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Court Clears Way for Moussaoui Trial

Suspect Ruled Eligible for Death Penalty, Cannot Interview al Qaeda Detainees

By Jerry Markon
Washington Post Staff Writer
Tuesday, September 14, 2004; Page A05

A federal appeals court yesterday rejected a bid by Zacarias Moussaoui that would have made him ineligible for the death penalty, clearing the way for the first U.S. trial on charges related to the Sept. 11, 2001, terrorist attacks.

The U.S. Court of Appeals for the 4th Circuit denied Moussaoui's appeal of its order that he cannot interview key al Qaeda detainees. A trial judge had barred prosecutors from seeking the death penalty and from presenting Sept. 11-related evidence as punishment for their refusal to turn over the witnesses.

Zacarias Moussaoui could ask the Supreme Court to hear the issue of his access to al Qaeda witnesses.

_____From FindLaw_____
4th Circuit Opinion (PDF)
More Legal Filings From U.S. v. Zacarias Moussaoui
_____Moussaoui Trial_____
Detainee Tells Hearing He Was Member Of Al Qaeda (The Washington Post, Aug 27, 2004)
Panel's Finding of Guilt Makes Fair Trial Harder (The Washington Post, Jul 24, 2004)
New Details Revealed on 9/11 Plans (The Washington Post, Jul 23, 2004)
_____On the Web_____
United States v. Zacarias Moussaoui

Yesterday's 2 to 1 decision by the three-judge panel in Richmond sends the case back to Alexandria for the judge to craft a compromise that allows Moussaoui to present at his trial statements made by the detainees without interviewing them.

Barring anything unforeseen, Moussaoui, who was charged nearly three years ago, is likely to go on trial in U.S. District Court in Alexandria as early as March, lawyers involved in the case and legal experts said.

"Game over. This means a spring trial,'' said Andrew McBride, a lawyer closely following the case and a former federal prosecutor in Alexandria. "It's likely this thing is going to steam forward now.''

Moussaoui could ask the U.S. Supreme Court to hear the issue of his access to al Qaeda witnesses, which for more than a year snarled the only criminal prosecution stemming from the attacks on the World Trade Center and the Pentagon. Attorneys for Moussaoui would not comment yesterday.

But legal experts said the high court rarely takes up appeals before a case goes to trial. If the court made an exception in this case, it is considered unlikely that proceedings in Alexandria would halt again in the meantime.

A Moussaoui trial could be the only chance for the government and relatives of the victims -- who are expected to testify during the death-penalty phase -- to seek legal justice for the attacks. It would feature broad legal issues pitting a defendant's constitutional rights vs. the government's ability to wage the war on terrorism.

The 4th Circuit noted the stakes in the second sentence of yesterday's 88-page opinion. "We are presented with questions of grave significance,'' the judges wrote, "questions that test the commitment of this nation to an independent judiciary, to the constitutional guarantees of a fair trial even to one accused of the most heinous of crimes, and to the protection of our citizens against additional terrorist attacks.''

Prosecutors said that yesterday's ruling showed they had struck that balance. The decision "once again affirms our belief that the government can provide Zacarias Moussaoui with a fair trial while still protecting national security interests,'' Attorney General John D. Ashcroft said in a statement. He said the ruling "puts the Moussaoui prosecution back on track, and we look forward to presenting our case to the District Court."

Yesterday's ruling for the first time allows Moussaoui to submit written questions intended for the detainees, sources familiar with the classified portions of the decision said. But the interrogation process is so secretive that Moussaoui's lawyers won't know if the questions were asked or what the answers were unless the information happens to show up later in interrogation summaries, the sources said.

A French citizen, Moussaoui was charged in December 2001 with conspiring with al Qaeda in the attacks. The witness-access issue arose from a ruling in January 2003 by U.S. District Judge Leonie M. Brinkema.

Brinkema granted a defense motion to depose a captured al Qaeda operative, Ramzi Binalshibh, the self-described planner of the attacks. Government attorneys objected, saying a deposition would interfere with a vital interrogation that could yield clues to future attacks.

Prosecutors first appealed to the 4th Circuit last year, arguing that Brinkema overstepped her authority because the judiciary could not second-guess military decisions. The 4th Circuit dismissed the initial appeal as premature but said prosecutors could appeal again if they refused to produce Binalshibh and were sanctioned by the judge.

Brinkema later ordered depositions of two more detainees, identified by sources as former al Qaeda operations chief Khalid Sheik Mohammed and Mustafa Ahmed Hawsawi, alleged paymaster to the hijackers. She said the detainees, who are being held at undisclosed locations, had information that could help Moussaoui's defense.

The government refused to produce any of the detainees, and in response Brinkema struck the death penalty and all Sept. 11-related evidence. The 4th Circuit panel overturned those sanctions in its ruling in April.

Moussaoui's attorneys then asked the entire 4th Circuit to take up the case. The full court declined, but the same three-judge panel issued yesterday's opinion. Both decisions were written by Chief Judge William W. Wilkins Jr., with the concurrence of Judge Karen Williams. Judge Roger Gregory dissented in part because he opposed making Moussaoui eligible for the death penalty.

In the majority ruling, the judges agreed with Brinkema that the detainees had evidence that could help Moussaoui and rejected the government's contention that she had no right to order the depositions. But they said the sanctions she imposed were unnecessary and again ordered her to craft alternative versions of statements made by the witnesses, known as substitutions for live testimony.

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