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Judge: Captives could help Moussaoui's case
(CNN) -- The judge presiding over the trial of Zacarias Moussaoui says that testimony from top al Qaeda captives in U.S. custody could provide evidence a jury might use to acquit Moussaoui of having a role in the September 11 terrorist attacks. "Detainees will likely be able to provide exculpatory testimony," said U.S. District Judge Leonie Brinkema in an opinion unsealed Wednesday, and "could provide favorable testimony on Moussaoui's behalf." Brinkema explained her reasons for granting Moussaoui's request to obtain testimony from Khalid Shaikh Mohammed, the reputed architect of the September 11 attacks, and Mohamed al-Hawsawi, an alleged financier of the 19 hijackers. A joint team of Pakistani and FBI agents caught Mohammed and al-Hawsawi March 1 at an al Qaeda safe house in Pakistan. Three days later, Moussaoui, who is heading up his own defense from jail, filed a handwritten motion for access to Mohammed, calling him a "top mujahid brother." He asked for access to al-Hawsawi a week later. CNN first reported the judge's decision last Friday, when it was filed under seal, and sources familiar with it confirmed the captives referenced are Mohammed and al-Hawsawi. Their names, along with other information that remains classified, is blacked out of the released copies of the opinion. Brinkema said the captives' testimony "supports the defense contention that Moussaoui was not involved in the September 11 operation and supports the claim that Moussaoui was not part of the September 11 plot, because the defendant was in the United States at the time, but was not contacted." The question of access to fellow al Qaeda members has indefinitely delayed the trial of Moussaoui, the sole person charged in the United States in connection with the September 11, 2001, attacks. Attorneys assisting Moussaoui's defense have suggested that the government might choose to declare Moussaoui an enemy combatant and move his case to a military tribunal instead of allowing him to talk with detained al Qaeda members. Moussaoui, 35, a French citizen of Moroccan descent, maintains that he had no role in the attacks, but he acknowledges that he is a member of al Qaeda, the Islamic terrorist group behind them. Moussaoui has said he is wrongly accused, because he intended to participate in a post-September 11 plot outside the United States. "I was not 9/11 material, but a wanna-be post-9/11 terrorist," Moussaoui wrote in an August 11 motion to the court that was unsealed Tuesday. (Full story) Moussaoui faces six charges of conspiracy -- to commit terrorism transcending national boundaries; to commit aircraft piracy; to destroy aircraft; to use weapons of mass destruction; to murder United States employees; and to destroy property. "At a minimum," Brinkema found, the captives' testimony "would eliminate the possibility of the death sentence and could exculpate him from the specific conspiracies charged in this case." The judge labeled "unpersuasive" the prosecution arguments that the captives help convict rather than acquit Moussaoui. Brinkema also rejected prosecutor arguments that Moussaoui's constitutional right to call available witnesses of his own choosing did not apply to "enemy combatants captured in the theater of war and detained abroad." The Justice Department also opposes defendant access to the al Qaeda captives because, prosecutors say, that would interrupt their ongoing interrogations and hurt the United States in its effort to gain intelligence from them. Both Mohammed and al-Hawsawi are being held by the U.S. military at an undisclosed military location overseas. Brinkema ordered the government to make the captives available by December 5 for live depositions via satellite, the same procedure she ordered in January for a pretrial deposition of another al Qaeda detainee, Ramzi Binalshibh, an alleged coordinator of the September 11 plot. The judge ruled, however, she won't grant the attorneys assisting Moussaoui unmonitored, pretrial access, as the defense had requested, because of what she called "national security concerns." The Justice Department has refused to make Binalshibh available for his court-ordered deposition, and Brinkema is on the verge of issuing legal penalties for the refusal, which the government plans to appeal. Prosecutors have distanced themselves from statements by government officials asserting that Moussaoui would have been the 20th hijacker on September 11 had he not been jailed on an immigration violation a month before the attacks. CNN producers Kevin Bohn and Phil Hirschkorn contributed to this report.
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