concurring in part and dissenting in part:
I concur with my colleagues’ conclusion that the witnesses at issue in this appeal could provide material, favorable testimony on Moussaoui’s behalf. I further concur with Chief Judge Wilkins’ conclusion that the witnesses’ overseas location does not preclude a finding that they are within the reach of the Compulsory Process Clause because they are, for purposes of this litigation, deemed to be in the custody of the United States.1 I wholeheartedly *328agree with my colleagues that the Government has an absolute right to refuse access to the witnesses on national security grounds; we shall not, indeed we must not, question the Government’s determination that permitting the witnesses to be deposed would put our nation’s security at risk. See United States v. Fernandez, 913 F.2d 148, 154 (4th Cir.1990) (“We are not asked, and we have no authority, to consider judgments made by the Attorney General concerning the extent to which the information in issue here implicates national security.”). Further, as noted in the majority opinion, the district court correctly found that the proposed substitutions offered by the Government are not adequate to protect Moussaoui’s right to a fair trial. However, as both the district court and the majority have recognized, the Government’s refusal to comply with the district court’s orders necessarily brings with it some consequences.2 See generally CIPA § 6(e)(2) (providing for dismissal of indictment or other sanction upon Government’s refusal to disclose classified information when ordered to do so by the district court);3 Jencks v. United States, 353 *329U.S. 657, 670-71, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957) (holding that the Government may “invoke its evidentiary privileges [to avoid public disclosure of highly sensitive material] only at the price of letting the defendant go free_ [S]inee the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense.”) (quoting United States v. Reynolds, 345 U.S. 1, 12, 73 S.Ct. 528, 97 L.Ed. 727 (1953)); Fernandez, 913 F.2d at 162-64 (affirming dismissal of indictment when Government elected not to disclose classified evidence that was material to the defense). It is in formulating the remedy for the Government’s refusal to comply with the district court’s order that I must part ways with the majority.4
The majority directs that the district court itself craft substitutions for the witnesses’ potential testimony, using portions of the * * * * summaries designated by Moussaoui, subject to objection by the Government. The majority further instructs that only Moussaoui may admit into evidence, or elect not to admit, the substitutions, subject, of course, to the district court’s ruling on admissibility. While I appreciate that the majority’s solution to the difficult problem of ensuring Mous-saoui’s rights is an effort to put him as nearly as possible in the place where he would be if he were able to examine the witnesses, I respectfully suggest that this solution places the district court in a thoroughly untenable position. Moreover, this solution is contrary to CIPA’s expectation that the Government shall provide proposed substitutions for classified information, and it essentially places the district court in the position of being an advocate in the proceedings.
The district court has stated, on the record, that the substitutions previously offered by the Government were necessarily flawed because they were inherently unreliable, particularly because the * * * * summaries used in formulating the substitutions were not made under oath, were taken in circumstances not designed to guarantee reliability, and were not responsive to questions posed by the defense. Although we may take issue with some of the concerns identified by the district court, by forcing that court to construct substitutions from the same summaries, we are asking the court to do something that it has stated cannot be done. It will be difficult — perhaps impossible — for the district court to credibly prepare substitutions that it would consider admissible given its prior findings on the reliability of the material from which the substitutions are to be drawn. We are also asking the district court to do something that is not anticipated, implicitly or explicitly, by CIPA. The Government, not the district court, is charged with preparing the substitutes; the court’s role is to determine whether those substitutes are adequate to protect the defendant’s rights. CIPA §§ 4, 6(c)(1); see Fernandez, 913 F.2d at 154. By asking the district court to prepare the substitutions, we are transferring to the court the authority that CIPA vests in the Government.
*330More importantly, as the Government argued in challenging the defense’s proposed substitutions in the district court, and as that court found, the purpose of CIPA, or any other equitable remedy imposed by the courts, is not to offer the defendant a windfall to which he would not otherwise be entitled. If, as the majority instructs, the substitutions are based on Moussaoui’s selections from the * * * * summaries, subject to the Government’s objection but not incorporating the Government’s own selections, we may be giving the defense an opportunity to offer a distorted version of the witnesses’ statements, a result clearly not contemplated by CIPA, nor intended by the majority.5 Additionally, as the majority recognizes, “because many rulings on admissability— particularly those relating to relevance— can only be decided in the context of a trial, most of the witnesses’ statements cannot meaningfully be assessed for admissibility at this time.” (Op. at 308). Asking the district court to pick and choose from among the summaries to craft substitutions for Moussaoui’s use before the Government’s evidence is forecast is a risky proposition at best. The * * * * summaries paint a complete, if disjointed, picture of the statements made by the witnesses * * * *; if the summaries are to be used as a substitution for the witnesses’ testimony, they should be used in their entirety, subject to the district court’s trial rulings on admissibility of any given passage to which either party objects, whether on hearsay grounds, as cumulative, as unduly prejudicial, or upon any other evidentiary basis.
Additionally, I disagree with the majority’s decision to vacate the district court’s order striking the Government’s death notice at this juncture.6
In a prosecution under the Federal Death Penalty Act, 18 U.S.C.A. § 3591-3598 (West 2000 & Supp.2003), the fact finder is required to consider whether any mitigating factors weigh against imposing a sentence of death. One potential mitigating factor specifically identified in the Act is the defendant’s role in the offense:
(a) Mitigating factors. — In determining whether a sentence of death is to be imposed on a defendant, the finder of fact shall consider any mitigating factor, including the following:
*331(3) Minor participation. — The defendant is punishable as a principal in the offense, which was committed by another, but the defendant’s participation was relatively minor, regardless of whether the participation was so minor as to constitute a defense to the charge.
18 U.S.C.A. § 3592(a)(3). In other words, if a defendant is guilty of an offense, but played a small part in it, the jury (or, in a bench trial, the judge) could find that he was not sufficiently culpable to warrant the imposition of the death penalty.
Moussaoui argues that the witnesses could offer testimony that would show he did not participate in an act that directly resulted in death: they would testify, he contends, that he did not have an active role in the planned September 11 attack, nor did he know of the plan and fail to disclose that knowledge to investigators, who might have been able to use that knowledge to prevent the attack, when he was taken into custody and questioned pri- or to the attack. Moussaoui’s theory of the case, as we understand it, is that even though he is a member of al Qaeda who has pledged his allegiance to Osama bin Laden, and even though he was willing to engage in terrorist acts, and was indeed training to participate in terrorist acts, he was not involved in the terrorist acts that occurred on September 11, 2001, nor did he know of the plans before the attack took place. Instead, his participation was to involve later attacks, attacks that may or may not have been planned to occur in the United States or against this country’s interests abroad. We cannot know to any degree of certainty whether the witnesses at issue would absolve Moussaoui of any responsibility for any part of the September 11 operation, or knowledge of the planned attack, nor do we know if a jury would find credible any such testimony. However, because the Government has exercised its right to preclude Moussaoui from examining the witnesses, and based on the * * * * summaries in the present record, we must assume for present purposes that they would so testify.
Even if Moussaoui is permitted to admit substitutions derived from the * * * * summaries, those substitutions cannot be considered a functional equivalent of live (or deposition) testimony, nor are they adequate or sufficient to substitute for testimony. Cf. Old Chief v. United States, 519 U.S. 172, 187-89, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) (recognizing that stipulation “may be no match for the robust evidence that would be used to prove” the stipulated fact). Because the summaries are not responses to the questions that Moussaoui would ask if given the opportunity to depose the witnesses, and because the jury will not be able to see the witnesses and judge their credibility, use of the summaries will necessarily place severe limits on the evidence Moussaoui can present in his defense, particularly during the penalty phase of a capital proceeding. The ultimate question that must be resolved to determine whether Moussaoui is eligible for the death penalty is this: Did he participate in the September 11 attack, or know of the attack in advance? If Moussaoui cannot ask this question of the witnesses who have direct knowledge, he is undeniably and irretrievably handicapped in his ability to defend himself from a sentence of death. The Government may argue that no one, other than Moussaoui himself, has stated he was not involved. Moussaoui has no access to those who could exonerate him from death eligibility, and the jury will not have any evidence upon which to base a finding in this regard except, possibly, for Moussaoui’s own testimony, which he is not obligated to provide. Moussaoui will not be able to offer the *332most relevant evidence with which he might be able to avoid the death penalty.
To leave open the possibility of a sentence of death given these constraints on Moussaoui’s ability to defend himself would, in my view, subvert the well-established rule that a defendant cannot be sentenced to death if the jury is precluded from considering mitigating evidence pertaining to the defendant’s role in the offense. See, e.g., Lockett v. Ohio, 438 U.S. 586, 604, 608, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). See also Skipper v. South Carolina, 476 U.S. 1, 5, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986); United States v. Jackson, 327 F.3d 273, 299 (4th Cir.2003) (“During sentencing in a capital case, the factfinder may ‘not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.’ ”) (quoting Lockett, 438 U.S. at 604, 98 S.Ct. 2954). A sentence of death requires “a greater degree of reliability” than any lesser sentence. Lockett, 438 U.S. at 604, 98 S.Ct. 2954 (citing Woodson v. North Carolina, 428 U.S. 280, 304-05, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976)).
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.
. Contrary to the view Judge Williams expresses in her separate opinion, I cannot accept that Moussaoui’s Sixth Amendment right of access may not exist because of separation of powers principles; this analysis places the cart before the horse. The Government’s national security concerns do not preclude a finding that a criminal defendant in an Article III court is entitled to access witnesses; indeed, the whole of the Classified Information Procedures Act, 18 U.S.C.A. app. 3 (West 2000 & Supp.2003), is premised on the theory that criminal defendants have rights of access, in some instances, to information deemed classified by the Executive branch, notwithstanding separation of powers principles. As CIPA recognizes, the Government’s national security concerns may override a defendant's need for information to the extent that the courts may limit the form of access; this cannot be read to mean, though, that the defendant's constitutional rights cease to exist in the face of the Government's security considerations. Indeed, if Judge Williams' assessment were correct, we would be constrained to conclude that CIPA itself is an unconstitutional encroachment upon the Executive branch, as CIPA regulates, and, in the absence of a § 6(e) affidavit from the Attorney General, permits the Judiciary to order some form of disclosure of classified information in judicial proceedings even though the Executive branch has determined that the information must be protected based on national security concerns. See CIPA §§ 1, 5-8.
With all respect to Judge Williams, every criminal defendant in every Article III pro*328ceeding has a panoply of rights that we are duty-bound to protect, even in the face of the Government’s interest in keeping sensitive or damaging evidence secure. See, e.g., Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) ("Few rights are more fundamental than that of an accused to present witnesses in his own defense.”); Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) ("The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense.... This right is a fundamental element of due process of law.”). The defendant's rights may have to be satisfied by some means other than complete disclosure of the information at issue (or, in this case, complete access to the witnesses), but his rights do not evaporate simply because the Government's national security concerns make satisfying those rights more complicated than in the run-of-the-mill criminal prosecution. As we said in United States v. Fernandez, 913 F.2d 148 (4th Cir.1990), "the government is simultaneously prosecuting the defendant and attempting to restrict his ability to use information that he feels is necessary to defend himself against the prosecution. Although CIPA contemplates that the use of classified information be streamlined, courts must not be remiss in protecting a defendant's right to a full and meaningful presentation of his claim to innocence.” 913 F.2d at 154.
Judge Williams asserts that this recognition of the defendant's constitutional rights impinges on the Executive’s ability to perform its duties with regard to war-making, national security, and foreign relations. However, the Executive is not compelled to comply with the district court's order to provide access to the witnesses. The Executive branch has in fact elected not to comply, as is its prerogative. In exchange for electing not to comply, there must be consequences, true; however, the consequences are, to a great degree, in the control of the Executive. It may choose to proceed with this prosecution under the limits imposed by the courts, or it may move the prosecution out of an Article III forum and into a military tribunal, or it may elect to drop some of the present charges, and may even indict Moussaoui on alternate charges for which the evidence in dispute would not be relevant. How to proceed with the prosecution is a matter for the Executive to decide; how to protect the integrity of the criminal proceedings is a matter for the Judiciary.
. To be clear: The consequences resulting from the Government's non-compliance are not intended as a penalty upon the Government. Rather, they are a means of protecting the rights of the Defendant, and of protecting the integrity of these judicial proceedings.
. We have stated that this is not, strictly speaking, a CIPA case. See United States v. Moussaoui, 333 F.3d 509, 514-15 (4th Cir.2003); see also op. at 307-08, n. 12. Because the witnesses will not be deposed, we are now primarily concerned, with the use of summaries of * * * * statements; these summaries are the sort of documents to which the CIPA is usually applied. Accordingly, this case has, in my view, moved more firmly into CIPA territory. My concurrence does not depend solely on CIPA as a basis for our jurisdiction, *329however; as the majority concludes, we have jurisdiction over this appeal pursuant to 18 U.S.C.A. § 3731 (West Supp.2003).
. Under CIPA, the usual remedy for the Government’s failure to comply with a district court’s disclosure order is dismissal of the indictment. CIPA § 6(e)(2). However, like the majority and the district court, I believe that the ends of justice are best served by a circumspect exercise of discretion in creating an appropriate remedy.
. I also expect that we are setting ourselves out as super-arbiters of the admission of evidence in this case. If the district court overrules an objection by the Government to Moussaoui’s proffered materials for inclusion in the substitutions, for example, it is fair to assume that the Government might seek to appeal the district court’s ruling. Conversely, if Moussaoui seeks inclusion of material but the district court sustains the Government's objection to the evidence, Moussaoui may seek to appeal. This court is not in a position to make evidentiary rulings; indeed, it is the district court’s purview to do so. As the majority recognizes, the district court is far more familiar with the record and the facts of this case than are we. The construct proposed by the majority will, I fear, lead to unnecessary piecemeal review of the district court's rulings with regard to the substitutions it has been tasked to prepare, a review we are ill-equipped to conduct.
. The majority leaves open the possibilily that if the substitutions crafted by the district court are inadequate, or if the jury is not properly instructed as to the circumstances of the substitutions and their reliability, the death notice could be stricken and other sanctions could be imposed. In my view, however, Moussaoui's inability to question the witnesses critically impairs his ability to prepare a defense, particularly (though not solely) as to a potential death sentence. Accordingly, as explained more fully below, if Moussaoui must proceed to trial on the basis of substitutions rather than the witnesses' testimony, as we all agree he must, the death penalty should be removed from the range of possible sentences Moussaoui may face.