"The Fourth Circuit? Don't you mean the Ninth?"
Wrongo, Miranda-breath. Few cases indicate how out of touch the Fourth Circuit is better than its most recent decision in the Moussaoui carnival. Admittedly, some of the details do favor Moussaoui, such as requiring that the government grant at least some access to potential defense witnesses being held overseas. At its core, though, the opinion represents both blind deferral to insupportable government assertions, see id. at 17–19—such as the outcome-determinative bare possibility that Moussaoui's closely supervised questioning of detainees held overseas might "interrupt" interrogation two-and-a-half years after the incident in question—and refusal to defer on factual and discretionary findings to the one individual who is both tasked to and in a position to evaluate the credibility of the parties and testimony presented: Judge Brinkema, who is valiantly attempting to run her courtroom fairly despite the efforts of everyone involved.
To say the least, this is inconsistent with Padilla. The only reference to its sister circuit, in fact, is this:
We lack the record evidence of Secretary Rumsfeld's personal involvement that the Padilla court found persuasive. Nevertheless, the Government argues that the witnesses are of vital import to the war effort and to national security. Under these circumstances, it is reasonable to believe that Secretary Rumsfeld is closely involved in their detention * * * *.
Id. at 12 (ellipses in original; emphasis added). Note that this does not even go to the actual holding in Padilla. Nowhere in this decision can one find acknowledgement that the holding in Padilla would require vastly different reasoning, and perhaps even a different result, than the Fourth Circuit reached. What is most disturbing, though, is that "reasonable to believe" is even being mentioned in a death penalty case, even on the relatively trivial issue of whom to serve with process.
Perhaps we should just be relieved that Judge Williams's partial dissent was not the majority opinion:
[M]y colleagues' approach impermissibly jeopardizes the security of our Nation and its allies by intruding on the Executive's ability to perform its war-making, military, and foreign relations duties. Holding that defendants have a right to compulsory process of any alien held abroad in United States custody and control disrupts the proper balance between the coordinate branches. If access is granted, it is undisputed that the Executive's interest is irreparably lost, with the attendant consequences to the multinational efforts to combat terrorism on a global scale.
Id. at 40 (Williams, J., dissenting in part). Of course it is undisputed! The point of Moussaoui's motions and position is that he can only speculate on the testimony of these witnesses, only speculate on how obtaining that information might (or might not) impinge upon "continuing interrogations," without the opportunity to examine them. This is startlingly poor logic: it assumes its conclusion as a necessary premise. Even Chevron does not go this far!
None of this is to say that I am convinced that Moussaoui himself is an angel, that his defense has been wisely or even properly conducted, or that some persons peripherally connected to the actual interrogations might harbor fears as to "interference" with allegedly ongoing interrogations. To be just, though, we must not only provide a just result: we must provide a just process that presents the real appearance of justice. Judge Brinkema's implicit compromise—no direct testimony by potential defense witnesses means that the level of certainty required to impose the death penalty cannot be attained—received little attention, let alone cogent analysis. Perhaps she should have been more explicit that this "compromise" is the basis for her ruling—for then it clearly would be a discretionary ruling. Instead, she refused to conduct a trial in anticipation of a first-class hanging; and, under the Constitution, that is her job. The key belief is not, or at least should not, be that of a "reasonable person" (or appellate judge) reviewing the paper record; it is, or at least should be, that of the jurist charged with implementing the decision and conducting the matter in the first instance. If Judge Brinkema can "reasonably believe" that the government's negotiating posture and tactics have made impossible a compromise on witness access and statements that adequately protects the defendant's rights, that should be all that matters. Judge Gregory's closing paragraph is persuasive:
Here, the reliability of a death sentence would be significantly impaired by the limitations on the evidence available for Moussaoui's use in proving mitigating factors (if he is found guilty). Although it has been repeated often enough to have the ring of cliche, death is different. It is the ultimate penalty, and once carried out, it is irrevocable. A sentence of death cannot be imposed unless the defendant has been accorded the opportunity to defend himself fully; it cannot be imposed without the utmost certainty, the fundamental belief in the fairness of the result. Because Moussaoui will not have access to the witnesses who could answer the question of his involvement, he should not face the ultimate penalty of death. Accordingly, I would uphold the district court's sanction to the extent that it struck the Government's death notice. On this basis, I must dissent.
Id. at 63 (Gregory, J., dissenting in part; italics in original). Note that this goes only to the particular penalty that may be imposed, not to the government's ability to prosecute.