concurring in part and dissenting in part:
While I appreciate my colleagues’ effort to resolve the difficult issues that this case presents, I cannot agree with their separation of powers analysis. My colleagues conclude that Moussaoui has a Sixth Amendment right to compulsory process of these witnesses based solely on the district court’s ability to serve process on the witnesses’ custodian. This approach accords little, if any, weight to the formidable separation of powers concerns that the Government raises, specifically the Executive’s need to accomplish the war-making, national security, and foreign relations duties delegated to it by the Constitution. I believe that the separation of powers analysis impacts whether the district court had the authority to issue its orders granting access to the witnesses. If separation of powers principles prohibit the district court from granting compulsory process, as I believe they do, Moussaoui has no Sixth Amendment right to the witnesses’ testimony.
At the end of the day, the practical difference between the result I reach and that of my colleagues is nil. As discussed below, I believe Moussaoui has a constitutional right to the information provided by the witnesses, and I believe that the substitutions in their current form do not adequately protect that right. I feel compelled to write separately, however, because my colleagues’ approach impermissi-bly 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. Accordingly, I believe the separation of powers question, in other words, the question of the scope of the district court’s authority, must be decided before assuming that the defendant’s right to compulsory process automatically extends to these witnesses.
For the reasons discussed below, I conclude, based on separation of powers principles, that the district court lacked the authority to order the custodian1 to pro*318duce these alien enemy combatants who are being detained * * * * on foreign soil, and thus, I dissent from the affirmance of the district court on this issue.
Although I do not believe that Mous-saoui has a right to compulsory process of these witnesses under the Sixth Amendment, I would conclude that he does have a right grounded in the Fifth Amendment to introduce material, favorable information from these people that is already in the Government’s possession. Thus, the district court’s materiality analysis remains relevant. I concur in Part IV.C.2.a through Part IV.C.2.C of my colleagues’ opinion, which concludes that Moussaoui has made a sufficient showing that the information provided by the witnesses is material and favorable. I then come, as do my colleagues, to the question of substitutions. Although I would require substitutions for the * * * * summaries instead of for hypothetical deposition testimony, this difference does little to change the substitution inquiry, given the circumstances of this case. Accordingly, I concur in Part V.A through Part V.C of Chief Judge Wilkins’s opinion to the extent that the analysis is not inconsistent with providing substitutions for the * * * * summaries.
I also concur in Part I of my colleagues’ opinion, which includes the background information relevant to this appeal, and Part II, which describes our jurisdiction.
I.
Turning to the question of the district court’s authority, we review de novo the legal question of whether the district court had the authority to order the custodian to produce an alien enemy combatant who was captured * * * * outside the territorial jurisdiction of the United States.
I agree with my colleagues that the district court’s process can reach the witnesses’ custodian, whom we assume is a U.S. citizen, whether that person is within the United States or abroad. Cfi ante at 301 (“There can be no question that the district court possesses the power to serve process on the witnesses’ custodian.”). I do not believe, however, that this fact resolves the entire case.2 I believe that sep*319aration of powers principles place the enemy combatant witnesses beyond the reach of the district court. Accordingly, Mous-saoui does not have a Sixth Amendment right to their compulsion. Cf. ante at 302 n. 10 (If “separation of powers principles place the enemy combatant witnessed beyond the reach of the district court ..., then Moussaoui would not have an enforceable Sixth Amendment right to the witnesses’ testimony.”)
My colleagues come to the opposite conclusion by finding that“[t]he witnesses at issue here ... are within the process power of the district court, and Moussaoui therefore has a Sixth Amendment right to their testimony.”3 Ante at 304. Once they conclude that Moussaoui has a Sixth Amendment right to the witnesses’ testimony, they treat the Government’s separation of powers concerns like the assertion of an evidentiary privilege, which must yield to a finding that the witnesses have information material to the defense. See ante at 312 (“[Wjhen an evidentiary privilege — even one that involves national security — is asserted by the Government ..., the ‘balancing’ we must conduct is primarily, if not solely, an examination of whether the district court correctly determined that the information the Government seeks to withhold is material to the defense.”). Were the Government asserting merely an evidentiary privilege, I might agree with this analysis. But see United States v. Nixon, 418 U.S. 683, 706, 713, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (suggesting that a claim of privilege based on the “need to protect military, diplomatic, or sensitive national security secrets” might prevail over the need for production of evidence in a criminal proceeding). The evidentiary privilege cases, however, while undoubtedly useful in analyzing this complicated issue of first impression, have one fundamental difference from this case. In those cases, which predominantly involve classified or confidential documents or information, the district court had the authority to issue an order requiring disclosure. Cf. infra at 325-27. Where, as here, the Government argues that separation of powers principles deprive the district court of the authority to enter a particular order, I believe that the structure of the analysis is different.4 Cf. Nixon v. *320Administrator of General Serv., 433 U.S. 425, 441-55, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977) (analyzing separation of powers claim separately from presidential privilege claim). Although this area of the law is far from settled, I believe that the proper inquiry asks first whether separation of powers principles prohibit the district court from granting access to the witnesses before assuming that Moussaoui has a right to compulsory process of the witnesses based solely on their custodian’s amenability to service of process.5
Turning to the separation of powers question, “in determining whether [an action] disrupts the proper balance between the coordinate branches, the proper inquiry focuses on the extent to which it prevents the Executive Branch from accomplishing its constitutionally assigned functions.” Nixon v. Admin. of General Serv., 433 U.S. at 443, 97 S.Ct. 2777. “Only where the potential for disruption is present must we then determine whether that impact is justified by an overriding need to promote objectives within the constitutional authority of [the Judiciary].” Id. In my view, the district court’s orders prevent the Executive from accomplishing its war-making, military, and foreign relations duties.
“Among powers granted to Congress by the Constitution is power to provide for the common defense, to declaré war, ... [and] to make rules concerning captures on land and water, which this Court has construed as an independent substantive power.... The first of the enumerated powers of the President is that he shall be Commander-in-Chief of the Army and Navy ... [a]nd, of course, grant of war power includes all that is necessary and proper for carrying these powers into execution.” Johnson v. Eisentrager, 339 U.S. 763, 788, 70 S.Ct. 936, 94 L.Ed. 1255 (1950) (internal citation omitted); see also Hamdi v. Rumsfeld (Hamdi II), 296 F.3d 278, 281 (4th Cir.2002). Gathering intelligence related to national security is also entrusted solely to Congress and the Executive. CIA v. Sims, 471 U.S. 159, 167, 105 S.Ct. 1881, 85 L.Ed.2d 173 (“As part of its post war reorganization of the national defense system, Congress chartered the Agency with the responsibility of coordinating intelligence activities relating to national security.”) As my colleagues have noted:
It is not an exaggeration to state that the effective performance of these duties is essential to our continued existence as a sovereign nation. Indeed, ‘no governmental interest is more compelling than the security of the Nation.’ Haig v. Agee, 453 U.S. 280, 307, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981); see Hamdi II, 296 F.3d at 283 (observing, in the post-September 11 context, that ‘government has no more profound responsibility than the protection of Americans ... against additional unprovoked attack’). Thus, ‘[i]n accordance with [the] constitutional text, the Supreme Court has shown great deference to the political branches when called upon to decide cases implicating sensitive matters of foreign policy, national security, or military affairs.’ Hamdi II, 296 F.3d at 281.
Ante at 306.
The Executive’s war-making authority is one of “extraordinary breadth.” Hamdi v. Rumsfeld (Hamdi III), 316 F.3d 450, 466 (4th Cir.2003), petition for cert. granted, — U.S. -, 124 S.Ct. 981, 157 L.Ed.2d 812 (2004). This authority in-*321eludes the power to capture and detain individuals involved in hostilities against the United States.6 See Ex Parte Quirin, 317 U.S. 1, 25, 63 S.Ct. 2, 87 L.Ed. 3 (1942); Hamdi II, 296 F.3d at 281-82. Indeed, the capture, detention, and interrogation of enemy aliens, like the designation of a detainee as an enemy combatant, “bears the closest imaginable connection to the President’s constitutional responsibilities during the actual conduct of hostilities.” Hamdi III, 316 F.3d at 466; Hamdi II, 296 F.3d at 281-82 (holding that the judiciary’s deference to the political branches in “cases implicating sensitive matters of foreign policy, national security, or military affairs” extends to “detention [of enemy combatants] after capture on the field of battle”).
Moreover, the Supreme Court has held that “[ejxecutive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to war-time security.” Eisentrager, 339 U.S. at 774, 70 S.Ct. 936. The Government’s proffer concerning the harm that will result if these witnesses are produced demonstrates the truth of this statement.
I agree with my colleagues that we must accept as true the Government’s averment
that * * * * the enemy combatant witnesses is critical to the ongoing effort to combat terrorism by al Qaeda.... Their value as intelligence sources can hardly be overstated. And, we must defer to the Government’s assertion that interruption * * * * will have devastating effects on the ability to gather information from them. Cf. CIA v. Sims, 471 U.S. 159, 176, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985) (noting that ‘whether an intelligence source will be harmed if his identity is revealed will often require complex political, historical, and psychological judgments’ that courts are poorly equipped to make).
Ante at 306-07; cf. United States v. Fernandez, 913 F.2d 148, 154 (4th Cir.1990) (noting that we do not question “judgments made by the Attorney General concerning the extent to which the information in issue here implicates national security”). * * * *,7 could result in the loss of information that might prevent future terrorist attacks” — attacks that could claim thousands of American lives. Ante at 306.
Additionally, as was the case in Eisen-trager, the district court’s orders are likely to bolster our enemies and undermine the Executive’s war-making efforts. Although some of the concerns with the Great Writ that the Eisentrager Court identified8 are not present with a testimonial writ, many of the concerns are equally present in this context, including: the custodian would have to transport the witness to the location of the deposition; the writ would be equally available during active hostilities as during the times between war and peace (and the writ would be equally available immediately after capture as well as months after capture); moreover, granting a testimonial writ could bring aid and comfort to our enemies; it would diminish the *322prestige of our commanders with enemies9 and wavering neutrals;10 the logistics and security concerns of coordinating production of the detainee to testify will divert the attention of at least some military or intelligence personnel, perhaps even the field commander; and finally, it is highly likely that the result of a court being able to force the custodian * * * * of an alien enemy combatant detained abroad would be a conflict between judicial and military opinion highly comforting to enemies of the United States. In this regard, I note that the Government has articulated more than a generalized interest in unfettered pursuit of the war effort. Cf. United States v. Nixon, 418 U.S. at 711, 94 S.Ct. 3090. (rejecting the claim of presidential privilege where privilege was based only on the “generalized interest in confidentiality”). Rather, the Government has offered a case-specific analysis of the harm that will be done by interruption * * * *.
Finally, as my colleagues note, ante at 306, we must also be mindful of the effect that production of the witnesses would have on the Executive’s ability to conduct foreign relations.
I therefore conclude that requiring the Government to produce for depositions alien enemy combatants detained abroad * * * *, the goal of which is to protect the security of American lives from future terrorist attacks,11 would prevent the Executive from exercising its war and foreign relations powers. I also conclude that the grave risks to national security that would arise from granting access to the witnesses cannot be justified by the need to promote objectives within the constitutional authority of the Judiciary. See Nixon v. Admin. of Gen. Serv., 433 U.S. at 443, 97 S.Ct. 2777.
I agree that the right of a defendant to offer testimony of witnesses in his favor and to compel their attendance “if necessary” is fundamental to our adversarial system. See Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). We have recognized, however, that “the right to compulsory process is not absolute.” Smith v. Cromer, 159 F.3d 875, 882 (4th Cir.1998) (noting that the Sixth Amendment right to compulsory process is subject to balancing under Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957)); cf. Buie v. Sullivan, 923 F.2d 10, 11 (2d Cir.1990) (Sixth Amendment right to present a defense was not violated by arrest of a witness who had exculpatory information, even though arrest caused the witness to invoke the Fifth Amendment).
The “immunity cases” provide a helpful, albeit imperfect, analogy here. In these cases, the majority of courts have held that, in the absence of prosecutorial misconduct, no constitutional violation inures from the court’s inability to immunize a *323witness even if the material, favorable information possessed by the witness could not be obtained in any other way. These cases illustrate that when separation of powers concerns bar the court from acting, the defendant’s right to a fair trial is not infringed.12
In Autry v. Estelle, 706 F.2d 1394 (5th Cir.1983), the Fifth Circuit held that “district courts may not grant immunity to defense witnesses simply because that witness has essential exculpatory information unavailable from other sources.” 706 F.2d at 1401 (quoting United States v. Thevis, 665 F.2d 616, 639 (5th Cir.1982)). The court “followed the Second Circuit’s decision in Turkish in finding the role of dispensing immunity not to be ‘a task congenial to the judicial function.’ ” Id. (quoting United States v. Turkish, 623 F.2d 769, 776 (2d Cir.1980)); see also Turkish, 623 F.2d at 776 (holding that defendants do not have a right to defense witness immunity and that “confronting the prosecutor with a choice between terminating prosecution of the defendant or jeopardizing prosecution of the witness is not a task congenial to the judicial function”). The “refusal to entertain ... claims [for defense witness immunity] in federal prosecution is ... bottomed on separation of power concerns and our opinion that federal judges lack such power in federal prosecutions.” Autry, 706 F.2d at 1402. The Fifth Circuit reaffirmed this conclusion in a capital case, holding that “absent prose-cutorial misconduct, separation of powers concerns and the possibility of abuse preclude federal district courts from granting immunity to a defense witness merely because that witness has essential exculpatory information unavailable from other sources.” Mattheson v. King, 751 F.2d 1432, 1443 (5th Cir.1985). Other circuits have come to similar conclusions. See, e.g., United States v. Mackey, 117 F.3d 24, 27-28 (1st Cir.1997) (holding that ■ only prosecutorial misconduct justifies a court’s refusal to allow the prosecution to proceed unless it grants immunity); id. at 28 (rejecting the argument that “a strong need for exculpatory testimony can override even legitimate, good faith objections by the prosecutor to a grant of immunity”); United States v. Frans, 697 F.2d 188, 191 (7th Cir.1983) (holding that defendant had not made a showing of “bad motives of the government” and that “a defendant must make a substantial evidentiary showing that the government intended to distort the judicial fact-finding process” before the court will review a denial of immunity); United States v. Talley, 164 F.3d 989, 997 (6th Cir.1999) (noting that “compelled judicial usé immunity would raise separation of powers concerns”); see also United States v. Bowling, 239 F.3d 973, 976 (8th Cir.2001) (holding that the district court has no authority to compel use immunity); cf. Talley, 164 F.3d at 998 (noting that compelled immunity may be necessary where the government’s selective use of immunity results in evidence that is “egregiously lopsided,” or where there is prose-cutorial misconduct).
Consistent with this majority approach, “[w]e have held that the district court is without the authority to confer immunity sua sponte.” United States v. Abbas, 74 F.3d 506, 511 (4th Cir.1996). A district *324court can compel the prosecution to grant immunity only when “(1) the defendant makes a decisive showing of prosecutorial misconduct or overreaching and (2) the proffered evidence would be material, exculpatory and unavailable from all other sources.” Id. at 512 (emphasis in original). In other words, a showing that the testimony sought would be material and favorable to the defense is not enough to override the separation of powers concerns inherent in compelling a grant of immunity.
I disagree with my colleagues’ conclusion that these immunity cases stand for the proposition that “legitimate separation of powers concerns [cannot] effectively insulate the Government from being compelled to produce evidence or witnesses.” See ante at 304. I interpret the immunity cases as standing for the proposition that the Executive, acting through the prosecution, forfeits its right to rely on the separation of powers as a bar to compelled judicial immunity when it exceeds the bounds of its authority by overreaching or some other type of prosecutorial misconduct.13 In these circumstances, compelled judicial immunity is akin to a punishment of the Executive for failing to perform properly the duties assigned to it by the Constitution. This conclusion is bolstered by the cases, such as Abbas and Mattheson, that hold unequivocally that a showing that the evidence sought is material, favorable and unavailable from any other source is insufficient to require a grant of immunity. Thus, absent bad faith by the government, legitimate separation of powers concerns can restrict the court’s authority to compel the government to make the testimony of certain witnesses available. I note that Moussaoui has conceded that there has been no prosecutorial misconduct, overreaching, or other abuse in this case.14 (See Appellee’s Br. (03-4792) at 3 (‘We do not intend to question the integrity of any Government official working on this case.”); see also ante at 302 n. 10 (noting that the Government is not attempting to invoke national security concerns as a means of depriving Moussaoui of a fair trial).)
Returning to the issue presented by this case, the district court’s orders required the custodian to interrupt * * '* * aliens detained overseas, the practical effect of which would be to eliminate the ability of the custodian to * * * * any further information that could help save the lives of American citizens or our allies. Given the Supreme Court and this court’s unequivocal statements regarding the primacy of Executive authority over both aliens and intelligence gathering during wartime, and the serious national security risks that would result from granting access, I conclude that separation of powers principles prohibited the district court from issuing its January 30 and August 29 orders *325granting access to the witnesses. Where the court lacks the authority to compel production or testimony of a witness, the defendant is not entitled to any remedy for that lack of authority.15 Cf. United States v. Zabaneh, 837 F.2d 1249, 1259-60 (5th Cir.1988) (“It is well established that convictions are not unconstitutional under the Sixth Amendment even though the United States courts lack power to subpoena witnesses, (other than American citizens) from foreign countries.”); United States v. Greco, 298 F.2d 247, 251 (2d Cir.1962) (holding that there was no constitutional violation even though the court could not compel production of Canadian witnesses living in Canada); United States v. Sensi, 879 F.2d 888, 898 (D.C.Cir.1989) (holding that there was no constitutional violation even though the court could not compel production of Kuwaiti witnesses); Autry, 706 F.2d at 1401-03 (holding that there was-no constitutional violation where the court lacked the power to grant judicial immunity); Abbas, 74 F.3d at 512 (same).
II.
Even though Moussaoui does not have a right to access to the witnesses,16 I agree with Moussaoui that in the circumstances of this case the Government may not proceed (and, in fact, has not proceeded) as if it does not have information from these detainees. In compliance with its obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Government has been providing summaries * * * * to the defense. Throughout the long history of this case, Moussaoui has based his requests for access to these detainees on a need to elicit the information contained in these * * * * summaries in an admissible form. Accordingly, I would construe Moussaoui’s filings as containing a request for admission of the information itself, and I believe that this question is properly before us.17 Moreover, I note that the analysis of the materiality of the information and the adequacy of the substitutions is not affected by whether the right is asserted under the Sixth Amendment or under the Fifth Amendment.
In analyzing whether to admit the information in the * * * * summaries, we are faced with a request to admit information where the declarants of the information are completely unavailable because of legitimate separation of powers reasons. “The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations.” Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). Thus, to the extent *326that the information gives Moussaoui an opportunity to defend against the Government’s accusations, the materiality and fa-vorability of the information remains relevant. I concur in Part IV.C.2.a through Part IV.C.2.C of my colleagues’ opinion, which concludes that Moussaoui has made a sufficient showing that the information provided by the witnesses is material and favorable.
Given this conclusion and the fact that legitimate separation of powers reasons prohibit the defendant from having any access to the detainees, I believe that the Fifth Amendment’s guarantee of a fundamentally fair trial gives Moussaoui the right to introduce at least some of this information at trial,18see Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) (balancing the government’s interest in withholding the identity of a confidential informant with the defendant’s need for the information and holding that the defendant’s need for the information defeated the government’s interest in confidentiality); Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957) (holding that the government may not withhold documents material to the defense on the grounds of confidentiality and continue to prosecute the defendant); United States v. Fernandez, 913 F.2d 148 (4th Cir.1990) (holding that a finding that information is necessary to the defense defeats the government’s asserted privilege), even if the form of that information does not comply in all respects with evi-dentiary rules, see Chambers, 410 U.S. 284, 93 S.Ct. 1038 (holding that exclusion of evidence that was critical to the defense on the basis of traditional hearsay rules violated due process where statements had significant indications of reliability).19 This is not to say that the summaries are admissible in toto. I agree with my colleagues that “Moussaoui should not be allowed to rely on obviously inadmissible statements (e.g., statements resting on a witness’ belief rather than his personal knowledge).” Ante at 308. Similarly, the district court retains the power to exclude irrelevant information and to require inclusion of additional portions of the summaries, over and above what Moussaoui seeks to introduce, in the interest of completeness. However, the Government may not, consistent with due process, rely on legitimate separation of powers principles to prohibit any access to the detainees, and at the same time, argue that the statements in the summaries that are based on personal knowledge are inadmissible because they were made out-of-court and not under oath.
Given that Moussaoui. has a right to introduce the information, which is itself classified, I come to the issue of substitutions. I concur in Parts V.A through V.C *327of Chief Judge Wilkins’s opinion, which direct the district court to aid the parties in crafting acceptable substitutes based on the * * * * summaries20 and to give appropriate instructions to the jury regarding the source of the information.
III.
In summary, I concur in Parts I and II of my colleagues’ opinion. I dissent, however, from my colleagues’ conclusion that separation of powers principles do not prohibit the district court from granting access ter the witnesses. I do not believe that the district court had the authority to grant access to alien enemy combatants captured and detained overseas * * * * the goal of which is to protect American lives from future terrorist attacks. Because I concur in my colleagues’ assessment of the materiality and favorability of the information provided * * * * which is found in Part IV.C.2.a through Part IV. C.2.c of their opinion, I would find that Moussaoui does have a right, grounded in due process, to introduce the material and favorable information provided by these detainees that are in the * * * * control of the United States because legitimate separation of powers principles prohibit access to the detainees. I also concur in Parts V.A through V.C of Chief Judge Wilkins’s opinion, dealing with substitutions, to the extent that the analysis is not inconsistent with providing substitutions for the * * * * summaries.
. As my colleagues discuss, ante at 300, we assume for purposes of this appeal that the witnesses are in United States custody. It is not clear whether we are to assume that the *318witnesses are in the custody of the military * * * *. See ante at 301-02 & n. 9. Accordingly, I simply use the term "custodian” to refer to the military * * * *.
. I acknowledge that the Supreme Court has noted that the writ of habeas corpus "is directed to, and served upon, not the person confined, but his jailer.” See ante at 300 (quoting Ex Parte Endo, 323 U.S. 283, 306, 65 S.Ct. 208, 89 L.Ed. 243 (1944)); see also Braden v. 30th Jud. Cir. Ct., 410 U.S. 484, 494-95, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). The cases in which the Supreme Court so noted, however, involved American citizens, not aliens detained abroad. For example, in Braden, the question presented was the "choice of forum where a prisoner attacks an interstate detainer on federal habeas corpus.” Braden, 410 U.S. at 488, 93 S.Ct. 1123. In other words, a federal court had the authority to grant the writ, it was merely unclear which federal court was the appropriate one. Similarly, in Endo, the relevant question was whether the district court lost its jurisdiction over Endo’s habeas petition when she was moved to a Relocation Center outside the district court’s territorial jurisdiction. The court held that Endo's presence in the jurisdiction at the time she filed her petition gave the district court jurisdiction and that her later removal did not "cause it to lose jurisdiction where a person in whose custody she is remains within the district.” Endo, 323 U.S. at 306, 65 S.Ct. 208.
Along these same lines, although Braden and Endo do not distinguish between American citizens and aliens, "courts in peace time have little occasion to inquire whether litigants before them are alien or citizen.” Johnson v. Eisentrager, 339 U.S. 763, 771, 70 S.Ct. 936, 94 L.Ed. 1255 (1950). Accordingly, I do not believe that the fact that writs are directed to the custodian answers the question of whether separation of powers prohib*319its the district court from granting access to these aliens who are detained beyond the territorial jurisdiction of the United States.
. Although my colleagues conclude that the witnesses are within the process power of the court, they base this conclusion solely on the power over the custodian. See ante at 300-01 n. 8 ("The district court has never had — and does not now have — the power to serve process on the witnesses.”).
. I respectfully disagree with Judge Gregory’s suggestion that my analysis "places the cart before the horse.” Post at 327-28 n. 1. I believe that the analogy to CIPA, like the analogy to the evidentiary privilege cases generally, is inapt in analyzing the separation of powers question. In both circumstances, the district court has the authority to issue an order requiring disclosure, generally of classified documents in the government’s possession, and the question is whether the government’s interest in confidentiality can outweigh the defendant's need for the information. In contrast, I view the question presented by this case as whether separation of powers principles deprive the district court of the ability to grant the requested access. Thus, my analysis does not speak at all to the constitutionality of CIPA because under the CIPA framework, the district court’s authority to act is not in dispute.
Moreover, I believe that CIPA is best understood as protecting a defendant’s due process right to "a fair opportunity to defend against the State’s accusations,” Chambers v. Mississippi, 410 U.S. at 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and not a defendant’s compulsory process rights. My approach, of course, fully protects the defendant’s due process rights by allowing admission of the information sought. See infra at 325-27.
. It seems that under my colleagues' analysis, there is no Executive interest sufficiently important that it could deprive the district court of authority to enter orders granting access to the witnesses.
. I note that Congress specifically authorized the President to use military force "against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Pub.L. No. 107-40, 115 Stat. 224. (September 18, 2001).
. * * * *
. See ante at 306-07 (quoting Eisentrager, 339 U.S. at 778-79, 70 S.Ct. 936).
. For example, a captured enemy and his home country or terrorist group will know that despite what military * * * * say, their control over detainees is not absolute. Also, terrorists captured and tried in the United States will know that by requesting access to an alien who is detained outside the country, the United States will be forced to choose between interrupting * * * *, or severely limiting the prosecution of the U.S. defendant.
. For example, a wavering neutral country might be unwilling to aid the U.S., in capturing a terrorist because if he is captured by the U.S. then he will be subject to being produced at a trial of a U.S. defendant, which would undermine * * * * the captured enemy combatant. Because the captured enemy combatant might have information relevant to planned attacks in the neutral country that could not be obtained * * * *, wavering neutrals would not want to do anything that would undermine the ability to extract information from the enemy combatant.
. * * * *
. From the context of the immunity cases, I note that even if access to these witnesses were granted, the witnesses may well invoke the privilege against self-incrimination. See ante at 309 (noting that “it is possible that [the witnesses] would be reluctant to testify in a deposition setting”). If that occurred, the absence of prosecutorial misconduct in this casé would mean that the Government could not be compelled to grant immunity to the witnesses. In such a circumstance, the national security of our country would have been jeopardized by the grant of access, and Moussaoui would have gained nothing.
. My colleagues distinguish the immunity cases by noting that a defendant has no Sixth Amendment right to the testimony of witnesses who invoke their privilege against self-incrimination, whereas Moussaoui has a Sixth Amendment right to the testimony of these witnesses. Ante at 304. I believe that this distinction assumes away the very question before us, that is, whether Moussaoui has a Sixth Amendment right to the testimony, of these witnesses or whether legitimate separation of powers principles prohibit the district court from granting compulsory process to these witnesses.
. In United States v. Abbas, 74 F.3d 506, 512 (4th Cir.1996), we held that there was no prosecutorial misconduct in refusing to grant immunity to a co-defendant because the co-defendant was "the subject of impending prosecution.” If pursuing a legitimate prosecution does not constitute misconduct, then pursuing a legitimate * * * * information that might save thousands of lives certainly does not amount to misconduct.
. I note that if the balance of the separation of powers concerns subsequently shifts in favor of Moussaoui * * * *, the district court retains the flexibility to respond to changed circumstances, and our judicial system provides numerous opportunities to correct any error, either post-trial or on collateral review. On the other hand, if access is granted erroneously, the detriment to the Executive's interest is permanent — there is no way to undo the harm created by the interruption * * * *.
. For the reasons stated above, I do not believe that Moussaoui's Sixth Amendment rights have been violated. If there had been a violation of his Sixth Amendment rights, however, I would agree with my colleagues that the existence of due process rights would "not excuse us from remedying the violation of Moussaoui's Sixth Amendment rights.” Ante at 312-13 n. 17.
.I respectfully disagree with the characterization of my analysis as "[ajpplication of Chambers." Ante at 312-13 n. 17. Instead, this section addresses whether Moussaoui's overall due process right to a fundamentally fair trial includes a right to introduce the information at issue here — a right which Moussaoui has continuously asserted and a *326question that I believe is- properly before this court.
. The same conclusion would not obtain in the immunity context because in those cases the defendant’s inability to secure the witness’s testimony results in part from the independent decision of the witness to invoke his Fifth Amendment privilege against self-incrimination. Cf. United States v. Mackey, 117 F.3d 24, 28-29 (1st Cir.1997) (analyzing under traditional hearsay rules the defendant's attempt to admit a witness's out-of-court statement after the witness invoked his Fifth Amendment privilege against self-incrimination and the court refused to compel the government to grant immunity).
. One might argue that this course of action gives Moussaoui more than he might receive under my colleagues’ analysis. If access were granted and the witnesses refused to testify, Moussaoui would have no basis to seek admission of the information in the Government’s possession. My approach protects the Executive's ability to conduct its war-making, military, and foreign relations duties, while at the same time allowing introduction of evidence in Moussaoui's favor.
. I would require substitutions for the * * * * summaries, while my colleagues would require substitutions for hypothetical deposition testimony based on the summaries. Because, in both cases, the information in the summaries is all that the district court and the parties have with which to craft substitutes, I do not believe that this difference appreciably affects the substitution analysis. In fact, the substitutions will necessarily be more similar to the * * * * summaries than they will be to hypothetical deposition testimony.