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U.S. Moussaoui appeal ruled prematureDebate on defense access to witnesses returns to trial judge
From Phil Hirschkorn
(CNN) -- A federal appeals court panel has delayed looking at whether Zacarias Moussaoui, the only person facing charges in the United States stemming from the September 11, 2001, attacks, should have access to a captured al Qaeda member he says can prove his innocence. The 4th U.S. Circuit Court of Appeals said a Justice Department appeal against allowing Moussaoui to interview Ramzi Binalshibh was premature, but it added the court would willingly take up the issue when the time is right. Binalshibh is a senior al Qaeda member being held by the United States as an enemy combatant and a suspected planner of the September 11 attacks. Moussaoui contends Binalshibh can give testimony showing he was not part of the plot. In a 15-page opinion, a three-judge panel in Richmond, Virginia, said it lacked authority at this time to rule on a trial court's order that Moussaoui has the right to interview Binalshibh. The appeals court concluded that U.S. District Judge Leonie Brinkema's order granting Moussaoui access to Binalshibh was not a final order, so it "is not yet an appealable one." In oral arguments on June 3, Assistant U.S. Attorney General Michael Chertoff argued that the national security risks presented by allowing access to someone such as Binalshibh trumped a defendant's constitutional right to call available witnesses of his choosing. Chertoff said the court order infringed on the executive branch's constitutional powers to execute the war on terrorism. Frank Dunham, a defense attorney assisting Moussaoui, who is representing himself, countered that blocking access to potentially exculpatory witnesses would deny Moussaoui a fair trial. "In a death penalty case, the defendant really ought to have the right to present witnesses on his own behalf. That's the argument in a nutshell," Dunham told CNN. Moussaoui has admitted being an al Qaeda member but denies charges he was part of the September 11 plot. "We are prepared at this time to rule on the substantive questions before us," the appeals court ruled. "However, we are compelled to conclude that we are without authority to do so, because the order of the district court is not yet an appealable one. We are therefore constrained to dismiss." In January, Brinkema ordered that Moussaoui be permitted to conduct a long-distance, videotaped deposition with Binalshibh. Binalshibh has been detained at an undisclosed military location overseas since his capture nine months ago in Pakistan. The videotape could preserve his testimony for trial, which has been delayed indefinitely due to this legal standoff. One reason the Justice Department cited for opposing access to Binalshibh is the fear that such testimony would disclose classified information. The appeals court ruled that the government's appeal was premature, even if its future "noncompliance" with Brinkema's order on national security grounds was "anticipated or even certain." "The order of the district court concerned only the question of whether Moussaoui and standby counsel would be granted access to the enemy combatant witness (and if so, what form of access), not whether any particular statement of this witness would be admitted at trial," the appeals court ruled. If the government refuses to comply with a court order to allow access to Binalshibh, it could expose itself to sanctions, such as stripping all references to Binalshibh from the indictment, dropping the pursuit of the death penalty that applies to four of the six terror conspiracy counts against Moussaoui, or dismissing the whole case. "The order of the district court will not become final unless the government refuses to comply, and the district court imposes a sanction," the appeals court wrote. "We cannot acquire jurisdiction through speculation about what action the government may or may not take and what sanction the district court may or may not impose." Moussaoui, 35, a French citizen of Moroccan descent, is the only person facing criminal charges in the United States in connection with the September 11 attacks that killed more than 3,000 people. Binalshibh, 31, a Yemeni who was a member of a cell in Hamburg, Germany, allegedly wired Moussaoui $14,000 in August 2001 to help him pay for flight school, according to the indictment. The indictment suggests Moussaoui's 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, the Pentagon and a field in western Pennsylvania. The government's theory of the case has shifted from alleging that Moussaoui might have been the 20th hijacker -- the fifth terrorist on the Pennsylvania plane, the only one that had four hijackers -- to the notion that he would be aboard a fifth hijacked plane targeting the White House. Moussaoui was jailed on an immigration violation a month before September 11 after he aroused suspicions at a Minnesota flight school; he sought 747 simulator training though he had no pilot's license and could not even fly a Cessna. In court papers, he has contended that al Qaeda wanted him to participate in a future plot outside the United States. The appeals court ruling means debate over access to Binalshibh and other al Qaeda captives sought out by Moussaoui returns to the trial court. In a written response to the ruling, the Justice Department said, "The court has not yet ruled on the merits of the issue -- access to an alien seized abroad as an enemy combatant in the midst of a war." The judicial panel included 4th Circuit Chief Judge William Wilkins and Judges Karen Williams and Roger Gregory.
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