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 *283hurdles 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 he.
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 court-ordered 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 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, 333 F.3d 509, 513-14 (4th Cir.2003). Accordingly, the panel reads § 7 not to allow an appeal from the district court’s order.
*284This 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, 333 F.3d at 513-14. Nowhere does the statute 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.
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, 333 F.3d at 513-14. 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. 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 *285serious 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, 333 F.3d at 513-14. For someone in the defendant’s position — an alleged co-conspirator 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 Hob-son’s choice of either revealing classified information or facing sanctions, which could include dismissal of the indictment. This precise dilemma — “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, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (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 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 *286world. I would 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.. 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).