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Court weighs whether to reconsider Moussaoui access to terror captive

From Terry Frieden
and Phil Hirschkorn

Moussaoui denies being involved in the September 11 attacks.
Moussaoui denies being involved in the September 11 attacks.

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(CNN) -- Attorneys for Zacarias Moussaoui oppose a Justice Department's request for an appeals court to reconsider whether Moussaoui should have access to a top al Qaeda captive.

The 4th U.S. Circuit Court of Appeals in Richmond, Virginia, had asked for the quick reply, after prosecutors Thursday filed an "emergency motion" that a three-judge panel -- or, alternatively, the full 13-judge appeals court -- should rehear the case, which it rejected last month on a legal technicality.

The government had urged the appeals court to move quickly in the case and stay a Monday deadline, set by the trial court, to either make the captive, Ramzi Binalshibh, available or risk legal sanctions.

But Moussaoui's attorneys contended Friday that the government's petition is "neither an emergency nor a valid basis to grant the requested relief."

The 10-month legal standoff, which has indefinitely-delayed the Moussaoui trial, stems from Moussaoui's claim that Binalshibh can clear him as an alleged participant in the September 11, 2001, terrorist attack conspiracy. But prosecutors claim allowing testimony from Binalshibh would damage national security.

Binalshibh, 31, a Yemeni who was a member of al Qaeda's September 11 leadership cell in Hamburg, Germany, has been held by the U.S. military as an enemy combatant overseas since he was captured 10 months ago in Pakistan.

U.S. District Judge Leonie Brinkema, the trial judge hearing Moussaoui's case in Alexandria, Virginia, may impose sanctions if prosecutors do not comply with her January order that Binalshibh be presented for a videotaped deposition, via satellite.

Possible sanctions include finding government officials in contempt or dismissal of the charges.

Brinkema has sided with attorneys assisting Moussaoui who argue that his right to a fair trial as guaranteed by the Sixth Amendment depends on his constitutional right to call available witnesses of his choosing.

In addition to arguing about a risk to national security, federal prosecutors contend that Brinkema's order infringes on President Bush's constitutional power as commander-in chief.

Moussaoui admits belonging to al Qaeda and being loyal to its leader, Osama bin Laden. But he insists he was not part of the September 11 attacks and was instead destined for a post-September 11 mission outside the United States.

Prosecutors have alternately suggested he was either supposed to be the 20th hijacker on Sept. 11 or was part of a hijacking team targeting a fifth plane that day.

Moussaoui, 35, a French national of Moroccan heritage, is the lone U.S. defendant charged in connection with the Sept. 11 terrorist attacks that killed about 3,000 people.

Four of the six terror conspiracy charges against him carry the death penalty, which prosecutors intend to seek at trial.

Besides Binalshibh, Moussaoui has sought access to four other known top al Qaeda captives -- operations chief Khalid Shaikh Mohammed, money man Mohamed al-Hawsawi, and training camp gatekeepers Abu Zubaydah and Ibn Shaikh al-Libi. None of those requests have been granted.

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