U.S. v. Moussaoui

• Decision Date: 14 July 2003
• Docket Number: No. 03-4162.,03-4162.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Zacarias MOUSSAOUI, Defendant-Appellee, ABC, Incorporated; Associated Press; Cable News Network, LP, LLLP; CBS Broadcasting, Incorporated; the Hearst Corporation; National Broadcasting Company, Incorporated; the New York Times Company; the Reporters Committee For Freedom of the Press; the Star Tribune Company; Tribune Company; the Washington Post, Intervenors.
• Court: U.S. Court of Appeals — Fourth Circuit

336 F.3d 279

UNITED STATES of America, Plaintiff-Appellant, v. Zacarias MOUSSAOUI, Defendant-Appellee, ABC, Incorporated; Associated Press; Cable News Network, LP, LLLP; CBS Broadcasting, Incorporated; the Hearst Corporation; National Broadcasting Company, Incorporated; the New York Times Company; the Reporters Committee For Freedom of the Press; the Star Tribune Company; Tribune Company; the Washington Post, Intervenors.

No. 03-4162.

United States Court of Appeals, Fourth Circuit.

Filed: July 14, 2003.

ORDER

Appellant filed a petition for rehearing and rehearing en banc.

Chief Judge Wilkins and Judges Williams and Gregory voted to deny a panel rehearing.

A member of the Court requested a poll on the petition for rehearing en banc. A majority of the judges in active service voted to deny rehearing en banc. Judges Wilkinson, Widener, Niemeyer, Luttig, and Shedd voted to grant rehearing en banc. Chief Judge Wilkins and Judges Williams, Michael, Motz, Traxler, King, and Gregory voted to deny rehearing en banc.

The Court denies the petition for rehearing and rehearing en banc.

Chief Judge Wilkins wrote an opinion concurring in the denial of rehearing en banc, in which Judges Williams, Motz, King, and Gregory joined. Judge Widener wrote a dissenting opinion. Judge Wilkinson wrote a dissenting opinion, in which Judge Niemeyer joined. Judge Luttig wrote a dissenting opinion.

Entered at the direction of Chief Judge Wilkins for the Court.

WILKINS, Chief Judge, concurring in the denial of rehearing en banc:

My colleagues have written at length regarding their views on the issue of jurisdiction under the Classified Information Procedures Act (CIPA), 18 U.S.C.A.App. 3 (West 2000 & Supp.2003). For the reasons set forth in the panel opinion and emphasized below, their views are incorrect. Ultimately, I believe my colleagues have allowed the importance of the issues involved in the underlying merits of this appeal to cloud their judgment on the purely legal question of jurisdiction. While the underlying merits present issues of great importance, what is now before us is an ordinary question concerning appellate jurisdiction over a discovery order. Even the gravest concerns of national security cannot, consistent with the limitations imposed on us by the Constitution, afford jurisdiction where none otherwise exists.

I.

My colleagues, and the Government in its petition for rehearing, incorrectly suggest that the panel opinion concludes that CIPA does not apply to disclosures of classified information to the defendant. The panel reached no such conclusion, however. Indeed, there is no question that CIPA § 7 authorizes the government to take an interlocutory appeal from an order of the district court that authorizes the disclosure of classified information to the defendant. See United States v. Clegg, 740 F.2d 16, 18 (9th Cir.1984) ("It is clear that CIPA is as concerned with controlling disclosures to the defendant as it is with controlling disclosures to the public.").¹ Further, there is no question that most or all of what the enemy combatant witness says during a deposition will be deemed classified by the government and that such information will be "disclosed" to Moussaoui during the course of the deposition. These facts, however, are not alone sufficient to create jurisdiction under CIPA § 7.

CIPA § 7 creates an exception to the general prohibition on interlocutory appeals and therefore must be narrowly construed. See United States v. Quintana-Aguayo, 235 F.3d 682, 686 (1st Cir.2000) (per curiam); accord Allen v. Okam Holdings, Inc., 116 F.3d 153, 154 (5th Cir.1997) (per curiam); Shimer v. Fugazy (In re Fugazy Express, Inc.), 982 F.2d 769, 777 (2d Cir.1992); South Bend Consumers Club, Inc. v. United Consumers Club, Inc., 742 F.2d 392, 393 (7th Cir.1984); Blake v. Zant, 737 F.2d 925, 928 (11th Cir.1984); Florida v. United States, 285 F.2d 596, 600 (8th Cir.1960). Even assuming that the construction of § 7 advanced by my colleagues — i.e., reading the pertinent provision broadly so as to authorize an interlocutory appeal from any order authorizing the disclosure of classified information — is a reasonable one, it is no less reasonable to construe § 7 more narrowly as authorizing interlocutory appeal only of orders entered pursuant to the provisions of CIPA, of which § 7 is part. We must therefore determine whether the district court issued such an order, i.e., whether the order of the court was governed by one of the provisions of CIPA. The answer to that question clearly is "no."

Two provisions of CIPA are potentially applicable here. The first, § 4, allows the Government to redact certain information from "documents to be made available to the defendant through discovery." 18 U.S.C.A.App. 3 § 4. Even if the word "document" refers broadly to any written or recorded material that may be subject to redaction before being provided to the defendant, § 4 does not apply because live deposition testimony, by its nature, cannot be redacted in advance of being disclosed to the defendant.

The other potentially applicable provision is § 6, which is the provision the district court applied by analogy in making its ruling. By its terms, § 6 sets forth procedures governing the use of classified information at trial or in pretrial proceedings. See id. § 6(a). Unlike § 4, § 6 does not concern pretrial discovery of classified information. As explained in more detail in the panel opinion, no issue regarding the admission of the deposition testimony at trial is yet presented, because it is not known what the witness might say during the deposition, if he agrees to speak at all.²

II.

The panel also determined that this court lacked jurisdiction under the collateral order doctrine. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). This conclusion is disputed by one of my colleagues, who argues that two other circuits have held that a party need not defy a discovery order and be sanctioned in order to bring an interlocutory appeal. The law of this circuit imposes such a requirement, however, and we are bound to follow it. See MDK, Inc. v. Mike's Train House, Inc., 27 F.3d 116, 121-22 (4th Cir.1994). Additionally, the authorities my colleague cites are distinguishable. In United States v. Philip Morris Inc., 314 F.3d 612, 619-20 (D.C.Cir.2003), the District of Columbia Circuit declined to impose the disobedience-and-sanction requirement on a criminal defendant because it was not clear that a contempt order would be appealable in that circuit. And, the Third Circuit in Kelly v. Ford Motor Co. (In re Ford Motor Co.), 110 F.3d 954 (3d Cir.1997), did not even mention — much less consider and reject — the disobedience-and-sanction requirement.

III.

Finally, I must address my colleague's claim that the panel decision impairs national security. According to my colleague, "any decision in a litigation of this sensitivity inescapably" has a "profound effect ... upon the delicate psychological balance that can determine victory or defeat as much as can combat itself." Post, at 35. Thus, my colleague implies, we must exercise jurisdiction here so that we do not tip the "psychological balance" in favor of the nation's enemies.

Indeed, according to my colleague, the order of the district court and our determination that the order is presently unreviewable have already affected the manner in which the executive branch is exercising its national security function. My colleague's allegations find no support whatsoever in the record. Such speculation can only serve to needlessly alarm the public and appears, regrettably, to be an attempt to divert attention from the legal principles that control our decision.

My colleague apparently would have us simply rule in favor of the government in all cases like this one. From his limited review of the petition for rehearing and suggestion for rehearing en banc, the accuracy of which he assumes, he believes — because the Government asserts national security interests and because he speculates about national security interests the Government does not assert — that it is our duty to exercise jurisdiction without waiting to determine whether any sanction that might be imposed would be acceptable to the Government. Siding with the Government in all cases where national security concerns are asserted would entail surrender of the independence of the judicial branch and abandonment of our sworn commitment to uphold the rule of law.

There is a better way, which is indeed the only correct way. We can, as we have done here, apply settled principles governing the appealability of discovery orders in a consistent manner. This will allow the executive branch to anticipate the likely resolution of legal issues, which will in turn ensure that the executive branch retains the burden and the authority to decide how best to protect national security. Because the panel has followed this path, a majority of the members of this court has correctly decided to deny rehearing en banc.

Judges Williams, Motz, King, and Gregory concur in this opinion.

WIDENER, Circuit Judge, dissenting:

I respectfully dissent from the denial of the motion to recall the mandate in this case and to grant rehearing by the en banc court. I agree largely with the dissenting opinions of Judge Wilkinson and Judge Luttig, but I would add a word.

Both the defendant, Moussaoui, and the witness are acknowledged members of al Qaeda, the worldwide network responsible for the catastrophe of September 11, 2001 in New York. Indeed, the acknowledged membership of both in that organization is the only rational reason the district court is bound to have considered as it required the testimony of the foreign witness for Moussaoui: the witness knows enough about the al Qaeda organization to be able to testify with perhaps facial credibility that Moussaoui had nothing to do with the September 11 events in...