Court asks for clarification in Moussaoui case
Government has said it had more detainee access than thought
From Phil Hirschkorn
CNN
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(CNN) -- An appeals court panel is asking prosecutors in the case of Zacarias Moussaoui whether government officials had broader access to top al Qaeda detainees in U.S. custody than previously understood.
If that is so, the judges want the prosecution to clarify whether Moussaoui, the only person charged in this country in connection with the terrorist attacks of September 11, 2001, should be allowed to question those witnesses in writing.
An order from a three-judge panel of the 4th U.S. Circuit Court of Appeals released Friday asks prosecutors to clarify who in the government has had access to top al Qaeda captives in U.S. custody.
At issue are the government's revelations in a letter to the court this week that prosecutors have been "privy" to the interrogation process in a more active way than previously disclosed. Instead of passive reviewers of the military's interrogation notes, prosecutors conceded they have suggested lines of inquiry for the detainees, a privilege Moussaoui has been denied.
"Members of the prosecution teams ... have provided ... information," the judges said, quoting the government's letter, which referred to FBI agents investigating September 11. "The information contained in the letter is arguably inconsistent with statements previously made to the court."
Moussaoui's defense attorneys told the court in their own letter that "a fundamental factual premise upon which the defense has been operating up until now, not only in this Court, but also in the district court, is incorrect."
Moussaoui, 36, has admitted in open court that he belonged to al Qaeda, the radical Islamic group behind the September 11 attacks, and swore allegiance to its leader, Saudi exile Osama bin Laden.
But Moussaoui has denied being involved in the September 11 plot. He contends the detainees -- Khalid Shaikh Mohammed, regarded as the architect of the plot; Ramzi Binalshibh, a suspected hijacking coordinator, based in Germany; and Mustafa Ahmed al-Hawsawi, one of the alleged financiers from the United Arab Emirates -- can support his claim that he had neither a planning nor participatory role in the multiple hijackings.
The judges have recognized the witnesses' exculpatory value but supported the government's claim that interference with their detention in secret locations outside the United States could interfere with efforts to obtain intelligence that could prevent future terrorists attacks.
"If circumstances have changed such that submission of written questions is now possible, when did the circumstances change, and why was neither this court nor the district court so informed at this time?," the judges asked the prosecutors.
"We will be addressing that order in court," Attorney General John Ashcroft told reporters Friday.
"We believe the position of the department is consistent. We welcome the opportunity through both pleadings and through the oral argument to be offered next week to make sure that the position of the department is clear."
The government's letter told the judges they may have erred in their April 22 opinion stating that "neither the parties nor the district court has ever had access to the witnesses" sought by the defense and that "no one involved in the litigation has been privy to the ... process" of their interrogation.
The government has until Wednesday to provide a more complete explanation.
After a defense reply, the appeals court will hold a closed door hearing in Richmond, Virginia, June 3 -- exactly a year after the court first heard the government's national security arguments against granting Moussaoui access to the detainees.
