Fourth Circuit En Banc Moussaoui Opinion

Here's the Decision, and pay attention to the dissents by Wilkinson and Luttig, two top contenders for a Supreme Court nomination (assuming Bush doesn't pull any of his usual moderate garbage and nominate Alberto "Spanish for David Souter" Gonzales). I apologize for the line breaks, but it was the only way to cut and paste. When a better formatted version goes up, I'll post it here. The numbers you see are page breaks.

FILED: July 14, 2003
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4162
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
ZACARIAS MOUSSAOUI,
Defendant - Appellee,

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Intervenors.
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.
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 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
1 Although my colleagues maintain otherwise, Clegg is not
contrary to the panel’s decision. At issue in Clegg were proposed
redactions of documentary 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.
2
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
3
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
2 One of my colleagues acknowledges that the district court
has not yet ruled on the admissibility at trial of the witness’
testimony. See post, at 14. He would nevertheless conclude that
the order of the district court was entered pursuant to § 6
because, in deciding to grant access, the district 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
appealable under § 7. See Florida, 285 F.2d at 600 (“Changes in
appeal jurisdiction 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.
4
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 (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
5
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
6
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.
7
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 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 classified information. Accordingly, Section
7 of the Classified Information Procedure Act provides that the
8
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.
9
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 Executive’s ability to manage classified information in
accordance with the clear mandate of the Congress. The dismissal
has erected serious hurdles 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 September 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 district 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.
1 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).
10
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 government to take an interlocutory appeal from “a
decision or order of a 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 circumstances of a courtordered
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.”1 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
11
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
straightforward 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 classified
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.
This argument both ignores the words of the statute and draws
a tenuous distinction between “grant[ing] access” to the source of
classified information and “disclos[ing]” classified information.
Moussaoui, 2003 WL 21467775, at *2. Nowhere does the statute
12
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 section 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.
13
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 apparently 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 to interview the witness precisely to elicit the
most sensitive information, 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
material and relevant to the defense, and that the defendant’s
interest in a fair trial outweighs national security concerns.
14
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 defendant’s position -- an alleged coconspirator
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 Hobson’s choice of
either revealing classified information or facing sanctions, which
could include dismissal of the indictment. This precise dilemma --
15
“disclose or dismiss” -- was just what Congress sought to eradicate
by enacting CIPA.
But these errors do not merely impact the government’s
prosecution of this defendant, serious though that may be. The
effect of this decision will resonate further, jeopardizing
prosecution of other international terrorism or espionage cases.
The panel opinion virtually requires government defiance of
judicial directives: Executive officials 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 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 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
refusing 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
16
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 mandate. By dismissing this appeal, the panel
has inappropriately recalibrated 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 operative 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 justice in the world. I would
17
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.
18
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 significant case heard by the full court and I would hold that
an immediate 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 necessary 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 fragility of the intelligence gathering process and the
susceptibility of that process to influences that might be thought
remote and inconsequential 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 history, as we wage
war against terrorism and its sponsors around the globe.
19
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 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.
20
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 decision. 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 witness is ‘a decision or order . . .
authorizing the disclosure of classified information,’
from which it may take an immediate appeal. We disagree.
CIPA § 6, to which the Government 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. 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 combatant witness’
testimony for potential use at trial, is sufficient to
establish the applicability of CIPA. At its core, 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. The district
court was thus correct to conclude that CIPA applies here
only by analogy. Because CIPA is not directly
applicable, § 7 does not authorize 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
21
the district court order did not “authorize the disclosure of
classified information.” 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 district 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 “authorize 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
22
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 unauthorized 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 disclosure 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 government. See Slip op. 8. The panel does not explain its
reference to a precondition 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 holding cannot be
squared with CIPA’s plain language.
23
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 limitation existed, it would be
satisfied here, because the district court’s order is a
“determination[] concerning the use . . . of classified information
. . . [at] . . . [a] pretrial proceeding” within the meaning of
section 6.). Nor does any other provision of CIPA even arguably
impose such a limitation. And had Congress wished to circumscribe
section 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 classified 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).
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 government to the defendant, and, instead, protects only
24
against the disclosure 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 Government 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
25
at 4 (stating that the panel opinion “held that the particular
disclosure of classified information authorized 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
assumption 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 possession. 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 foreseeable (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 example, sections 2, 4, and
6 of the Act are all concerned with the production of classified
information by the government to the defendant. This additional
purpose of the statute has nowhere been more forcefully 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
26
is as concerned with controlling disclosures to the defendant 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
immediate 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
27
Ninth Circuit held unequivocally in United States v. Clegg, in an
opinion joined by then-Judge 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 government 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 classified
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 considered the question.
28
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
appealable 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 Government, 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
technically rather than practically, by insisting that the district
court’s 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
29
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 conclusively 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 information
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
government openly defies it and incurs sanctions. Slip op. 9. But
30
this cannot be so. An order imposing sanctions would resolve an
entirely separate question from the one resolved by the order of
deposition. The question 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 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.” Likewise, 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
31
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 satisfies 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 unreviewable on appeal from
final judgment. For, were the government to comply with the
district court’s order by producing an enemy combatant 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 sanction, 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 discovery 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
32
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 discovery order. As the Supreme Court instructed
in United States v. Nixon, 418 U.S. 683, 691 (1974) -- an opinion
which the panel nonchalantly 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
exceptional cases envisioned by the Court in Nixon as warranting
interlocutory 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 heavily in this case than it did in
33
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 sanctioned 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 particular enemy combatant witness whose production and
deposition have been ordered by the district court. The timetables
carefully laid 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
34
Country, the government has also been required to artificially
structure its questioning of this enemy combatant 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
provided 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 security 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
35
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 profound effect that any decision in a litigation of
this sensitivity inescapably 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 significance to the war against terrorism can, at
the very moment when psychological 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 protection 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 represent for the
men and women who have been charged to track down, capture, and
bring to justice those who have brought fear to the international
stage. Such an order would resonate throughout the world, and, its
36
belief to the contrary notwithstanding, this court simply could not
calibrate its actions finely enough or react swiftly enough to
prevent 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 government compellingly explains,
“an ongoing military operation by demanding the disruption of
efforts to obtain intelligence and providing 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 mandate 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
37
district court’s order of deposition. To proceed differently, as
the court does today, is to play Russian roulette with the security
of the Nation.
For these reasons, I dissent.

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