Judges to hear Moussaoui case appeal
Ruling could affect how terrorism suspects are prosecuted
From Phil Hirschkorn
and Kelli Arena
Zacarias Moussaoui was indicted two years ago this month.
RICHMOND, Virginia (CNN) -- Federal appeals court judges will hear oral arguments Wednesday about how the government's case against acknowledged al Qaeda operative Zacarias Moussaoui ought to proceed.
The judges' decision could affect how terrorism suspects are prosecuted in U.S. civilian courts.
Moussaoui, 35, who was indicted two years ago this month, remains the only criminal defendant publicly charged in the United States in connection with the terrorist attacks of September 11, 2001, a plot he has denied any role in. Moussaoui faces six charges, including conspiracy to commit terrorism and conspiracy to use weapons of mass destruction.
Justice Department prosecutors have been stymied by Moussaoui's demand to obtain testimony from key terrorism suspects in U.S. custody and the trial judge's ruling that his right to a fair trial hinges on interviewing those detainees.
U.S. District Judge Leonie Brinkema in Alexandria, Virginia, ruled in October that Moussaoui had the right to compel testimony from Khalid Shaikh Mohammed, Ramzi Binalshibh and Mustafa al-Hawsawi.
Mohammed is the reputed architect of the September 11 attacks, Binalshibh is one of the attacks' self-described coordinators, and al-Hawsawi is an alleged financier of the 19 hijackers.
All three men have been captured in Pakistan during the past 15 months and remain in U.S. military custody at undisclosed locations outside the United States.
Prosecutors contend the detainees and others like them are "enemy combatants" beyond any court's reach.
They argue the Constitution's separation of powers between the judicial and executive branches precludes judges from interfering with the president's power as commander in chief in conducting the war on terrorism.
The three-judge panel of the 4th U.S. Circuit Court of Appeals heard the same arguments in June, when attorneys debated Brinkema's January order that Moussaoui be given access to Binalshibh.
At the time, the appeals court said it was prepared to rule but would not until Brinkema imposed sanctions on the government for defying her order to allow a long-distance, videotaped deposition of Binalshibh.
Subsequently, Brinkema ruled Moussaoui is entitled the same pretrial access to Mohammed and al-Hawsawi.
After Attorney General John Ashcroft informed the trial court that the Bush administration would not produce the al Qaeda witnesses for national security reasons, Brinkema imposed sanctions, which the government is appealing.
The judge barred the government from pursuing the death penalty for Moussaoui and forbade prosecutors from introducing any evidence that Moussaoui had any involvement in or knowledge of the September 11 attacks. (Full story)
Brinkema said her reading of classified summaries of the detainees' interrogations led her to believe their testimony could help the defense persuade a jury to exonerate Moussaoui of the most serious charges.
She said the detainees' statements to interrogators also indicated to her that Moussaoui was a "minor participant" in al Qaeda's global conspiracy to kill Americans.
Brinkema rejected government-proposed written summaries of the detainees' statements as inadequate.
"The district court's approach would permit al Qaeda terrorists on trial in the United States to hold the conduct of the war hostage to claims that refusal to produce various detainees violated their constitutional rights," the government argued in its appeals court brief.
"Claims identical to this one, if permitted, would undoubtedly become terrorist defendants' favorite trump card, for they would guarantee either the hobbling of a prosecution or the hobbling of interrogation efforts," prosecutors said.
Defense attorneys say the legal standoff is not a choice between "effective intelligence gathering and effective prosecution," as the government put it, but a question of due process.
"It would be difficult to overstate the importance of the testimony," defense attorneys said in their brief. "Through this evidence the defense can exclude Moussaoui from participation in and knowledge of the September 11 attacks."
According to Moussaoui's attorneys, the detainees' testimony would show Moussaoui "was not contacted" about the September 11 plot, and that al Qaeda leaders sought to "distance" him from the chosen hijackers and found him unreliable.
One top operative in Southeast Asia who provided a pretrial deposition called him "cuckoo."
Even with the "limited and insignificant role" defense attorneys say Moussaoui might have had in the terror conspiracy, prosecutors note Moussaoui could still be convicted "even if al Qaeda never intended to put defendant on a plane."
Moussaoui said in pretrial hearings that he intended to participate in an unspecified post-September 11 plot against American interests outside the United States.
As in the June hearing, only the first part of the appeals court arguments will be open to the public. Each side is scheduled to have a half-hour to argue the constitutional issues.
Unlike the June session, Moussaoui, who will not be present in court, will not be listening via a telephone hookup.
A closed-door session in the afternoon will discuss the classified evidence involved.
There is timetable for the appeals court to issue a decision; last time the panel issued a ruling in three weeks.
Brinkema has tentatively scheduled the Moussaoui trial to begin with jury selection 90 days after the appeals court decision if her sanctions are upheld, or 180 days later if the appeals court reinstates the death penalty option.
Moussaoui, a French citizen of Moroccan heritage, was arrested initially on an immigration violation in August 2001 after he aroused suspicion at a Minnesota flight school where he sought jetliner simulator training, though he lacked a pilot's license.
Prosecutors contend that Moussaoui's actions after his arrival in the United States in February 2001 mirrored those of the September 11 hijackers and that he aspired to fly a passenger jet into the White House.
The same court-appointed attorneys who argue on Moussaoui's behalf in Richmond are again Moussaoui's trial defense team.
Brinkema stripped Moussaoui of his right to represent himself last month after he continued to file redundant and disrespectful motions -- even calling the judge a "bitch" -- despite her warnings to stop. (Full story)
Moussaoui appealed Brinkema's ruling.