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.^[1]  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.”^[2]  Michael Chertoff – at the time, the assistant attorney general in charge of the Justice Department’s Criminal Division^[3] – 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.^[4]

Moussaoui’s insistence on representing himself^[5] and his erratic, often inflammatory behavior in court initially led some to complain about the trial’s “circus-like” atmosphere.^[6]  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.^[7]  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.^[8]

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,”^[9]  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.^[10]

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.”^[11] They urged the court to refrain from “second-guessing quintessentially military and intelligence judgments about the detention of combatants overseas,”^[12] 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.”^[13] 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.^[14]

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).^[15] 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.”^[16] 

 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,^[17] 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.^[18] Again, the government appealed to the Fourth Circuit Court of Appeals.^[19]

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.^[20] 

On January 10, 2005, Moussaoui petitioned for review by the Supreme Court.^[21]