United States of America v. Zacarias Moussaoui

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
ZACARIAS MOUSSAOUI,
Defendant-Appellee.
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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 rehear-
ing en banc. A majority of the judges in active service voted to deny
rehearing en banc. Judges Wilkinson, Widener, Niemeyer, Luttig, and

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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 Greg-
ory joined. Judge Widener wrote a dissenting opinion. Judge Wilkin-
son 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.
FOR THE COURT
/s/ Patricia S. Connor
Clerk
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 rea-
sons 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 juris-
diction. While the underlying merits present issues of great impor-
tance, what is now before us is an ordinary question concerning
appellate jurisdiction over a discovery order. Even the gravest con-
cerns 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,
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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 interloc-
utory appeal from an order of the district court that authorizes the dis-
closure 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 inter-
locutory 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 nar-
rowly as authorizing interlocutory appeal only of orders entered pur-
suant 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 provi-
sions of CIPA. The answer to that question clearly is "no."
1Although my colleagues maintain otherwise, Clegg is not contrary to
the panel’s decision. At issue in Clegg were proposed redactions of docu-
mentary material and a resulting district court order under CIPA § 4. As
explained infra, a live deposition cannot be redacted prior to disclosure
to the defendant and hence is not subject to an order under § 4.
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Two provisions of CIPA are potentially applicable here. The first,
§ 4, allows the Government to redact certain information from "docu-
ments 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 pro-
vision 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 deposi-
tion, 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 (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
2One of my colleagues acknowledges that the district court has not yet
ruled on the admissibility at trial of the witness’ testimony. See post, at
10. He would nevertheless conclude that the order of the district court
was entered pursuant to § 6 because, in deciding to grant access, the dis-
trict court considered questions similar to those it will confront when and
if Moussaoui seeks to enter portions of the deposition into evidence at
trial. I simply cannot agree that similarity of the questions involved is
sufficient to transform an order not governed by CIPA into one appeal-
able under § 7. See Florida, 285 F.2d at 600 ("Changes in appeal juris-
diction should be made by appropriate legislation, not by judicial
modification."). Moreover, unlike my colleague, I am unwilling to
assume the substance of a ruling the district court has not yet made,
based on the content of testimony Moussaoui has not yet sought to enter
into evidence, in the context of a trial that has not yet taken place.
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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 deci-
sion impairs national security. According to my colleague, "any deci-
sion 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 22-23. Thus,
my colleague implies, we must exercise jurisdiction here so that we
do not tip the "psychological balance" in favor of the nation’s ene-
mies.
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 exercis-
ing 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 accu-
racy 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 Gov-
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ernment. Siding with the Government in all cases where national
security concerns are asserted would entail surrender of the indepen-
dence of the judicial branch and abandonment of our sworn commit-
ment 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 secur-
ity. Because the panel has followed this path, a majority of the mem-
bers 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 wit-
ness knows enough about the al Qaeda organization to be able to tes-
tify with perhaps facial credibility that Moussaoui had nothing to do
with the September 11 events in New York. Therefore, the testimony
of this witness would tend to show that Moussaoui is not guilty of the
offenses charged. That is to say, although Moussaoui is admittedly a
member of the al Qaeda conspiracy, he had nothing to do with the
September 11 events in New York. Assuming, as we must, that the
facts I have just related are true, in my opinion it is idle to speculate
that the testimony of the foreign witness to be given in his deposition
ordered by the district court would not reveal an enormity of classi-
fied information. Accordingly, Section 7 of the Classified Information
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Procedure Act provides that the orders of the district court in question
be subject to appeal. I would hear that appeal forthwith.
Anything I have said herein must not be taken as my opinion that
the orders of the district court requiring the deposition of the foreign
witness, and that the government state its compliance or non-
compliance, by today, are free from error.
WILKINSON, Circuit Judge, dissenting from the denial of the motion
for reconsideration:
I appreciate the good efforts made by the members of the panel to
resolve this case. Because I believe, however, that the appeal from the
district court’s order must be entertained, not dismissed, I respectfully
dissent. In my view, the dismissal of this appeal impairs the Execu-
tive’s ability to manage classified information in accordance with the
clear mandate of the Congress. The dismissal has erected serious hur-
dles to the review of the most sensitive national security questions —
precisely the result that CIPA was enacted to prevent.
The defendant is an alleged terrorist and co-conspirator in the Sep-
tember 11th atrocity. He seeks to force the government to produce an
enemy combatant detained overseas — a fellow member of the al
Qaeda network — for a deposition that would aid his defense. This
witness possesses sensitive information relating to the planning and
commission of the September 11th attacks. Undeniably, the defendant
wishes to interview the witness to uncover this information. The dis-
trict court balanced the relevant concerns for national security and
individual rights under the framework provided by the Classified
Information Procedures Act (CIPA), 18 U.S.C. app. 3 §§ 1-16 (2000),
and ordered the government to produce the witness. Because that
order unquestionably falls within the purview of § 7 of CIPA, I
believe an appeal must lie.
I.
As a matter of simple statutory interpretation, it is clear that an
appeal is available in this case. Section 7 of CIPA enables the govern-
ment to take an interlocutory appeal from "a decision or order of a
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district court in a criminal case authorizing the disclosure of classified
information." The Executive branch has determined under § 1(a) of
CIPA that anything the enemy combatant witness says in the circum-
stances of a court-ordered deposition is "classified information." See
18 U.S.C. app. 3 § 1(a). As the district court’s order would force the
disclosure of that information, it clearly "authoriz[es] the disclosure
of classified information."* 18 U.S.C. app. 3 § 7.
It would, in fact, be difficult to find a clearer case of an appealable
order under CIPA. An alleged co-conspirator in the September 11th
attacks is attempting to elicit testimony from a fellow member of the
al Qaeda terrorist network. The purpose of the interview is to discover
sensitive information about the September 11th attacks. Much of the
information at stake is exactly what the government has discovered
through repeated interrogations of the detained enemy combatant.
This is not even a close case in this regard: allowing the defendant to
interview the source of such sensitive information will most definitely
lead to the disclosure of "classified information." The statute speaks
in plain terms, requiring appellate review of a district court order to
disclose classified information, and that is just what is involved here.
II.
My friends on the panel, however, do not agree with this straight-
forward interpretation of § 7. They assert that CIPA does not directly
apply to this case and, consequently, that § 7 does not provide the
right of interlocutory appeal. Specifically, they claim that § 7 does not
provide a right of appeal independent of CIPA’s other provisions;
instead, they interpret § 7 to allow the government to appeal only
from orders that are entered pursuant to other sections of CIPA, such
as § 4 or § 6. Here, the panel concluded, the district court did not rely
on either of these sections, since it did not order the disclosure of clas-
sified information but merely "granted access" to the witness. United
States v. Moussaoui, No. 03-4162, 2003 WL 21467775, at *2 (4th
Cir. June 26, 2003). Accordingly, the panel reads § 7 not to allow an
appeal from the district court’s order.
*The fact that the disclosure may initially be to the defendant rather
than to the public is irrelevant for purposes of § 7. See United States v.
Clegg, 740 F.2d 16, 18 (9th Cir. 1984).
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This argument both ignores the words of the statute and draws a
tenuous distinction between "grant[ing] access" to the source of clas-
sified information and "disclos[ing]" classified information. Mous-
saoui, 2003 WL 21467775, at *2. Nowhere does the statute indicate
that only those orders entered pursuant to § 6 or other sections of
CIPA are subject to interlocutory appeal under § 7. A plain reading
of § 7 clearly establishes that its application hinges entirely on
whether the district court issues an order "authorizing the disclosure
of classified information, imposing sanctions for nondisclosure of
classified information, or refusing a protective order sought by the
United States to prevent the disclosure of classified information." 18
U.S.C. app. 3 § 7. Congress did not make the formal basis for that
order any part of the § 7 inquiry.
Indeed, the lack of any reference in § 7 to other parts of CIPA, and
specifically to § 4 or § 6, should conclusively establish this point.
Congress has regularly included such internal references in statutes
which grant a limited right of appeal. See, e.g., 12 U.S.C.
§ 3105(f)(1)(B) ("an order under subsection (e) of this section or sec-
tion 3107(b) of this title" may be appealed to the courts of appeals);
29 U.S.C. § 210(a) ("an order of the Secretary issued under section
208 of this title" may be appealed to the courts of appeals); 33 U.S.C.
§ 520 ("[a]ny order made or issued under section 516 of this title"
may be appealed to the courts of appeals). There is no such limiting
reference in the text of § 7. Yet the panel itself has now supplied the
limiting reference, unnecessarily circumscribing the reach of CIPA.
Even under the panel’s erroneous interpretation, however, it must
still explain why the district court’s order here is not a CIPA order,
in spite of the fact that the court expressly used CIPA’s balancing
framework. The panel attempts to do so (as the district court appar-
ently did) by characterizing the order as one that merely "grant[s]
access to the enemy combatant witness," not one that "authoriz[es] the
disclosure of classified information." Moussaoui, 2003 WL
21467775, at *2. Thus, the panel suggests that the district court
employed CIPA’s balancing framework merely by analogy.
This distinction between "access" and "disclosure" lacks even a
hint of foundation in the text of the statute. The district court order
permits one alleged terrorist to question another. The defendant seeks
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to interview the witness precisely to elicit the most sensitive informa-
tion, which the witness clearly possesses. Given the witness’s role as
a source of classified information, it is difficult to understand how
"grant[ing] access to the enemy combatant witness" is not tantamount
to the "disclosure of classified information." Id. And any attempt to
distinguish between the right to depose the witness and the ability to
admit that testimony at trial does not help the panel here. The district
court has already ruled that this witness’s testimony would be mate-
rial and relevant to the defense, and that the defendant’s interest in a
fair trial outweighs national security concerns. Although this may not
constitute a final ruling on the admissibility of what the deposition
will uncover, this ruling made the exact determination that the district
court will have to make for the admissibility of evidence at trial.
Thus, the district court’s order should have been made pursuant to
CIPA, and even under the panel’s interpretation, § 7 should provide
the basis for appeal.
III.
The panel further disregards the manifest purpose of CIPA, which
carries special significance in this case because of the serious national
security concerns at stake. Congress enacted CIPA to combat the
problem of "graymail," which refers to efforts by defendants to derail
prosecutions by seeking the disclosure of classified information. See
Moussaoui, 2003 WL 21467775, at *2. For someone in the defen-
dant’s position — an alleged co-conspirator in the most deadly
domestic attack in recent American history — the ability to call upon
other deeply involved al Qaeda members is an effective weapon to
force the government into an untenable prosecutorial position. The net
result of the panel’s decision is that the government now faces a Hob-
son’s choice of either revealing classified information or facing sanc-
tions, which could include dismissal of the indictment. This precise
dilemma — "disclose or dismiss" — was just what Congress sought
to eradicate by enacting CIPA.
But these errors do not merely impact the government’s prosecu-
tion of this defendant, serious though that may be. The effect of this
decision will resonate further, jeopardizing prosecution of other inter-
national terrorism or espionage cases. The panel opinion virtually
requires government defiance of judicial directives: Executive offi-
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cials now will be forced to disregard court orders in order to set up
appellate review. This creates a most unhealthy relationship between
the Executive branch and the courts, and it is exactly what Congress
sought to avoid by providing for interlocutory appeals in § 7. Cf.
United States v. Nixon, 418 U.S. 683, 691-92 (1974) ("To require a
President of the United States to place himself in the posture of dis-
obeying an order of a court merely to trigger the procedural mecha-
nism for review of the ruling would be unseemly, and would present
an unnecessary occasion for constitutional confrontation between two
branches of the Government.").
The whole point of § 7, in fact, is to permit the government to
make an informed decision after appellate review about whether to
divulge confidential information or instead to risk sanctions by refus-
ing disclosure. The panel’s decision now pushes the government into
making this draconian choice earlier in the litigation, before it can
receive the benefit of Congress’s protections in CIPA. And it also
means that a single judge must resolve the confidentiality of sensitive
information relating to vital matters of national security — here, the
September 11th attacks — even though Congress clearly desired
broader input through appellate review. Congress weighed national
security concerns against the admitted inefficiencies of interlocutory
appeals, and it struck the balance on the side of national security. We
must honor that judgment, not because of a fidelity to the abstract
notion of "national security" but because it is Congress’ express man-
date. By dismissing this appeal, the panel has inappropriately recali-
brated the legislative balance and deprived the United States of a
critical procedural device.
IV.
We must not, in resolving this jurisdictional question, turn a blind
eye to reality. The courts have placed one suspected al Qaeda opera-
tive in touch with another, and then denied to the United States the
right to promptly appeal that decision. And all this is done in the
name of a statute designed to provide some measure of protection to
classified material. An appellate court might, to be sure, reach the
merits of this appeal somewhere down the road, but the delays and
disobedience now necessary to achieve appellate review will not
reflect well on what remains fundamentally the finest system of jus-
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tice in the world. I would grant the motion for reconsideration, grant
en banc review, and consider the defendant’s compulsory process
claim forthwith.
Judge Niemeyer joins me in this opinion.
LUTTIG, Circuit Judge, dissenting:
I would grant the request of the United States to recall the court’s
mandate, and I dissent from the court’s denial of that request.
I would also grant the request of the United States to have this sig-
nificant case heard by the full court and I would hold that an immedi-
ate appeal lies from the district court’s order of deposition. I believe
that such is required under both the Classified Information Procedures
Act and the collateral order doctrine. I also believe that such is neces-
sary in the interests of national security, as has been represented to us
on behalf of the President of the United States.
In my judgment, first the district court, then the panel, and now,
regrettably, this court en banc, have all failed to appreciate the fragil-
ity of the intelligence gathering process and the susceptibility of that
process to influences that might be thought remote and inconsequen-
tial in other contexts. Because of this failure, I believe my colleagues
have gravely underestimated the effect that their respective orders and
decisions have already had, and now will continue to have, on the
Nation’s intelligence gathering during this critical period of our his-
tory, as we wage war against terrorism and its sponsors around the
globe.
I.
The issue that has been brought before the court has profound
implications for the Nation’s security. That this is so, however, does
not mean that the government is relieved of its obligations under the
Constitution and laws of the United States. Quite the opposite. The
government’s efforts to ensure security to its citizens, like all other
governmental activities, are subject to law (if they are not especially
subject to law in this context). However, in this instance, neither the
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Constitution nor statute requires the risk to our Nation’s security that
the court, by its decisions, confidently but no less improperly accepts
on the public’s behalf today.
The panel opinion, whose mandate it is asked that we recall and of
which en banc reconsideration is sought, is ambiguous. This fact,
given the signal importance of the litigation and the corresponding
imperative for clarity, itself provides sufficient reason for the full
court to rehear this case. But under any of the three arguable readings
of the opinion, the court also plainly erred in its conclusion that the
district court’s order of deposition is not immediately appealable
under the Classified Information Procedures Act, and therefore that
the national security must yield, at least for the time being, to other
interests.
A.
The panel unfortunately does not articulate either its reasoning or
its conclusion sufficiently clearly that the parties, the public, or even
the members of this court can understand its decision. The analytical
ambiguity that inheres in the panel’s analysis of CIPA in particular is
evident in the single passage of analysis offered for the court’s deci-
sion. In relevant part, that brief passage states as follows:
Here, the Government contends that the order of the district
court directing the deposition of the enemy combatant wit-
ness is "a decision or order . . . authorizing the disclosure
of classified information," from which it may take an imme-
diate appeal. We disagree. CIPA § 6, to which the Govern-
ment points, is concerned with the disclosure of classified
information by the defendant to the public at a trial or pre-
trial proceeding, not the pretrial disclosure of classified
information to the defendant or his attorneys. It is true, of
course, that the district court issued the testimonial writ
based in part on its assessment that the enemy combatant
witness’ testimony would likely be helpful to Moussaoui’s
defense. But, neither this conclusion, nor the fact that the
purpose of the deposition is to preserve the enemy comba-
tant witness’ testimony for potential use at trial, is sufficient
to establish the applicability of CIPA. At its core, the order
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of the district court concerned only the question of whether
Moussaoui and standby counsel would be granted access to
the enemy combatant witness (and if so, what form of
access), not whether any particular statement of this witness
would be admitted at trial. The district court was thus cor-
rect to conclude that CIPA applies here only by analogy.
Because CIPA is not directly applicable, § 7 does not autho-
rize an interlocutory appeal.
Slip op. 7-8 (internal citations omitted). This text can be read, and
fairly so, in any of three ways. It can be read to hold that the district
court order did not "authorize the disclosure of classified informa-
tion." Or it can be read to hold that, even though the district court
order did authorize disclosure of classified information, section 7 of
CIPA does not permit an interlocutory appeal from this order because
it was not, by its terms, issued under CIPA or under authority of that
Act, and therefore CIPA’s appellate review provisions do not apply
to this court’s consideration of the instant appeal. Finally, it can be
read to hold that the district court order authorized the disclosure of
classified information, but not the particular type of disclosure with
which CIPA is concerned.
On any of these understandings of the panel’s opinion, the court
erred in its essential conclusion that an immediate appeal of the dis-
trict court’s order does not lie under CIPA.
B.
Under the first reading of the panel’s opinion, the court would have
held that the order from which the government appeals does not "au-
thorize the disclosure of classified information," within the meaning
of section 7(a) of CIPA. Were this the holding of the court, it would
be in error because the district court’s order most certainly does
authorize the disclosure of classified information. As the government
explains, Moussaoui does not have the necessary clearance to receive
classified information from the government. Petition for Panel
Rehearing or Rehearing En Banc at 3. Therefore, absent the district
court’s order, the government officials in possession of the classified
information Moussaoui seeks would themselves have no authority to
produce such classified information to Moussaoui; indeed, the unau-
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thorized disclosure of classified information to an individual, like
Moussaoui, who is not cleared to receive such information, would
likely constitute a felony under Title 18, section 798, of the United
States Code.
Thus, the district court’s order unquestionably "authorizes the dis-
closure of classified information" in the government’s possession to
Moussaoui, an authorization that brings the district court’s order
squarely within the ambit of the plain language of section 7(a).
Under the second possible reading of the panel’s opinion, the court
would have held that section 7 only permits interlocutory appeal when
CIPA is "directly applicable" to the order appealed by the govern-
ment. See Slip op. 8. The panel does not explain its reference to a pre-
condition of direct applicability. Presumably, however, that reference
is to a belief that, in order for section 7 to authorize interlocutory
appeal, either the district court’s order must have been explicitly
entered pursuant to, or at least have been authorized by, a provision
of CIPA other than section 7(a). But even if the panel’s opinion were
read to so hold, the court would yet be in error, because such a hold-
ing cannot be squared with CIPA’s plain language.
Section 7(a) of CIPA provides simply that appellate jurisdiction
will lie over "a decision or order of a district court in a criminal case
authorizing disclosure of classified information." Section 7(a)’s
authorization of immediate appeal is not limited to orders that, by
their terms, are entered pursuant to CIPA or even to orders that are
authorized by CIPA. (As the government notes, even if such a limita-
tion existed, it would be satisfied here, because the district court’s
order is a "determination[ ] concerning the use . . . of classified infor-
mation . . . [at] . . . [a] pretrial proceeding" within the meaning of sec-
tion 6.) Nor does any other provision of CIPA even arguably impose
such a limitation. And had Congress wished to circumscribe sec-
tion 7(a) so as to provide appellate jurisdiction only over such orders,
it could easily have done so. In fact, section 6(c)(1) of CIPA employs
precisely this sort of limitation, providing that the United States may
move to substitute admissions or a redacted summary in lieu of classi-
fied information "[u]pon any determination by the court authorizing
the disclosure of specific classified information under the procedures
established by this section." Id. (emphasis added).
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Finally, under the last of the three possible readings of the panel’s
opinion, the court would have held that section 7(a) of CIPA is
unconcerned with the disclosure of classified information by the gov-
ernment to the defendant, and, instead, protects only against the dis-
closure of such information by the defendant to the "public" (which
does not include the defendant and his attorneys) in a pretrial hearing
or at trial. That this was the holding most likely intended by the panel
is suggested by the first sentence of its CIPA discussion, which
asserts that CIPA was enacted "to combat the problem of ‘graymail,’
an attempt by a defendant to derail a criminal trial by threatening to
disclose classified information." Slip op. 7. And, indeed, that this is
in fact the court’s holding is all but confirmed by the statements and
conclusions that are featured in the panel’s short analysis. Those
statements and conclusions are that "CIPA § 6, to which the Govern-
ment points, is concerned with the disclosure of classified information
by the defendant to the public at a trial or pretrial proceeding, not the
pretrial disclosure of classified information to the defendant or his
attorneys" and that "the order of the district court concerned only the
question of whether Moussaoui and standby counsel would be granted
access to the enemy combatant witness (and if so, what form of
access), not whether any particular statement of this witness would be
admitted at trial." Id.
It is unsurprising, therefore, that the United States understands the
panel’s opinion to hold that an immediate appeal of the district court’s
order does not lie because it authorizes disclosure only to Moussaoui
and his attorneys, and not to the public at large. See Petition for
Rehearing or Rehearing En Banc at 4 (stating that the panel opinion
"held that the particular disclosure of classified information autho-
rized by the order does not trigger Section 7, because it involves only
disclosure to the defendant, not disclosure to the public"). Indeed, this
is what I understand the panel to have held as well.
I agree with the government that the panel held that immediate
appeal does not lie under section 7(a) of CIPA where at issue is only
an authorized disclosure to the defendant. However, on the assump-
tion that this is the court’s holding, it, too, is in error.
To be sure, CIPA is concerned with a defendant’s disclosure to the
public of classified information that is already in the defendant’s pos-
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session. But this is not the only concern of the statute, and to fail to
appreciate that there are also other concerns embodied in the Act is
to misunderstand the Act. CIPA is equally concerned with the fore-
seeable (and foreseen) event that defendants will attempt to delay, if
not altogether derail their prosecutions by attempts to obtain access
to classified information that they do not already possess. For exam-
ple, sections 2, 4, and 6 of the Act are all concerned with the produc-
tion of classified information by the government to the defendant.
This additional purpose of the statute has nowhere been more force-
fully recognized than in the Ninth Circuit’s opinion in United States
v. Clegg, 740 F.2d 16 (9th Cir. 1984), where the court found it "clear
that CIPA is as concerned with controlling disclosures to the defen-
dant as it is with controlling disclosures to the public." Id. at 18.
The conclusion that CIPA extends to the circumstance, such as that
here, where the defendant seeks access to classified information, is
unavoidable based upon the plain language of CIPA. But, in fitting
coincidence, even the Senate Report relied upon by the panel for its
mistakenly narrower interpretation of the Act confirms as much. That
report clearly states that the problems CIPA was meant to address are
not "limited to instances of unscrupulous or questionable conduct by
defendants since wholly proper defense attempts to obtain or disclose
classified information may present the government with the same
‘disclose or dismiss’ dilemma." S. Rep. No. 96-823, at 3 (1980),
reprinted in 1980 U.S. Code Cong. & Admin. News 4294, 4296-97
(emphasis added).
Accordingly, I believe that, under section 7(a) of CIPA, an imme-
diate appeal of the district court’s order of deposition lies to this
court.
C.
That an immediate appeal of the district court’s order does lie
under CIPA, and thus that the panel erred in its contrary conclusion,
is only further supported by the fact that our sister circuits have
rejected the very analysis the panel adopted — in opinions that are
not even cited, much less discussed, by the panel. Refusing to fall into
the error committed by our court, the Ninth Circuit held unequivo-
cally in United States v. Clegg, in an opinion joined by then-Judge
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Kennedy, that section 7(a) of CIPA provides for appellate jurisdiction
not merely over court orders authorizing disclosure by the defendant
to the public, but also over orders authorizing disclosure by the gov-
ernment to the defendant. See Clegg, 740 F.2d at 18; see also United
States v. The LaRouche Campaign, 695 F. Supp. 1282, 1288 (D.
Mass. 1988) (noting that one "manifest objective of CIPA is that clas-
sified information should not be disclosed to anyone needlessly" and
that "when classified information is not yet in the hands of defendants
and their attorneys and they are making demands for disclosure, the
court must consider whether defendant’s rights can be fully protected
by an alternative procedure that does not result in the disclosure of
classified information.") (emphasis added). The District of Columbia
Circuit, in United States v. Yunis, 867 F.2d 617 (D.C. Cir. 1989),
although it was not required to decide the question, even assumed that
it had jurisdiction over such an order under section 7(a) of CIPA.
Thus, in its indefensible reading of CIPA, our panel stands not only
alone, but in direct conflict with our sister circuits that have consid-
ered the question.
II.
While I believe that the district court’s order is immediately
appealable under CIPA, I believe the panel would be mistaken in its
conclusion that the district court’s order is not immediately appeal-
able even were such an appeal not authorized by that Act, because the
district court’s order is independently appealable under 28 U.S.C.
§ 1291, as a collateral order. See United States v. Pappas, 94 F.3d
795, 798 (2d Cir. 1996) (holding that "CIPA does not deny appellate
jurisdiction that otherwise exists. It simply extends to the Govern-
ment, but not to the defendant, the opportunity for an interlocutory
appeal of protective orders in circumstances where an appeal would
not otherwise exist."). Although section 1291 provides that appeal
may be taken only from a "final order," the panel correctly recognizes
that "[t]he Supreme Court has long given the finality requirement in
§ 1291 a practical construction rather than a technical one." Slip op.
8 (citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546
(1949)). Yet the panel proceeds to apply the finality requirement tech-
nically rather than practically, by insisting that the district court’s
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order is a "discovery order like any other" and that it must be "treated
the same for jurisdictional purposes." Slip op. 10.
If properly applied to take into account the exceptional nature of
the order at issue, I have no question but that the district court’s order
is immediately appealable under the collateral order doctrine, as well
as under section 7(a) of CIPA.
The panel’s rejection of appellate jurisdiction under the collateral
order doctrine rests specifically on its holding that the district court
order "fails to satisfy the first prong of the Cohen analysis," slip op.
9, which requires that "an order conclusively determine the disputed
question." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978).
This holding is obviously incorrect. The district court order conclu-
sively resolves the question of the defendant’s right to depose the
enemy combatant witness, as that court’s subsequent actions confirm.
The district court affirmed its original order of deposition on March
10, 2003, with a written opinion. It later denied the government’s
motion to modify the order in a May 15, 2003, ruling, rejecting an
affidavit of the government certifying that the disclosure of the infor-
mation would cause "identifiable damage to the national security."
See Petition for Panel Rehearing and Rehearing En Banc at 3 n.1.
And, on July 7, 2003, the court ordered that the United States appear
today to advise the court whether it intends to comply with the court’s
order of deposition. Clearly, the district court’s order was not, as the
panel erroneously claims, "tentative, informal or incomplete." Cohen,
337 U.S. at 546.
The panel reasoned that the order is "incomplete" until the govern-
ment openly defies it and incurs sanctions. Slip op. 9. But this cannot
be so. An order imposing sanctions would resolve an entirely separate
question from the one resolved by the order of deposition. The ques-
tion of whether Moussaoui has a right to depose the witness is
entirely distinct from the question of what sanction will be imposed
if the government defies the court order recognizing that right.
By effectively holding that a district court discovery order can
never satisfy the first prong of Cohen unless sanctions are imposed
for disobedience of that order, the panel again disregarded contrary
authority from our sister circuits. In In re Ford Motor Co., 110 F.3d
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954, 958 (3d Cir. 1997), the Third Circuit held that a discovery order
requiring the production of disputed documents did satisfy the first
prong of Cohen because it left "no room for further consideration by
the district court of the claim that the documents are protected." Like-
wise, in United States v. Philip Morris, Inc., 314 F.3d 612, 617 (D.C.
Cir. 2003), the District of Columbia Circuit held that a district court
order that a particular memorandum was not protected by the
attorney-client privilege satisfied the first prong of Cohen because it
conclusively and finally determined a distinctly separate issue from
the merits of the underlying dispute. In fact, in holding that the order
in question was appealable under the collateral order doctrine, the
court specifically rejected the contention that a discovery order must
be defied and sanctions must be imposed in order for that order to be
appealable.
Although the panel opinion does not even discuss the second and
third prongs of Cohen, it is evident that the district court’s order satis-
fies both of these requirements. As to the second prong, the appeal
indisputably presents a matter of great importance — implicating as
it does the Nation’s security — which is distinct from the merits of
the underlying criminal case. The district court’s order also satisfies
Cohen’s third prong, requiring that the order be effectively unreview-
able on appeal from final judgment. For, were the government to
comply with the district court’s order by producing an enemy comba-
tant witness to be deposed by Moussaoui and his lawyers, the harm
to the national security would be irreparable. And, if the government
chooses to defy the district court’s order and accept the likely sanc-
tion, the harm inflicted could be significant even if the sanction were
ultimately reversed by this court on subsequent appeal. See discussion
infra.
At bottom, the panel’s insistence that the United States first be
sanctioned before appealing the district court’s order of deposition is
premised on its fundamentally flawed belief that that order is "a dis-
covery order like any other," which "must be treated the same for
jurisdictional purposes." Slip op. 10. The district court’s order simply
is not a discovery order like any other. It is, rather, a unique order,
perhaps even unprecedented in our jurisprudence.
When such an extraordinary order with such far-reaching effects is
appealed, it is plain error to treat it the same as a run-of-the-mill dis-
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covery order. As the Supreme Court instructed in United States v.
Nixon, 418 U.S. 683, 691 (1974) — an opinion which the panel non-
chalantly distinguishes with a citation to Bennett v. City of Boston, 54
F.3d 18 (1st Cir. 1995), a case involving an interlocutory appeal by
a district attorney in a routine criminal prosecution, see slip op. 10 n.8
— "[t]he requirement of submitting to contempt [ ] is not without
exception and in some instances the purposes underlying the finality
rule require a different result."
The instant case comfortably falls within the category of excep-
tional cases envisioned by the Court in Nixon as warranting interlocu-
tory appeal.
Many of the factors present in the "unique setting" of Nixon are
also present in this case. As in Nixon, the requirement that the United
States place itself "in the posture of disobeying an order of a court
merely to trigger the procedural mechanism for review of the ruling
would be unseemly and would present an unnecessary occasion for
constitutional confrontation between two branches of Government."
Id. at 691-92. If anything, this consideration weighs even more heav-
ily in this case than it did in Nixon because the district court’s order
impedes the President’s exercise of power as Commander-in-Chief by
limiting his authority to prevent access by and to enemy combatants.
And, as in Nixon, the requirement that the United States first be sanc-
tioned by the district court before appealing its underlying claim to
this court only "would further delay both review on the merits of [its]
claim . . . and the ultimate termination of the underlying criminal
action for which [its] evidence is sought."
In sum, the required balance under the collateral order doctrine
manifestly ought be struck in favor of immediate appealability in this
case, and I would so hold.
III.
I have no doubt whatever that the several orders and decisions
issued by the district court and the panel have already not merely
caused alteration of, but actually disrupted, the questioning of the par-
ticular enemy combatant witness whose production and deposition
have been ordered by the district court. The timetables carefully laid
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out for, and the techniques designed specifically to be employed in,
the questioning of this witness have inevitably had to be adjusted both
in anticipation of the predicted rulings that would issue from this
court and the district court and in response to the actual rulings that
have come forth from these courts. Just as certainly, in detriment to
the strategic interests of the Country, the government has also been
required to artificially structure its questioning of this enemy comba-
tant witness around the real possibility that any information imparted
to him in order to obtain information in his possession may ultimately
have to be disclosed to the defendant and his counsel during the
course of judicially-ordered deposition, if not to the public at large at
any ensuing trial. And common sense should tell that our orders and
decisions have, as well, exacted untold hidden costs with respect to
other existing and potential informants who have, respectively, either
withheld information that they would otherwise have already pro-
vided or decided not to come forward at all until this litigation is
finally resolved and its implications for their considered disclosures
fully understood.
Of course, none of this is even to mention the obvious fact that, in
their efforts to protect the Nation, the President and his national secur-
ity advisors, if only incrementally so, have had to proceed differently
than they might otherwise have proceeded were this particular matter
not hanging over them like the sword of Damocles, as they have
awaited final decision from us.
The panel, and now the full court, have comforted themselves in
the fact that we will eventually have jurisdiction to review any order
of the district court sanctioning the United States for noncompliance
with its extraordinary order of deposition. This is, there should be no
doubt, to ignore (or to accept without full appreciation of the possible
costs to national security) the distinct possibility that, because of the
courts’ actions, appellate review of any sanction imposed will never
be sought, with attendant consequences for the President’s diplomatic
and military conduct of the war against terrorism left to be borne by
an unsuspecting public.
In any event, in taking comfort in the belief that appellate review
will ultimately be had, the court only fails again to appreciate the pro-
found effect that any decision in a litigation of this sensitivity ines-
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capably has upon the delicate psychological balance that can
determine victory or defeat as much as can combat itself. For even the
temporary imposition of sanction in a case of this delicacy and signif-
icance to the war against terrorism can, at the very moment when psy-
chological advantage could prove determinative of the conflict or its
direction, embolden the enemy in that war and weaken the resolve of
those who are charged with prosecution of that war and with protec-
tion of our homeland. One can only imagine the encouragement that
even a short-lived order dismissing the charges against the appellee
in this case would provide the terrorist network and its allies around
the world, and the demoralizing setback that such would in turn repre-
sent for the men and women who have been charged to track down,
capture, and bring to justice those who have brought fear to the inter-
national stage. Such an order would resonate throughout the world,
and, its belief to the contrary notwithstanding, this court simply could
not calibrate its actions finely enough or react swiftly enough to pre-
vent such a sanction from having unanticipated deleterious effect on
the Nation’s security.
IV.
The panel opinion of which further review has been sought rested
squarely, as the court openly stated, on a conclusion that the "order
of the district court is a discovery order like any other." The district
court’s order, however, is not like any discovery order, and, as the
government suggests, it may in fact be unlike any other discovery
order. The district court’s order of deposition, whether right or wrong
under law, was extra-ordinary in every sense, affecting, as the govern-
ment compellingly explains, "an ongoing military operation by
demanding the disruption of efforts to obtain intelligence and provid-
ing an admitted terrorist with access to an enemy combatant detained
overseas in the midst of war," see Petition for Panel Rehearing or
Rehearing En Banc at 14.
Because I believe that, under law, the United States is entitled to
immediate review of this extraordinary order entered by the district
court, I would grant the motion of the United States to recall the man-
date issued by the panel, grant the petition for rehearing en banc, and
hold that interlocutory appeal lies in this court to hear, on the merits,
the government’s appeal of the district court’s order of deposition. To
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proceed differently, as the court does today, is to play Russian rou-
lette with the security of the Nation.
For these reasons, I dissent.
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