A federal appeals court yesterday let stand its ruling that Zacarias Moussaoui cannot interview key al Qaeda detainees, setting up what defense lawyers have said probably would be an appeal to the Supreme Court.
The only U.S. criminal prosecution stemming from the Sept. 11, 2001, attacks is still probably headed for a spring trial, lawyers said. Legal experts have said that the high court is unlikely to hear the Moussaoui case because it rarely takes up appeals before a case goes to trial.
In its decision yesterday, the U.S. Court of Appeals for the 4th Circuit rejected Moussaoui's effort to get the full court to reconsider the decision on witness access. A three-judge panel last month refused to allow Moussaoui to interview the witnesses and reaffirmed that prosecutors can seek the death penalty and use Sept. 11-related evidence at the trial. The appeals court overturned Moussaoui's trial judge in issuing its opinion.
The witness access issue has snarled the often-delayed case for more than a year. Moussaoui's attorneys wanted access to the detainees to help the defense, but the government strongly objected on national security grounds. The 4th Circuit panel sided with the government and ordered a federal judge in Alexandria to craft alternate versions of statements made by the witnesses, known as substitutions for live testimony, to present to the jury.
Yesterday's decision will send the case back to Alexandria for that pretrial process unless there is another delay while Moussaoui's attorneys seek Supreme Court review. No trial date has been set.
Prosecutors declined to comment on yesterday's ruling. Edward B. MacMahon Jr., an attorney for Moussaoui, said defense lawyers are "studying all of our options, which could include an appeal to the Supreme Court.''
In an unrelated court filing this month, Moussaoui's attorneys indicated that they would seek Supreme Court review if the 4th Circuit rejected their petition for a rehearing of the witness access decision.
Moussaoui, a French citizen, was charged in December 2001 with conspiring with al Qaeda in the attacks. The witness access issue arose from a series of rulings by U.S. District Judge Leonie M. Brinkema.
Brinkema granted defense motions to depose captured al Qaeda operatives, including Ramzi Binalshibh, the self-described planner of the Sept. 11 attacks, and former al Qaeda operations chief Khalid Sheik Mohammed. Government attorneys objected, saying depositions would interfere with interrogations that could yield clues to future attacks.
An initial government appeal to the 4th Circuit was dismissed as premature. The government then refused to produce any of the detainees, and as punishment, Brinkema struck the death penalty and all Sept. 11-related evidence. The 4th Circuit overturned those sanctions in a series of rulings culminating in yesterday's decision.