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A side issue in Moussaoui — or might it be the main event?

The Bush Administration’s advocacy in the Zacarias Moussaoui case in the Supreme Court (docket 04-8385) shows that it is still smarting over the Fourth Circuit’s decision to give the terrorism suspect even a partial victory. But Moussaoui’s lawyers have turned the government’s abiding discontent into another argument for the Justices to review his appeal now, before any trial occurs. (An earlier post, below, provides links to papers filed in the case, but not to the Moussaoui defense team’s reply brief, which is here.)

At this stage, of course, the Court has not agreed to hear Moussaoui’s multi-faceted constitutional challenge to the planned trial on conspiracy charges related to the September 11, 2001, terrorist attacks. Whether the Court will do so probably will be known after the case comes up in the private session of the Justices on March 18. At this point, then, the primary focus of the appeal and the government’s opposition is on the question of hearing the case now, or letting it go to trial without Supreme Court intervention.

Trying to keep the Court on the sidelines, at least for the time being, the Justice Department has put most of its emphasis on the claim that the appeal is premature; its opposition brief makes a variety of arguments focusing on the pre-trial timing of the appeal, and the claim of a lack of finality on key issues. But that brief also threw in a side issue, an argument on the merits claiming that the Fourth Circuit should have given Moussaoui nothing at all. That is what Moussaoui’s lawyers are trying to turn to their advantage in seeking review now – albeit, at some risk to their overall case.

Here is the background:

As has often been true in war on terrorism cases, the Justice Department tried to persuade the Fourth Circuit that the courts had no business second-guessing Executive decisions about how to wage that war, including decisions about what to do with captured terrorist suspects. So, when Moussaoui sought to gain pre-trial access to three Al Qaeda operatives in U.S. custody, as potential defense witnesses, the Department contended that the trial court was barred – by separation-of-powers principles – from issuing any orders compelling testimony, in any form, from the captives.

The Fourth Circuit rejected that sweeping claim. A trial court, it ruled, does have the authority – and, indeed, the duty – to command testimony in some form from witnesses if it could be helpful to the defense. Finding that the captured Al Qaeda figures would offer testimony favorable to Moussaoui’s claim that he was not involved in the September 11 attacks, the appeals court said Moussaoui must have some access. It limited that access, however, to the use of summaries composed of excerpts from the results of intelligence-gathering interrogations of the three captives, along with answers the captives might give in response to written questions from defense lawyers.

Those limitations on access are at the heart of Moussaoui’s constitutional complaints in his Supreme Court appeal. But, significantly, the government did not appeal to challenge the Fourth Circuit’s ruling that courts could issue compulsory testimonial orders directed at terrorist captives; the government apparently was content to take its chances with Moussaoui’s lawyers’ use of the summaries.

But, when it opposed Moussaoui’s petition, the Justice Department brought up anew its claim that “the witnesses at issue here [are] beyond the compulsory process power of the court.” Moussaoui’s claim to any access, the brief said, should fail because the appeals court “should have recognized that separation-of-powers principles barred the district court from extending court process to these witnesses.”

Now comes Moussauoi’s lawyers, in reply, to tell the Court that “the government’s opposition raises another constitutional issue of almost equal moment” – that is, almost equal to Moussaoui’s need for something more than summaries of what the Al Qaeda operatives said during government interrogations. The government’s contention that the Fourth Circuit had authorized a violation of separation of powers doctrine, the reply said, “actually provides an additional reason for granting review.” If the government is to have its way, seeking to have the appeals court reversed on the basic issue of whether compulsory process of any kind should have been issued, the Court first would have to “take petitioner’s case.”

That is risky, of course, because there is always the chance that the Court would see the power of the trial court to issue process as a fundamental question, not a side issue, and limit its review to that, or at least add that to a grant of review even though the government did not expressly ask it to do so. And, if Moussaoui lost on that, there would be little – if anything – left of his appeal.

(Thanks to Public Defender Frank Dunham’s office and to private attorney David H. Remes of Covington and Burling for providing copies of the Moussaoui reply brief. Remes is counsel to two amici in the case.)