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Judge blasts government secrecy

Moussaoui judge grants 9/11 families access to documents

From Phil Hirschkorn
CNN

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Judge Leonie Brinkema granted 9/11 families access to documents used in the Zacarias Moussaoui case.

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ALEXANDRIA, Virginia (CNN) -- The judge in the Zacarias Moussaoui trial ruled Friday that families of September 11 attack victims are entitled to the same unclassified aviation security documents the government turned over to the al Qaeda conspirator's defense team.

"I've always been troubled to the extent which our government keeps things secret from the American people," U.S. District Judge Leonie Brinkema said, granting the families' request after a hearing.

"It is amazing what some agencies think is secret," Brinkema added. "As a culture, we need to be careful not to be so wrapped up in secrecy that we lose track of our core values and laws."

Her order, issued over the objection of government lawyers, allows attorneys for 9/11 families to obtain copies of documents related to pre-September 11 aviation security once the Moussaoui trial ends.

The cache has thousands of pages, well beyond the documents introduced as evidence to the Moussaoui jury.

Brinkema's order followed a hearing requested by 9/11 families, whose 2002 wrongful death and negligence lawsuit is making its way through a federal court in New York.

"Isn't it somewhat ironic that the families of 3,000 people killed can't see what the person who participated in the killing can?" plaintiffs' attorney Ron Motley said outside court. "We're just asking to see what Moussaoui's guys saw, that's all."

Motley, from South Carolina, and New York attorney Marc Moller successfully argued the motion for the team of 9/11 plaintiffs' attorneys.

The four planes hijacked in the attacks had 246 passengers and crew members aboard.

Around 90 families sued American and United airlines, which each lost two passenger jets in the crashes into the World Trade Center, the Pentagon and a field near Shanksville, Pennsylvania.

Some families have reached settlements, but about 65 plaintiffs remain.

One of them is Mike Low, who testified Thursday about how the loss of his daughter, Sara, a flight attendant on the first plane to hit the trade center, has affected his family.

The families who sued opted out of the $7 billion victims' compensation fund established by the federal government and joined by 98 percent of the eligible 9/11 relatives.

The families' attorneys argued a federal crime victims act and the legislation creating the 9/11 fund entitle them to the documents.

"We are not here to be disruptive," Moller said. "We're here to vindicate what we believe Congress has empowered our clients to do."

Congress gave 9/11 families rights

Brinkema agreed, saying, "I would think what Congress had in mind, when they passed this legislation, was concern that these people have a right to pursue their rights as victims to see whether there was sufficient negligence or culpability."

The families' request was triggered by the revelation early in the Moussaoui trial that Transportation Security Administration lawyer Carla Martin had improperly coached TSA witnesses once the trial began.

According to testimony and court documents, Martin used e-mail to send them transcripts and commentary despite a court order shielding witnesses from the proceedings.

Martin's e-mail chain also revealed she had been communicating with airline attorneys. The 9/11 families questioned the ties between the airlines and the agency.

Motley told Brinkema that TSA officials "try to throw a wet blanket over everything." Brinkema said she suspected the TSA has been overly cautious.

"It's quite extraordinary that the TSA has a tougher policy on discovery than the CIA, the FBI and the NSA," she said. "What puts the TSA in a higher category to own information than these agencies?"

Motley told the judge: "I know the TSA believes they are the CIA, but they are not."

Court-appointed Moussaoui defense attorney Edward MacMahon bristled at potentially being "a discovery vehicle for civil plaintiffs somewhere," while Moussaoui prosecutor Robert Spencer said he worried Brinkema was taking a "broad leap" to grant plaintiffs access to information disclosed in criminal cases.

Government lawyer Beth Goldman said the TSA has valid concerns about "inadvertent" disclosures that could fall into terrorists' hands.

Brinkema's order puts the burden on the government to turn over unclassified aviation security documents that already have been separated into classified and unclassified piles for the Moussaoui case.

The process won't begin until the Moussaoui jury returns its death penalty verdict.

"I don't see what the harm or difficulty or danger is for the government," the judge said. "I frankly cannot see what the problem, other than logistics, would be."

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