more certain than that he was part of the specific scheme to do so on 9/11.

So why charge him with the narrower scheme when guilt on the larger scheme will put him out of commission? The answer is threefold. First and foremost, the government is entirely correct that if Moussaoui is at all complicit in the 9/11 attacks he should be brought to justice, and the government mustn’t shirk from trying to make its case just because it might be a tough case. Second, Moussaoui should be executed and, under federal capital law, the case for the death penalty is geometrically stronger if Moussaoui is proved to be directly responsible for over 3000 murders than if he is only indirectly responsible (i.e., if he was not in on the narrow 9/11 plot but was part of the al Qaeda conspiracy that bears ultimate responsibility). And third, we should not lose sight of the fact that while Moussaoui’s membership in the overarching al Qaeda conspiracy and his intent to commit a terrorist attack now seem indisputable, that was not the case at the time he was indicted; instead, this has been elucidated publicly by outbursts Moussaoui has made in court and the fact that he has conceded in legal proceedings that he was plotting an operation–a concession, by the way, that could very well be a tactical maneuver to avoid the death penalty by a terrorist who in fact was a participant in the 9/11 plot.

While the government thus plainly had its reasons, its charging decision comes at a cost. Once Moussaoui stands accused of being part of the 9/11 plot and denies that this is the case, a couple of vitally important things happen. First, under our system, he is entitled to be presumed innocent at a jury trial. That is, however crazy this seems, you need to put out of your mind that you already know he is guilty of crimes that should put him away forever; he gets to go to trial with the prevailing view that he was not involved in 9/11. Second, under our judicial system, although he is a non-American and a hostile enemy, he gets rights under our Constitution to due process of law and to compel the appearance of witnesses and production of information that might be helpful to his defense. Thus, the issue of access to captured enemy combatants comes to the fore.

The government, of course, has been rolling up al Qaeda since October 2001 and has captured several top operatives, including Khalid Sheik Mohammed, Ramzi bin al-Shibh and Abu Zubaydah. The Fourth Circuit’s opinion carefully and appropriately omits mention of these names and the substance of any information they may have provided. But their apprehension has been widely reported, and it is fair to infer from the proceedings in the district court and the Fourth Circuit’s opinion that at least some of them have made statements that, if repeated in court, would bolster Moussaoui’s claim that he was not involved in 9/11.

Applying standard rules of access to potentially exculpatory evidence, Judge Brinkema ruled that the government was obligated to make the captured combatant witnesses available to Moussaoui. The government declined. Here, the government walks a fine line–and perhaps the best thing about the Fourth Circuit’s opinion is its acknowledgement that this is a proper line, not a tactical one.

Obtaining intelligence from captured combatants during wartime is critical to the security of our nation and our troops on the battlefield. Interrupting interrogations can result in the loss of information that might prevent future terrorist attacks. In the sensitive conduct of foreign relations in wartime, the president must be able to assure confidentiality–unhampered by judicial second-guessing–in order promote continued cooperation of key allies. Most importantly, as the Supreme Court has recognized, according rights to enemies in wartime–having judges undermine commanders in the field–would diminish the prestige of our military in the eyes of both foes and “wavering neutrals,” and result in inter-branch conflict that would bring aid and comfort to the enemy.

Nevertheless, in our system, the Fourth Circuit held that these grave national-security considerations must give way if the government chooses to charge a defendant in a judicial proceeding and its obstinacy about disclosure has the effect of depriving that defendant of information that may be critical to his defense. The executive branch maintains the option of refusing to comply with court orders to make witnesses available, but it does so on pain of having charges or entire indictments dismissed.

In this aspect, the Fourth Circuit’s decision is a defeat for the government. The Court upheld the portions of Judge Brinkema’s ruling which found that the captured combatants had information that might be helpful to Maoussaoui’s defense, and that there was no separation-of-powers violation of the executive’s war-making function in ordering the government to interrupt the interrogation of captured combatants so that Moussaoui could take their depositions.

The Fourth Circuit, however, reversed Judge Brinkema on the central question whether, given the government’s refusal to comply with her production orders, there was any adequate substitute for the combatants’ deposition. This implicates the Classified Information Procedures Act (CIPA), which established a set of rules that apply when top-secret information is relevant to key issues in a public trial. The Fourth Circuit held that Moussaoui’s case does not precisely fall under CIPA for technical reasons, but agreed with the district judge that CIPA’s principles provided a useful framework for deciding the access-to-combatants question.

Under CIPA, once a court finds that classified information is relevant, the government has the choice of either declassifying it so that it can be used or proposing a substitute the keeps the information secret but allows the defendant whatever benefit the information would have proved. A concrete example may be helpful here. Several years ago, I prosecuted a terrorist organization for levying war against the United States. During part of the conspiracy, the defendants were training to commit terrorist acts against the U.S. (including the 1993 WTC bombing) but they claimed in their defense that all they were really doing was preparing to support the Afghan mujahideen in its struggle to oust the Soviets (which, inconveniently, had ended in 1989 when the Soviets left Afghanistan). The defense thus demanded access to classified files that might bear on the American intelligence community’s involvement in aiding the mujahideen; the facile theory was that they couldn’t have been making war on the U.S. if they were doing the same thing the U.S. was doing. CIPA was invoked. As a result, my defendants were not permitted to comb through intelligence files and call sensitive witnesses, but we were required to stipulate that the government had provided economic and military support to the mujahideen through a third country. That is, the defense got the limited benefit of what the evidence would have shown, but not the evidence itself.

CIPA provides that if an adequate substitute for the classified evidence cannot be found, and the government continues to resist declassification of the evidence for use at trial, the Court may respond by dismissing charges. Where the Fourth Circuit and Judge Brinkema parted company in Moussaoui’s case was on the sufficiency of a substitution. The district judge had found that no factual concession the government was willing to make was the equal, for Moussaoui’s purposes, of access to the captured combatants; consequently, she dismissed the 9/11 charges and the death penalty notice.

The Fourth Circuit agreed that the government’s proposals, to date, have been lacking. Nevertheless, the panel opined that an adequate substitution can be found which would communicate to the jury the exculpatory information. The court directed the parties and Judge Brinkema to work together to develop that substitution. While this revives the prosecution for now, the government does not come out unscathed. To the extent the captured combatants have made statements that are incriminating of Moussaoui, the government, consistent with a Supreme Court case decided only a few weeks ago, may not place that information before the jury. Only the defendant is permitted to benefit from this CIPA process since it is deemed to be a problem of the government’s own making.

The case is thus back on track, sort of. It is not yet clear whether it will stay that way. The Fourth Circuit has provided a mixed bag, and both sides will have reason to consider an appeal to the Supreme Court. Even if there is no immediate appeal, it is a lot easier to order parties to work out a substitute than it is actually to work out a substitute. Additional long delay is certainly conceivable.

Meanwhile, Moussaoui’s case, however important, is transcended by issues of far greater dimension–going to the whole notion of prosecuting terrorists as criminal defendants in judicial proceedings. Terrorists are a national-security peril: they threaten the existence of our constitutional order, and we have to wipe them out; we can’t simply manage the menace. The criminal justice system is not designed to fight a battle that the government that the government must win.

To the contrary, the criminal justice is designed to insure that the government must lose unless the powerful presumption that the accused is innocent can be overcome. If we are to remain a nation dedicated to due process of law, we cannot warp our judicial system in the name of making it look like it works against terrorists–the precedents we create in so doing will damage the quality of justice Americans must be able to expect if they are accused of crimes. Yet, if we are to defeat militant Islam, mass murderers cannot be permitted to revolve out of courthouse doors by plying the very Bill of Rights it is their aim to destroy. It’s time for a new paradigm.

Andrew C. McCarthy, a former chief assistant U.S. attorney who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others, is an NRO contributor.