Government seeks reversal of order gutting Moussaoui case
Ruling could affect how terrorism suspects are prosecuted
From Phil Hirschkorn and Kelli Arena
Zacarias Moussaoui was indicted two years ago this month.
Prosecutors step up efforts to link accused terrorist Zacarias Moussaoui to the September 11 attacks. CNN's Kelli Arena reports.
RICHMOND, Virginia (CNN) -- The Justice Department argued Wednesday that Zacarias Moussaoui -- the lone defendant facing trial in connection to the September 11, 2001, terrorist attacks -- has no right to question fellow al Qaeda detainees whom he says will clear him of involvement.
The decision of the three-judge panel of the 4th Circuit U.S. Court of Appeals is bound to affect how terrorism cases are prosecuted in U.S. civilian courts.
During the oral arguments, the dispute was concisely framed by Judge Roger Gregory: "At what point is national security so great that a person can't get a fair trial."
If the Justice Department prosecution's appeal fails, the government could take Moussaoui out of the civilian justice system and place him in military custody.
Deputy Solicitor General Paul Clement argued a defendant such as Moussaoui is entitled to written summaries of what the detainees have told interrogators, but not live interaction with them in a courtroom.
Clement said the constitutional right to call available witnesses, guaranteed by the Sixth Amendment, "simply does not exist" when it involves foreign nationals captured by the military and detained in another country.
Moussaoui is seeking to call Khalid Shaikh Mohammed, the reputed architect of the September 11 plot, from Pakistan; Ramzi Binalshibh, one of the plot's admitted coordinators, from Yemen; and Mustafa al-Hawsawi, one of the alleged financiers of the 19 hijackers, from Saudi Arabia.
All three men were captured in Pakistan over the past 15 months, and the Bush administration considers them "enemy combatants" out of reach of any courts and controlled by the military commanded by the president.
Chief Judge William Wilkins asked if the power to summon a witness to court could "reach across the border under any circumstances?"
"I am sure it does," Clement said, but not in the circumstances of Moussaoui's case. "What the defendant seeks is a windfall from ... the government's war on terror."
Moussaoui, 35, was indicted two years ago this month. He faces six charges, including conspiracy to commit terrorism and conspiracy to use weapons of mass destruction. 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.
A French citizen of Moroccan heritage, Moussaoui 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.
Attorney General John Ashcroft notified the trial court that the government would not permit Mohammed, Binalshibh, and al-Hawsawi to testify.
Judge Leonie Brinkema of the U.S. District Court in Alexandria, then ruled that Moussaoui's right to a fair trial hinges on interviewing the detainees and that the government can't connect him to the September 11 attacks unless it lets him interview three al Qaeda members in U.S. custody.
She noted in her ruling that classified summaries of statements from those detainees indicate Moussaoui had no advance knowledge or planning role in the hijacking crashes at the World Trade Center, the Pentagon, and Pennsylvania that resulted in nearly 3,000 deaths.
Brinkema also barred the government from seeking the death penalty against Moussaoui.
In appeals court Wednesday, Moussaoui defense attorney Frank Dunham argued Brinkema's sanctions were correct.
"We don't think the national security issue trumps the defendant's rights to get this information that is in the possession of the Executive Branch," Dunham said.
Dunham called the attorney general the rightful "referee" of classified information and said that neither the defense nor the courts should second-guess the administration's conclusion that the detainee statements were a state secret.
"We don't get it, but we get sanctions," Dunham said. "It doesn't really matter where that witness is if there is a national security exception."
Dunham argued the Executive Branch not only had a duty to implement its war-making powers responsibility, but also to protect society's interest in fair trials.
"They would have that take a vacation from this case," Dunham said.
Dunham suggested the Bush administration was torn between the competing interests of the Defense Department, which has custody of the enemy combatants, and the Justice Department, which wants to bring the Moussaoui case to trial.
"There is a food fight going on there in the Executive Branch, I am sure," Dunham said.
The defense's main argument remained, if the detainees, controlled by the U.S. government had exculpatory information, Moussaoui should have access.
The appeals court asked if the trial court could resolve the dispute by composing written summaries of the detainees' information.
In answer to Judge Karen Williams question, "Can it only be a testimonial?" Dunham essentially said yes, because the government-proposed summaries have been deemed inadequate and incomplete by Brinkema.
"It's the defense witness we're being offered a script for. We're being denied total access," Dunham said. "They're sitting on the witnesses. They're not letting us have the favorable witnesses."
Judge Wilkins asked where the Moussaoui prosecution would be now if the trial court had acceptable substitutions for the detainees' live testimony?
"I think we'd be at trial," Clement said.
Brinkema's sanctions were less than what both sides asked for -- which was a total dismissal of the case.
"It's hard to say she abused her discretion," Dunham said.
But Clement argued the sanctions presented the government with a dangerous choice between "prosecuting terrorists acts that have been completed and preventing future terrorists acts that are being planned."
He also said prosecutors might actually want to call the detainees, if they were available, to help convict Moussaoui, and he raised the specter that after all this trouble, the detainees might not even talk, relying on the constitutional protection against self-incrimination.
"You have to consider the possibility that the co-conspirator comes into court, invokes the 5th Amendment, and the defendant is no better off," Clement said.
Either way, Dunham countered, the American system of "justice and fair play" should not allow the detainees to be muzzled.
"This is more about who we are than it is about Mr. Moussaoui," he said.
Moussaoui admits belonging to al Qaeda and swearing loyalty to its leader, Osama bin Laden.
But instead of the September 11 attacks, Moussaoui contends that he would have participated in a later attack outside the United States.
Prosecutors reject the theory that Moussaoui would have been the 20th hijacker and contend that he aspired to pilot a plane into the White House.
There is no timetable on the appeals court ruling.
Brinkema has tentatively scheduled the trial to begin 90 days afterward if her sanctions are upheld and 180 days later if the appeals court reinstates the death penalty.