Judge bars 9/11 evidence against Moussaoui
From Phil Hirschkorn
(CNN) -- A federal judge Thursday barred prosecutors from presenting evidence that Zacarias Moussaoui, the only person in the United States charged in connection with the September 11 terror attacks, knew about them or participated.
Although U.S. District Judge Leonie Brinkema stopped short of dismissing the case, the prosecution's case was dealt a severe blow. In Brinkema's estimation, the charges against Moussaoui related to September 11 constitute about three-quarters of the indictment.
Brinkema also ordered that prosecutors cannot seek the death penalty in the case against Moussaoui, whose trial has been pending for 21 months in the Eastern District of Virginia, in Alexandria.
Moussaoui was in jail in Minnesota on immigration violation charges when the September 11, 2001, attacks took place. He was indicted that December 11 on 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.
Brinkema issued the sanctions after prosecutors refused to follow her orders to produce witnesses the defense wants to interview, but she stayed her order pending an appeals court review.
"The unprecedented investment of both human and material resources in this case mandates the careful consideration of some sanction other than dismissal," Brinkema wrote in her 15-page opinion. "The interests of justice would not be well served by dismissal."
Moussaoui wants to question Khalid Shaikh Mohammed, who is considered the mastermind of the September 11 attacks; his key planner, Ramzi Binalshibh; and Mustafa Ahmed al-Hawsawi, a suspected paymaster for al Qaeda. All three are in custody at various locations overseas.
Brinkema had said the videotaped depositions (via satellite) from the three detainees were necessary for Moussaoui to have a fair trial, in part because classified summaries of their testimony indicate they could exonerate Moussaoui of the most serious charges against him -- that he had a role in the September 11 conspiracy -- or could spare him the death penalty.
Prosecutors opposed letting Moussaoui depose the detainees and defied Brinkema's order to make them available, saying such actions would disrupt their interrogations and subvert the president's constitutional powers as commander in chief to conduct the war on terrorism.
They did offer written summaries of detainee debriefings as substitutes, but the judge deemed such summaries "unreliable, incomplete and inaccurate."
Both sides in the case had asked for dismissal. Prosecutors thought it would expedite their appeal to reverse Brinkema's orders on detainee access. The defense argued the government's refusal to make the detainees available violated Moussaoui's right to a fair trial.
"We continue to believe that the Constitution does not require and national security will not permit the government to allow Moussaoui, an avowed terrorist, to have direct access to his terrorist confederates who have been detained abroad as enemy combatants in the midst of a war," U.S. Attorney Paul McNulty said Thursday.
Prosecutors also disagreed that information provided by the detainees could acquit Moussaoui, saying, for example, that Binalshibh "buries" him.
"We are studying the court's opinion to determine how best to proceed," McNulty said.
Moussaoui is leading his own defense, but he is being helped by several court-appointed attorneys, who had argued a jury should decide the credibility of the detainees' testimony, which they called "self-corroborating."
"The way we read the court's opinion is that it tried to balance the government's national security concerns against Moussaoui's fair trial rights," said defense attorney Edward MacMahon outside the courthouse in Alexandria on Thursday.
"It concluded, based on the government's own arguments, that the indictment was broad enough to survive without any reference to the events of September 11."
Moussaoui, 35, a French citizen of Moroccan heritage, acknowledges belonging to al Qaeda and intending to participate in a post-September 11 plot outside the United States, but he denies he conspired with the hijackers who carried out the attacks.
Mohammed, 39, a Pakistani national born in Kuwait, and al-Hawsawi, 34, a Saudi, were captured together in a March 1 raid on an al Qaeda hideout outside the Pakistani capital of Islamabad.
Binalshibh, 32, a Yemeni, who allegedly wired thousands of dollars to Moussaoui in 2001, was caught September 11, 2002, in Karachi, Pakistan
Prosecutors have alleged in closed court hearings that Moussaoui, who attended two flight schools in the United States in 2001 but failed to obtain a pilot's license, wanted to crash a jetliner into the White House.
Defense attorneys have said no evidence exists that Moussaoui had any contact with the 19 September 11 hijackers.
They have characterized Moussaoui as a "problematic and unstable hanger-on" whom al Qaeda leaders "could never have trusted to be a participant in any significant undertaking."