## Facts

- Zacarias Moussaoui was indicted on multiple conspiracy charges connected to the September 11, 2001 attacks.
- Moussaoui sought to obtain testimony from several detained al Qaeda members held in U.S. custody and designated by the government as “enemy combatants.”
- The district court determined, based on its review of classified materials, that these witnesses could provide evidence that was material and favorable to the defense.
- The district court authorized limited access through Rule 15 depositions, but the government refused to produce the witnesses for depositions because of classification and national security concerns.
- The government proposed written “substitutions” (summaries/redactions) in place of depositions; the district court rejected them as inadequate.
- After the government continued to decline production, the district court imposed sanctions that limited the prosecution’s ability to seek the death penalty and to use certain evidence.

## Issues

1. Whether a district court may authorize Rule 15 access to testimony from witnesses held by the Executive as “enemy combatants” when the testimony is material and favorable to the defense.
2. Whether the district court clearly erred in finding the detained witnesses could provide material, favorable testimony for Moussaoui.
3. Whether the government’s proposed substitutions under CIPA and related procedures adequately preserved Moussaoui’s rights to obtain the substance of favorable evidence.
4. Whether adequate substitutions could be crafted even if live production of the witnesses was not feasible.
5. Whether sanctions imposed for the government’s refusal to produce the witnesses were proper at that stage.

## Decision

- The Fourth Circuit affirmed in part, vacated in part, and remanded.
- It held the district court did not exceed its authority by ordering access through Rule 15 depositions, and it rejected the claim that the Executive had an absolute veto over such judicial process in a criminal case.
- It affirmed the finding that the enemy combatant witnesses could provide material, favorable testimony for the defense.
- It agreed that the government’s initial substitutions were inadequate.
- It reversed the district court’s conclusion that no adequate substitution was possible, and remanded for the parties and court to craft adequate substitutions under court-provided guidelines.
- It vacated the district court’s sanctions as premature in light of the requirement to attempt adequate substitutions.

## Legal Principles

- A criminal defendant has due process and Sixth Amendment interests in obtaining the substance of evidence that is material and favorable to the defense, even in terrorism prosecutions.
- Executive detention and classification decisions do not create an absolute bar to judicial enforcement of fair-trial requirements in a criminal case.
- CIPA permits the use of substitutions (such as stipulations or detailed summaries) to protect classified information, but only if they provide the defendant the substantial equivalent of the favorable information.
- Substitutions must not distort or omit key exculpatory elements; skeletal or overly sanitized summaries may be insufficient.
- When adequate substitutions are feasible, sanctions for non-production of classified witnesses may be improper or premature.

## Conclusion

The Fourth Circuit held that Moussaoui was entitled to the substance of material, favorable testimony from detained enemy combatant witnesses, but that this right could be satisfied through carefully crafted CIPA substitutions rather than physical production; it vacated sanctions and remanded for development of adequate substitutes.


United States v. Moussaoui, 382 F.3d 453 (4th Cir. 2004)