Skip to content

Unusual secrecy precautions surround Moussaoui appeal

Post categories

  1. Court Access

    News Media Update         FOURTH CIRCUIT         Secret Courts    

Unusual secrecy precautions surround Moussaoui appeal

  • Seeking to prevent the release of classified information, a federal appeals court yesterday held open and closed hearings for the alleged Sept. 11 conspirator.

Dec. 4, 2003 — In an unusual format designed to protect classified information, a federal appeals court panel in Richmond, Va., (4th Cir.) yesterday conducted separate open and closed hearings in the case of Zacarias Moussaoui, the only person charged in an American court with having a role in the Sept. 11, 2001, attacks.

The open session was held in the morning, and was attended by dozens of government officials, journalists and law clerks. In the afternoon, the courtroom was closed for argument of issues in which classified information was discussed.

The principal issue before the three-judge panel was whether to uphold sanctions imposed by U.S. District Judge Leonie M. Brinkema, of Alexandria, Va., for the government’s refusal to grant Moussaoui access to three al Qaida detainees he sought to depose to prove his innocence. The government was appealing Brinkema’s Sept. 13 order that eliminates the death penalty and bars prosecutors from introducing any evidence that Moussaoui had a role in the Sept. 11 attacks.

The hearing commenced at 10 a.m. with the extraordinary announcement, by Chief Judge William W. Wilkins Jr., that an official from the CIA’s Directorate of Operations would be monitoring the argument and would interrupt if necessary to prevent disclosure of classified facts. Wilkins even introduced the CIA official by name and asked her to stand up.

The CIA representative remained silent throughout the hearing, however, as lawyers for both sides carefully steered clear of any detailed factual discussion. The argument stuck to legal theory to such an extent that Moussaoui’s name was mentioned only a few times in more than an hour of debate.

Several times, a lawyer or judge mentioned that a particular topic could be explored in more detail in the closed session. For instance, the government’s attorney, Deputy Solicitor General Paul D. Clement, suggested at one point that the district court “may have not given enough weight” to the possibility that the al Qaida detainees, if asked to testify, would invoke their Fifth Amendment right against self-incrimination. He said the point could be “developed in more detail in the [closed] afternoon session.”

Clement also deferred to the closed session when Wilkins asked which entity in the federal government would be the appropriate recipient of a directive for the detainees’ testimony. A candid answer could have revealed which agency under the executive branch — such as the military, the CIA or the FBI — is holding the detainees.

Moussaoui was represented by public defender Frank Dunham in the open hearing, and by Edward B. McMahon Jr. in the closed session. Clement argued both sessions for the government.

The bifurcated format mirrored that used by the Fourth Circuit in a June 3 hearing in Moussaoui’s case. For that hearing, the court had originally planned to hold an entirely closed session, but split the format in response to a legal challenge by various media organizations, including the Reporters Committee for Freedom of the Press.

Lee Levine, a media and First Amendment attorney whose firm brought that challenge, said Wednesday’s hearing arrangements seemed reasonable. “I think the bifurcated concept is the right one,” he said.

“We’re unfortunately not in a position to know what took place in the closed session,” Levine added. “But the hope is that the court conducted as much of the hearing as possible in public, and reserved as little as possible for the closed session.

“If that’s what took place, I have no quarrel with it.”

The court did not give an indication of when it would rule, but it is widely expected to issue a decision within weeks.

(United States v. Moussaoui) JM

Related stories:

© 2003 The Reporters Committee for Freedom of the Press

Return to: RCFP Home; News Page