## Facts

- Zacarias Moussaoui was indicted on multiple conspiracy charges arising from the September 11, 2001 terrorist attacks.
- The United States held several high-value al Qaeda detainees overseas in military custody as “enemy combatant” witnesses.
- Moussaoui sought access to these detainees, asserting their testimony would be material and favorable to the defense.
- The district court found certain detainees could provide material, favorable testimony and ordered Rule 15 depositions using secure video procedures.
- After an earlier remand to consider whether testimony could be provided through substitutions, the district court rejected the government’s proposed substitutes and again ordered depositions.
- When the government declined to produce the witnesses, the district court dismissed the indictment and barred the government from introducing evidence linking Moussaoui to the 9/11 attacks.
- The government appealed, arguing the orders intruded on executive national-security powers and that the sanctions were improper.

## Issues

1. Whether a criminal court may authorize defense access to enemy-combatant witnesses held in executive military custody when their testimony is material and favorable.
2. Whether the government’s proposed substitutions for such witnesses’ testimony can satisfy the defendant’s Fifth and Sixth Amendment trial rights.
3. Whether separation-of-powers limits bar judicial orders affecting access to high-value detainees captured abroad.
4. Whether dismissal of the indictment and evidentiary preclusion were permissible sanctions for the government’s refusal to comply with the deposition orders.

## Decision

- The Fourth Circuit affirmed the determination that certain detainee witnesses could provide material, favorable testimony for Moussaoui.
- The court rejected the government’s categorical separation-of-powers objection to judicially ordered access in this context.
- The court agreed the government’s initial substitutions were inadequate to protect the defense.
- The court vacated the district court’s ruling that no adequate substitution could be crafted and remanded to develop constitutionally sufficient substitutions under appellate guidance.
- The court vacated the dismissal and evidentiary sanctions, directing reconsideration only after efforts to craft adequate substitutions.

## Legal Principles

- The Fifth and Sixth Amendments apply in terrorism prosecutions; courts must enforce fair-trial and defense-presentation rights even when national security is implicated.
- When national-security constraints prevent ordinary access to witnesses, the government may be required to provide constitutionally sufficient substitutes that convey the substance of material, favorable testimony.
- Adequacy of substitutions is functional: substitutes need not mirror live testimony or depositions but must preserve the defense’s ability to present exculpatory evidence in a meaningful way.
- Separation of powers does not eliminate judicial authority to order procedures that protect constitutional trial rights; courts should seek an accommodation between fair-trial requirements and legitimate security interests.
- Severe sanctions for noncompliance with discovery-related orders should not be imposed before resolving whether constitutionally adequate substitutions can cure the impairment to the defense.

## Conclusion

The Fourth Circuit held that Moussaoui was entitled to access to the substance of material, favorable testimony from enemy-combatant witnesses, but that this access could be provided through carefully crafted substitutions rather than depositions, and it vacated the district court’s dismissal and evidentiary sanctions pending development of constitutionally adequate substitutes.


United States v. Moussaoui, 365 F.3d 292 (4th Cir. 2004)