Government: Al Qaeda witness 'buries' 9/11 defendant Moussaoui
By Phil Hirschkorn
(CNN) -- Federal prosecutors in Virginia dispute the main claim behind Zacarias Moussaoui's reason for wanting to call a key al Qaeda captive as a witness in his pending criminal trial, saying the witness would convict rather than exonerate Moussaoui.
Prosecutors say that alleged September 11 attack planner Ramzi Binalshibh "is not an exculpatory witness," according to just-released oral arguments made by Assistant Attorney General Michael Chertoff.
The 4th U.S. Circuit Court of Appeals has unsealed a heavily edited transcript of the June 3 court session where classified evidence was discussed out of public earshot.
The partially public hearing focused on the government's appeal to block the January order of U.S. District Judge Leonie Brinkema permitting Moussaoui to conduct a remote video deposition with Binalshibh, a 31-year-old Yemeni detained as an "enemy combatant" overseas since his capture in Pakistan nine months ago.
The trial remains indefinitely delayed until this issue is resolved.
"The government would put this witness front and center in the case, because the witness buries the defendant," Chertoff said.
Still, the government staunchly opposes Moussaoui access to Binalshibh on national security grounds and says a court appearance would undermine the president's constitutional power to conduct the war on terrorism.
"We are really fighting a war unlike any other," Chertoff told the three-judge panel. "This is really a battlefield which occurs in the minds of some of the top operatives of al Qaeda."
The Justice Department further argues the Sixth Amendment right of any criminal defendant to call witnesses of his own choosing does not extend to non-citizens held overseas.
As a substitute for Binalshibh's live testimony, the government has proposed declassified, written summaries of Binalshibh's statements to his interrogators, but Brinkema has rejected them as "incomplete" and "unreliable."
Moussaoui, 35, a French national of Moroccan heritage, is the lone U.S. defendant charged in connection to the Sept. 11 terrorist attacks that killed about 3,000 people.
He is representing himself with assistance from court-appointed attorneys.
The Moussaoui indictment suggests his actions, such as undergoing flight training and attending military camps in Afghanistan, mirrored those of the 19 hijackers who crashed four airliners into the World Trade Center in Lower Manhattan, the Pentagon in northern Virginia, and, after a passenger uprising, a field in rural western Pennsylvania.
Moussaoui admits belonging to al Qaeda but denies any role in the Sept. 11 plot, having been jailed on immigration charges a month before it.
Four of the six terror conspiracy charges against him carry the death penalty, which the government intends to seek at trial.
"There's no suggestion that everything was directed at September 11 and ... the conspiracy dissolved and everybody went home and they'd satisfied their obligations," Chertoff told the appeals court.
"This was an ongoing conspiracy" that, Chertoff said, "was to continue indefinitely into the future."
Moussaoui contends in court papers that al Qaeda wanted him to participate in a future plot outside the United States.
Prosecutors' theory of the case has shifted from alleging that Moussaoui might have been the 20th hijacker -- the fifth terrorist on the only plane that had four hijackers Sept. 11 -- to the notion that he was to pilot a fifth hijacked plane that would have targeted the White House.
Moussaoui's attorneys argued Binalshibh's testimony would undercut either theory.
"It really doesn't give a whole lot of comfort," Chertoff said.
"It doesn't give him a lot, but it gives him a little," said Judge Karen Williams.
Defense attorney Edward MacMahon told the appeals court in closed session that Moussaoui has the right "to show that he was not a major participant in the 9/11 conspiracy" and that Binalshibh's testimony would "give backbone to the defense."
"What the government wants to do here is disqualify this witness," MacMahon said.
"They're saying that we're at war, and Mr. Moussaoui is a committed terrorist, an admitted member of al Qaeda, and therefore, we shouldn't give him the witness. And that makes them the architect of his defense, and we think that's just entirely inappropriate."
Defense attorneys have said in court papers that Moussaoui, who failed to earn a pilot's license after attending an Oklahoma flight school, could not even fly a Cessna, and there's no evidence that he knew the 19 hijackers.
Moussaoui has sought access to four other known top al Qaeda captives -- operations chief Khalid Shaikh Mohammed, money man Mohamed al-Hawsawi, training camp gatekeepers Abu Zubaydah and Ibn Shaikh al-Libi -- but none of those requests have been granted.