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Judge fails to rule on witness access issue in Moussaoui case

Zacarias Moussaoui
Zacarias Moussaoui

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WASHINGTON (CNN) -- A federal judge failed to rule Wednesday on whether a man charged in the September 11, 2001 terror attacks may be able to interview an al Qaeda operative as part of his defense.

U.S. District Judge Leonie Brinkema failed to rule following the closed-door hearing on Zacarias Moussaoui's request to interview Ramzi Binalshibh, a member of al Qaeda in U.S. custody.

Since the issues involved are classified, participants in Wednesday's hearing refused to discuss what was discussed.

If the access issue cannot be resolved at the district court level, the appeals court will have to take it up. It has scheduled a hearing for June 3 in the case.

Moussaoui is charged with conspiracy in the September 11 attacks. While he has denied any involvement in those hijackings, he has admitted belonging to al Qaeda. Normally, Moussaoui cannot see anyone in the Alexandria, Virginia, Detention Center except his mother and his lawyers -- with whom he avoids contact.

Moussaoui's trial is on hold pending a resolution of the access issue.

Brinkema ruled in January that Binalshibh could be questioned by video hook-up, by the U.S. government appealed the decision to the 4th U.S. Circuit Court in Richmond, Virginia. Binalshibh, whom U.S. investigators believe was one of the key organizers of the September 11 terror attacks, has told interrogators that Moussaoui was not scheduled to take part in it unless he was needed at the last moment, sources said.

Moussaoui, who is representing himself, and the lawyers advising him have argued it is crucial for their case to have the testimony of Binalshibh. Government attorneys are fighting against providing any access to the operative since he is still undergoing interrogation at an undisclosed location.

Before it heard any arguments in the case, the Appeals Court in April sent the issue back to Brinkema for her to try to resolve by May 15. Last month, the government submitted a proposal for potential access, which was later rejected by the defense.

Some experts in and out of the government have speculated that if the courts grant access to detainees such as Binalshibh it is likely Moussaoui would be taken out of the civilian judicial system and placed in the hands of the military authorities. He could then be brought before a military tribunal.

Separately, previously classified court documents provide new information regarding what has been happening behind closed doors in the past few months. The documents were released in response to a media motion in an attempt to lift some of the secrecy surrounding the case.

The documents show Moussaoui's court-appointed defense team sought volumes of CIA records and ran into heavy government objections. It was not clear just how many documents, if any, were turned over to the lawyers -- who, unlike Moussaoui, can review classified material.

Additionally, it was revealed that in November, Moussaoui and prosecutors questioned, presumably by video hook-up, a terrorism suspect, Faiz Bafana, who is in custody in Singapore. Bafana is allegedly a leader of the terror group Jemaah Islamiyah, which has links to al Qaeda.

The documents also show that El Hadi Ndiaye, Moussaoui's former imam, or spiritual leader, at a mosque he attended, and Mukarram Ali, his former roommate in Oklahoma, were deposed.

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