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Appeals court seeks compromise to keep Moussaoui case in civil courtImpasse focuses on classified information
From Terry Frieden
RICHMOND, Virginia (CNN) -- A federal appeals court on Tuesday asked prosecutors and the defense to find a compromise on classified information that could salvage the trial of terrorism suspect Zacarias Moussaoui. In a brief unsigned order, the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, sent the case back to the lower court in Alexandria, urging the judge, the government prosecutors, and the defense to resolve the dispute so the high-profile case may proceed in open court. The trial judge, Leonie Brinkema in Alexandria, Virginia, had questioned the ability of the prosecution to proceed, citing a "shroud of secrecy" that has kept volumes of information from Moussaoui. The government has the alternative of sending the case to a military tribunal, which could allow greater secrecy and fewer rights for a defendant. The French citizen is representing himself and has no access to classified information. Lawyers appointed by the court to represent his interests have seen the material, but Moussaoui has refused to cooperate with them. The dispute concerns, at least in part, the defense's request for access to al Qaeda operative Ramzi Binalshibh, a mastermind of the September 11 terrorist attacks. District Judge Leonie Brinkema, who is overseeing the case, ruled in January that the defense could have some access, according to sources, prompting the government to appeal the case. Sources have said the Pentagon and U.S. intelligence officials have opposed granting any access to Binalshibh, who is still in U.S. custody and undergoing interrogation, as well as any other detainees in order not to interrupt the questioning process. Some officials have speculated that if the government is forced by higher courts to give access, then officials might take Moussaoui out of the civilian judicial system and transfer him into the military system, where he probably would have fewer rights. Moussaoui is the only person charged in connection with the Sept. 11 conspiracy to launch terrorist attacks in New York and Washington. "The government is to be given an opportunity to propose substitutions for the classified information authorized to be disclosed by the District Court," the order said. It also called for Moussaoui "to be given an opportunity to respond to any proposed substitutions." The appeals court gave Brinkema a May 15 deadline to rule on whether the government's compromise proposal is sufficient to afford Moussaoui a fair trial. The appeals court has pushed back the original May 7 date for oral arguments, if they are still necessary, to June 3. The appellate judges have closed proceedings to the public, although news organizations have asked that arguments on unclassified matters be conducted openly. Brinkema scheduled a hearing May 7 to discuss proposed compromises. The proceeding will be held in private. Moussaoui's trial is scheduled for the fall. After Moussaoui complained about the lack of information available to him from the government, Brinkema expressed concern about the government's "shroud of secrecy" in the case and expressed doubt the case could proceed. Government prosecutors in the U.S. attorney's office in Alexandria Monday responded that Moussaoui has sufficient information, and substantial secrecy must be maintained to protect national security.
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