4th Cir. Ct. of Appeals Opinion
Published on April 23, 2004 By Wahkonta Anathema In Current Events
An semi-exegesis of the opinion handed down on Thursday, 22 April 2004 in U.S. 4th Cir. Ct. of Appeals:

In an interesting turn of events, the 4th Circuit Court of Appeals has handed down a opinion concerning the United States Government prosecution of Zacarias Moussaoui, granting him the right to call witnesses in his defense, in stating : "The governments national security interest must yield to Moussaoui's right to a fair trial." the Government appealed and this is what the Court of Appeals has opined:
1.) Arguing first that the case of , U.S V. Theresius Filippi, 918 F.2d 244, ("The United States has no subpoena power over a foreign national in a foreign country.") and U.S. v. Zabaneh, 837 F2d 1239, ("...lack power to subpoens witnesses."), the Court rejected the argument. "The government's argument overlooks the critical fact that the enemy combatant witnesses are in the custody of an Official of the United States Government." The court then goes on to hold that the argument they cannot subpoena the witnesses in foreign land, they COULD file a writ of habeas corpus ad testificandum upon the custodian of the witnesses. "There can be no question that the Distric Court possesses the power to serve process on the witnesses' custodian." They will then order that Donald Rumsfeld, as Sec'y of Defense, be served the writ.

The significance of this is going to be a key in several cases being now argued before the Supreme Court over the right of Detainees at Guantanamo Bay military facility, to be granted 'Due Process' of law as any other Defendant in a United States Court case. In holding they are in custody of United States Government inasmuch as they are in custody of Rumsfeld, the argument will then proceed that the detainees are in custody of "Official of United States Government" inasmuch as they are in custody of the President of the United States. There are some "Executive" claims to resolve on those cases true, but the worm may have turned with regard to all these cases by this holding.

In a twist of fate, it was the governments own use of the prosequendom aspect of the writ -"Great Writ' (habeas corpus) , itself limited in territoriality since 1875 - that made it possible, the Court holding it was not the same as when used by the government in seeking "ad prosequendum" authority to extradite foreigners for criminal prosecution in the United States. The Court held that, "Carbo v. U.S., 364 US 611 (1961) allowed issuance extraterritorially, therefore the door was opened for the 'ad testificandum" writ having equal legitimacy. "It is thus clear that a district court can reach beyond the boundaries of its own district in order to issue a testimonial writ."

In further wording, the Court rejected the 'separation of powers' argument that the Executive could not be compelled to comply with the Judiciary, stating, "Separation of Powers does not mean, however, that each branch is prohibited from any activity that might have an impact on another. see the Federalist 47, at 245(James Madison)(Explaining that separation of powers does not mean that the branches 'ought to have no partial agency in, or no controul[sic] over the acts of each other," but rather means "that where the whole power of one department is exercised by the same hands which possesses the whole power of another department, the fundamental principles of a free constitution, are subverted"(emphasis omitted) "[A] hermetic sealing off of the three branches of government from one another would preclude the establishment of a nation capable of governing itslef effectively." Buckley v. Valeo, 424 US 1, (1976) (per curiam). See also Loving v. U.S., 517 US 748, at 757.

They then go on to hold: "It is settled law that the separation of powers doctrine does not bar every exercise of jurisdiction over the President of the United States." Nixon v. Fitzgerald, 457 US 731, 753-54.

In a nutshell, the government took a hit with this decision. Now they have to produce the witnesses that the Defendant claims tend to prove his innocence, and allow them to be interviewed and their testimony presented to the jury. "Several statements by witness....(omitted)tend to exculpate Moussaoui. For example...(witness summary testimony and name onmitted)THIS STATEMENT TENDS TO UNDERMINE THE THEORY ...THAT MOUSSAOUI WAS TO PILOT A FIFTH PLANE INTO THE WHITE HOUSE. WITNESS ... HAS ALSO....THIS STATEMENT IS SIGNIFICANT IN LIGHT OF OTEHR EVIDENCE ....INDICATING THAT OUSSAOUI HAD NO CONTACT WITH ANY OF THE HIJACKERS....

In fairness, the government then goes on to argue the testimony he seeks will in fact implicate him in a "post 9/11' plot, but the court held that is a question for a jury to decide. Later they hold, "THERE CAN BE NOT QUESTION THAT WITNESS....COULD PROVIDE EVIDENCE ON BEHALF OF MOUSSAOUI...""....ADDITIONALLY, WITNESS ....PROVIDES EVIDENCE OF MOUSSAOUI'S LACK OF RELATIVE IMPORTANCE IN THE CONSPIRACY."

The opinion is extensive and so I provide a link to it for those interested in reading it themselves. It essentially holds that the Defendant gets to call witnesses, or at least interview them for relevancy in presetning his defense, and the government may still seek a death penalty unless Judge of the lower Court does not come up with another alternative sanction. This too was part of the dissent of one Justice, and will be bitterly fought for years to come you can bet. I view it a major setback for the Government and Attorney General John Ashcroft. Should they now lose the only case they are to try to prove the 9/11 conspiracy, it will be egg on their face for history. (Another crack in the 9/11 'cover-story'?)

Hope this fills you in a bit better than the 'controlled-media' articles on this opinion (not that they are false, just inadequate in communicating the principles of the opinion filed), and feel free to comment or e-mail: wahkonta@graffiti.net.
Blog ON.

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