Terrorism

• Author: International Law Group

Zacarias Moussaoui has been charged with terrorist offenses and is considered by some the 20th hijacker of the September 11, 2001, attacks. According to the indictment, there are parallels in the training of the hijackers and Moussaoui, first at an al Qaeda training camp and later at a flight school in the U.S. Moussaoui sought access to several witness (who are considered enemy combatants and whose names are classified) who are being held abroad, to depose them pursuant to the Federal Rules of Criminal Procedure. The Government refused to produce those witnesses and instead proposed substitutions for the witness depositions.

The district court opined that those witnesses could provide material, favorable testimony on Moussaoui's behalf, and imposed sanctions on the Government for not providing access. The Government appealed the district court's rulings as to Moussaoui's access to those witnesses.

The U.S. Court of Appeals for the Fourth Circuit, in a fragmented opinion, affirms in part, vacates in part, and remands. The Court agrees that the witness deposition substitutions proposed by the Government are inadequate and that proper substitutions must be provided to Moussaoui. Also, the Court reverses the sanctions imposed on the Government.

The Government first argues that the district court should not have ordered the production of enemy combatant witnesses for depositions, and notes that they are non-citizens outside the U.S. boundaries.

"The Government's argument rests primarily on the well established and undisputed principle that the process power of the district court does not extend to foreign nationals abroad. ... ('The United States does not have subpoena power over a foreign national in a foreign country.') Were this the governing rule, Moussaoui clearly would have no claim under the Sixth Amendment. ... This is not the controlling principle, however."

"The Government's argument overlooks the critical fact that the enemy combatant witnesses are in the custody of an official of the United States Government. Therefore, we are concerned not with the ability of the district court to issue a subpoena to the witnesses, but rather with its power to issue a writ of habeas corpus ad testificandum ('testimonial writ') to the witnesses' custodian. See 28 U.S.C.A. Section 2241( c)(5) ..." [Slip op. 17-18]

Therefore, the critical question is not whether the district court can serve the witnesses, but whether it can serve the custodian. Here...