Zacarias Moussaoui was arrested on August 16, 2001 in Minnesota. Instructors at a flying school he attended were suspicious of him because he paid for his $8,000 flight classes in cash and expressed “unusual interest” in flying big airplanes and the fact that a plane’s doors could not be opened during flight. He was initially held on immigration charges, and was in INS custody on September 11, 2001. On December 11, 2001, Moussaoui was indicted in Virginia on charges of conspiracy related to the September 11 attacks – the only individual in the United States who has been charged with involvement in the attacks. Moussaoui acknowledges being a disciple of Osama bin Laden and a member of al Qaeda, but he denies any knowledge of the September 11 plot. He faces the death penalty, if convicted.
The decision to prosecute Moussaoui in a civilian criminal court was in some sense surprising, as it was announced less than a month after President Bush’s November 2001 Order authorizing military commissions. According to Defense Department officials, the Pentagon was not involved in the executive branch’s decision to bring a criminal case. As Vice President Dick Cheney explained, it was the Justice Department’s decision to proceed in federal court, “primarily based on an assessment of the case against Moussaoui, and that it can be handled through the normal criminal justice system without compromising sources or methods of intelligence”.[and the view that] there’s a good strong case against him.” Michael Chertoff – at the time, the assistant attorney general in charge of the Justice Department’s Criminal Division – championed the use of civilian courts, and later, during the proceedings, stressed to a federal appeals court the risk that moving the case to a military commission would likely disrupt intelligence and law enforcement cooperation with foreign governments.
Moussaoui’s insistence on representing himself and his erratic, often inflammatory behavior in court initially led some to complain about the trial’s “circus-like” atmosphere. But the unanticipated apprehension in Pakistan, in September 2002, of senior Al Qaeda figure Ramzi Bin al-Shibh, changed the focus of the proceedings. Bin al-Shibh had been named in the Moussaoui indictment as a key participant in the September 11 plot, who had allegedly sent Moussaoui significant sums of money. But in interrogations conducted in an undisclosed site outside the United States, Bin al-Shibh reportedly told CIA interrogators that Moussaoui’s Al Qaeda handlers had considered Moussaoui mentally unstable, and had not included him in the September 11 planning.
On January 31, 2003, District Court Judge Leonie Brinkema found strong reason to believe that Bin al-Shibh might provide “material favorable testimony on the defendant’s behalf – both as to guilt and potential punishment,” and ordered that the defendant be permitted to take the deposition of Bin al-Shibh, to be conducted by satellite video transmission, with a time-delay mechanism to permit classified or sensitive information to be deleted in real time during the deposition.
Federal prosecutors sought review of the order in the U.S. Court of Appeals for the Fourth Circuit. They maintained that “aliens seized and detained overseas as enemy combatants” – like Bin al-Shibh – “are beyond the authority of the federal courts.” They urged the court to refrain from “second-guessing quintessentially military and intelligence judgments about the detention of combatants overseas,” arguing that enforcing the Sixth Amendment right to confront witnesses would establish a precedent putting the military to a “Hobson’s choice between risking a constitutional violation that would scuttle a criminal prosecution back home or altering the conduct of warfare on a distant battlefield to preserve evidence or produce witnesses.” Assistant Attorney General Chertoff, arguing for the government, warned that granting Moussaoui’s request to depose Bin al-Shibh would cause “immediate and irreparable” harm to the United States by interrupting military interrogations.
The court of appeals dismissed the government’s appeal on June 26, 2003, finding that the legal question was not yet ripe (as the government had not yet disobeyed the lower court’s order). On July 14, 2003, following denial of motions for reconsideration by the court of appeals, the government formally notified Judge Brinkema that it would indeed defy her order because allowing “an admitted and unrepentant terrorist (the defendant) [to question] one of his al Qaeda confederates” would necessarily result in the unauthorized disclosure of classified information”, a scenario unacceptable to the Government.”
In response to this refusal, the judge had to determine what, if any, sanction should be imposed upon the government. Amid significant mixed signals from the executive as to whether it would move the case to a military commission if it ultimately lost on the constitutional question in federal court, Judge Brinkema ruled, on October 2, 2003, that the prosecution would be precluded from presenting evidence that the defendant was involved in or had knowledge of the planning or execution of the September 11 attacks, thus foreclosing the possibility of a death sentence. Again, the government appealed to the Fourth Circuit Court of Appeals.
On September 13, 2004, the court of appeals finally issued its decision. The court upheld the district court in finding that the defendant had a right to some sort of “access” to Bin al-Shibh and the other witnesses. It reversed, however, the district court’s judgment that it would not be possible to craft adequate “substitutions” – written excerpts from statements made by the detainees while in custody – for actual access by Moussaoui to Bin Al-Shibh and the others. The case was remanded for the district court and the parties to fashion acceptable substitutions.
On January 10, 2005, Moussaoui petitioned for review by the Supreme Court.
 Katharine Q. Seelye, “Justice Department Decision to Forego Tribunal Bypasses Pentagon,” New York Times, December 13, 2002, available at http://www.law.uchicago.edu/tribunals/nyt_121301.html (accessed January 26, 2005).
 Joseph I. Lieberman, “No Excuse for Second-Class Justice,” Washington Post, January 2, 2002) (quoting Vice President Cheney), available at http://www.law.uchicago.edu/tribunals/wp_010202.html (accessed January 26, 2005).
 In June 2003, Chertoff was appointed to the Third Circuit Court of Appeals. In January 2005, President Bush announced Chertoff’s nomination to head the Department of Homeland Security. Jim VandeHei, “Bush Nominates Judge to Lead Homeland Agency, Justice Department Veteran Helped Draft Patriot Act,” Washington Post, January 12, 2005, available at http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2005/01/12/MNGMSAOR8O1.DTL (accessed January 26, 2005).
 Larry Margasak, “Government Argues Moussaoui Can’t Quiz Witness,” AP, June 3, 2003, available at http://www.fortwayne.com/mld/fortwayne/news/5998956.htm (accessed January 26, 2005).
 The court has, over Moussaoui’s objections, appointed stand-by counsel to assist Moussaoui’s defense and act on his behalf. See Order, U.S. v. Moussaoui (E.D. Va. June 14, 2002) (No. 01-455-A) (dismissing court-appointed counsel, authorizing Moussaoui to represent himself (pro se), and mandating appointment of stand-by counsel), available at http://news.findlaw.com/hdocs/docs/moussaoui/usmouss61402proseord.pdf (accessed January 26, 2005); see also Order, U.S. v. Moussaoui (E.D. Va. September 26, 2002) (No. 01-455-A) (denying defendant Moussaoui’s Motion to Stop Dunham [sic] Playing the Superstar), available at http://news.findlaw.com/hdocs/docs/moussaoui/usmouss92602ord.pdf (accessed January 26, 2005).
 Toni Locy, “Some Fear Moussaoui-Trial Mockery,” USA Today, May 16, 2002 (“some legal experts and lawmakers say that Ashcroft’s fears of a circus-like trial might be realized”.”If they don’t watch it, a man like that will use our courts to his advantage and make a mockery out of our rules and our jurisprudence,” says Sen. Richard Shelby, R-Ala.”), available at http://www.usatoday.com/news/washington/2002/05/17/moussaoui.htmhttp://www.help-for-you.com/news/Dec2001/Dec14/PRT14-17Article.html (accessed January 26, 2005). (accessed January 26, 2005); Jim Malone, “U.S. Prosecutors Prepare for Moussaoui Trial,” VOANews.com, December 14, 2001 (“the Moussaoui trial is certain to draw intense media attention, and some analysts fear that the proceedings could take on a circus-like atmosphere”), available at
 Superseding Indictment, pp. 6, 10-13, 17, U.S. v. Moussaoui (E.D. Va. July 16, 2002) (No. 01-455-A), available at http://news.findlaw.com/hdocs/docs/moussaoui/usmouss71602spind.pdf (accessed January 26, 2005).
 “Under interrogation, Bin al-Shibh has reportedly given the CIA some valuable information, but also one highly unwelcome tidbit: Al Qaeda thinks Moussaoui is as crazy as we do.” Jonathan Turley, “Sanity and Justice Slipping Away,” Los Angeles Times, February 10, 2003.
 See Memorandum Opinion,, pp. 16-17, U.S. v. Moussaoui (E.D. Va. March 10, 2003) ((No. 01-455-A), available at http://notablecases.vaed.uscourts.gov/1:01-cr-00455/docs/68354/1.pdf (accessed January 26, 2005). See also Philip Shenon, “Setback for Government in Bid for 9/11 Trial,” New York Times, June 3, 2003 (quoting Judge Brinkema).
 Order, U.S. v. Moussaoui (E.D. Va. January 31, 2003) (No. 01-455-A), available at http://notablecases.vaed.uscourts.gov/1:01-cr-00455/docs/68180/1.pdf (accessed January 26, 2005). More details are provided in Brief for Petitioners-Appellants, p. 13, U.S. v. Moussaoui (4th Cir. March 14, 2003) (No. 03-4162).
Brief for Petitioners-Appellants, p. 13, U.S. v. Moussaoui (4th Cir. March 14, 2003) (No. 03-4162). p. 3.
 Ibid. p. 15.
 Ibid. p. 31.
 “U.S. Fears Damage From Moussaoui Witness,” AP, June 4, 2003.
 U.S. v. Moussaoui (4th Cir. June 26, 2003) (No. 03-4162), pp. 13-14, available at http://news.findlaw.com/hdocs/docs/moussaoui/usmouss62603opn.pdf (accessed January 26, 2005).
 Government’s Position Regarding the Court-Ordered Deposition, p. 1, U.S. v. Moussaoui (E.D. Va. July 14, 2003) (No. 01-455-A), available at http://news.findlaw.com/hdocs/docs/moussaoui/usmouss71403pnodep.pdf (accessed January 26, 2005).
 Philip Shenon, “Future of Terror Case Is In Judge’s Hands,” New York Times, July 16, 2003 (“Administration officials said that if the charges were dismissed, Mr. Moussaoui would almost certainly be moved to a military tribunal, ending the Justice Department’s involvement in the case and jeopardizing plans to prosecute other Qaeda suspects in civilian court.”). But see William J. Haynes, General Counsel of DOD: “Mr. Moussaoui is in the Article III courts, and as far as I’m concerned that’s where he’ll remain. So I don’t want to speculate about what might happen to him.” Prosecuting Terrorists, Civil or Military Courts”, transcript of panel held at the American Enterprise Institute, August 8, 2003, available at http://www.aei.org/events/eventID.556/transcript.asp (accessed January 26, 2005). On August 29, 2003, Judge Brinkema ordered similar satellite depositions for two additional suspected terrorists in U.S. detention. On September 10, 2003, the government notified the court that it would refuse to comply with this order as well. Order, U.S. v. Moussaoui (E.D. Va. August 29, 2003) (No. 01-455-A), available at http://news.findlaw.com/hdocs/docs/moussaoui/usmouss82903ord.pdf (accessed January 26, 2005); Government’s Position Regarding the Depositions Ordered August 29, 2003, U.S. v. Moussaoui (E.D. Va. September 10, 2003) (No. 01-455-A), available at http://news.findlaw.com/hdocs/docs/moussaoui/usmouss91003gopp.pdf (accessed January 26, 2005).
 Order, U.S. v. Moussaoui (E.D. Va. October 2, 2003) (No. 01-455-A), available at http://news.findlaw.com/hdocs/docs/moussaoui/usmouss100203ord.pdf (accessed January 26, 2005).
 See Brief for the United States, U.S. v. Moussaoui (4th Cir. October 31, 2003) (No. 03-4792), available at http://news.findlaw.com/hdocs/docs/moussaoui/usmouss102403gbrf.pdf (accessed January 26, 2005).
 U.S. v. Moussaoui (4th Cir. September 13, 2004) (No. 03-4792), available at http://news.findlaw.com/hdocs/docs/moussaoui/usmouss91304opn.pdf (accessed January 26, 2005).
 Larry Margasak, “Moussaoui Takes Pretrial Appeal to Supreme Court,” AP, January 10, 2005, available at http://www.signonsandiego.com/news/nation/terror/20050110-1422-moussaouiappeal.html (accessed January 26, 2005). The brief itself has not been released.