The district court conducted a hearing, after which it issued an oral
ruling granting access to Witness A ("the January 30 order"). The
court subsequently issued a memorandum opinion explaining its ruling
in greater detail. The district court concluded that Witness A
could offer material testimony in Moussaoui’s defense; in particular,
the court determined that Witness A had extensive knowledge of the
September 11 plot and that his testimony would support Moussaoui’s
claim that he was not involved in the attacks. At a minimum, the court
observed, Witness A’s testimony could support an argument that
Moussaoui should not receive the death penalty if convicted.
The district court acknowledged that Witness A is a national security
asset and therefore denied standby counsel’s request for unmonitored
pretrial access and declined to order his production at trial. The
court also determined, however, that the Government’s national security interest must yield to Moussaoui’s right to a fair trial.
Accordingly, the court ordered that Witness A’s testimony be preserved
by means of a Rule 15 deposition. See Fed. R. Crim. P.
15(a)(1) (providing that court may order deposition of witness to preserve
testimony for trial "because of exceptional circumstances and in
the interest of justice"). In an attempt to minimize the effect of its
order on national security, the district court ordered that certain precautions
be taken. Specifically, the court directed that the deposition
would be taken by remote video, with Witness A in an undisclosed
location and Moussaoui, standby counsel, and counsel for the Government
in the presence of the district court,
http://www.ca4.uscourts.gov/moussaoui4792/pdf/034792opn040922.pdf