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Moussaoui case may proceed, federal appeals court rules

By Phil Hirschkorn
CNN

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Zacarias Moussaoui

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A federal appeals court ruling may put the trial back on track for Zacarias Moussaoui, the only person charged in the United States in connection with the 9/11 terror attacks. CNN's Kelli Arena reports (April 23)
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(CNN) -- A federal appeals court ruling Thursday may put the trial back on track for Zacarias Moussaoui, the only person charged in the United States in connection with the September 11, 2001, terror attacks.

In a split decision, a three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, decided to lift a restriction and allow the government to introduce evidence of the attacks in which Moussaoui is charged as a conspirator and pursue the death penalty against him.

But the appeals court also decided that Moussaoui may obtain and introduce testimony from three al Qaeda captives the defense says would absolve him of any planning or participatory role in the multiple hijackings and crashes that killed 2,749 people in New York, Virginia and Pennsylvania.

"The enemy combatant witnesses can offer testimony that is essential to Moussaoui's defense," the court said.

The appeals court affirmed two decisions last year by U.S District Judge Leonie Brinkema granting access to captives Khalid Shaikh Mohammed, regarded as the mastermind of the September 11 attacks; Ramzi Binalshibh, an al Qaeda operative who has acknowledged participating in planning the attacks; and Mohamed al-Hawsawi, also known as Mustafa al-Hawsawi, an alleged paymaster of the 19 hijackers.

The court left it up to Brinkema -- who had ordered videotaped depositions of the captives -- to work out the method for obtaining their testimony.

Written summaries of their interrogations were originally proposed by the government but were rejected by Brinkema as misleading and incomplete.

"The conclusion of the district court that the proposed substitutions are inherently inadequate is tantamount to a declaration that there could be no adequate substitution for the witnesses' deposition testimony. We reject this conclusion," the appeals court ruled.

The panel said that the summaries "accurately recapitulate" classified intelligence reports "and provide an adequate basis for the creation of written statements that may be submitted to the jury in lieu of the witnesses' deposition testimony."

The Justice Department found the opinion "upheld the government's core position," Attorney General John Ashcroft said in a written statement.

"The government can provide Zacarias Moussaoui with a fair trial while still protecting critical national security interests," the statement read. "The government will not be required to provide Moussaoui with interactive access to detained terrorists."

The standoff over the al Qaeda witnesses has derailed the Moussaoui trial for more than a year.

Moussaoui, 35, a French national of Moroccan descent, has admitted in open court belonging to al Qaeda, the radical Islamic group behind the attacks, and swearing allegiance to its leaders.

He has fiercely denied being involved in the September 11 plot, and prosecutors' theory of his role has shifted from being a possible 20th hijacker that day to possibly piloting a fifth hijacked jetliner targeting the White House.

The legal issues have been argued twice before a three-judge panel of the court, most recently in December. (Full story)

The court ultimately supported the government's view that providing access to the witnesses could jeopardize national security, but did not accept the government's view that the witnesses were off-limits because they are foreign nationals detained by the military overseas.

"Their value as intelligence sources can hardly be overstated. And, we must defer to the government's assertion that interruption ... will have devastating effects on the ability to gather information from them," the court said.

"We emphasize that no punitive sanction is warranted here because the government has rightfully exercised its prerogative to protect national security interests by refusing to produce the witnesses," the court said.

The court also supported Moussaoui's contention that his Sixth Amendment right to call available witnesses of his choosing guaranteed him some testimony.

"I think both sides won, and both sides lost," said Alan Yamamoto, one of Moussaoui's court-appointed attorneys.

"Our win was the constitutional right of the defendant to have access to the witnesses even though they are across the sea. The government's win is that don't have to produce them, and they don't have to dismiss the case."

Yamamoto said either side had the option of seeking a rehearing by the full, 12-judge appeals court or by the Supreme Court, or broker a compromise before Judge Brinkema and proceed toward trial.

"Anything can happen at this point," he said.

CNN's Kelli Arena and Kevin Bohn contributed to this report.


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