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U.S. refuses judge's order in Moussaoui trial

Zacarias Moussaoui

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(CNN) -- Tempting the judge presiding over the Zacarias Moussaoui trial to dismiss the case, federal prosecutors said Wednesday they will not cooperate with her latest order to permit two top al Qaeda captives to testify on Moussaoui's behalf.

"The government cannot, consistent with the interests of national security, comply with the court's order," prosecutors said in papers filed with U.S. District Judge Leonie Brinkema in Alexandria, Virginia.

Moussaoui, 35, a French citizen of Moroccan descent and the lone U.S. defendant in connection with the September 11 terror plot, maintains that he had no role in the attacks, but admits belonging to al Qaeda, the Islamic terrorist group behind them.

He said he was not called upon to act in the September 11 attacks and is not guilty of any conspiracy related to them. Instead, he has argued that he was waiting to participate in a later plot outside the United States.

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.

Part of his defense requires testimony from two top al Qaeda operatives captured in Pakistan more than six months ago and are being held in undisclosed military locations by the United States. (Full story)

Last month, Brinkema ordered the government to make available Khalid Shaikh Mohammed, the reputed architect of the September 11 attacks, and Mohamed al-Hawsawi, an alleged financier of the 19 hijackers who crashed planes into the World Trade Center, the Pentagon, and a field in Pennsylvania, killing some 3,000 people.

Brinkema ordered videotaped depositions via satellite by December 5.

The Justice Department opposes the order, prosecutors said, in part "because the deposition will result in the disclosure of classified information."

Prosecutors have also argued the depositions would disrupt ongoing interrogations of the detainees and subvert President Bush's constitutional powers as commander-in-chief to conduct the war on terrorism.

However, Brinkema has decided the detainees' testimony is necessary for a fair trial, saying they might clear Moussaoui of involvement in the September 11 conspiracy or at least spare him a death sentence.

"The government realizes that the attorney general's objection means that the depositions cannot go forward and obligates the court now to dismiss the indictment unless the court finds that the interests of justice can be served by another action," prosecutors said.

Even before Brinkema ordered access to Mohammed and al-Hawsawi, Moussaoui's trial was delayed by a parallel dispute over access to accused September 11 coordinator, Ramzi Binalshibh, who allegedly wired thousands of dollars to Moussaoui in the United States.

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.

"These unprecedented depositions of three enemy combatants would needlessly jeopardize national security at a time of war with an enemy who has already murdered thousands of our citizens," prosecutors said.

Prosecutors indicated they plan to pursue appeals of Brinkema's orders and any legal sanctions she might impose, including dismissal.

A government appeal of the earlier Binalshibh order is already pending before the 4th U.S. Circuit Court of Appeals in Richmond, Virginia.

"I'm disappointed we won't get the witnesses, because they exculpate my client," said Frank Dunham, one of the defense attorneys assisting Moussaoui, who is representing himself.

In her opinion last month, Brinkema said the testimony of Mohammed "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" by the plotters.

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.

Instead, prosecutors now allege, Moussaoui, who attended two flight schools in the United States in 2001, was destined to pilot a fifth hijacked plane into the White House.

From CNN's Phil Hirschkorn.

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