The U.S. Supreme Court yesterday declined to enter the protracted battle over whether Zacarias Moussaoui can interview top al Qaeda witnesses, clearing the way for the only U.S. trial stemming from the Sept. 11, 2001, attacks to begin as early as this fall.
Without comment, the justices refused Moussaoui's request to review a lower court ruling that denied Moussaoui access to the captives but said he could present to the jury portions of what they told government interrogators. Moussaoui believes that the witnesses have information that could help his defense.
Zacarias Moussaoui is charged with conspiring with al Qaeda in the terrorist attacks of Sept. 11, 2001.
The denial of Moussaoui's petition hands the government a victory in a debate that has stalled the case for more than two years. The dispute -- pitting the government's national security interests against a defendant's constitutional rights -- has centered on whether Moussaoui can be executed when he has been denied witnesses essential to his defense.
A federal judge ordered the Justice Department to produce the al Qaeda witnesses. The department refused, and the judge punished the government by striking all Sept. 11 evidence from the case and barring prosecutors from seeking the death penalty. A federal appeals court restored the death penalty and the Sept. 11 evidence. The Supreme Court yesterday did not rule on the merits of that decision but left it undisturbed.
Bryan Sierra, a Justice Department spokesman, said the government was pleased with yesterday's Supreme Court action, which he said "once again affirms our belief that the government can provide Zacarias Moussaoui with a fair trial while still protecting national security interests." Attorneys for Moussaoui declined to comment.
Some potential hurdles remain before Moussaoui becomes the first person tried criminally in the United States in the attacks on the World Trade Center and Pentagon. The process of deciding which witness statements to show jurors will be complicated. And U.S. District Judge Leonie M. Brinkema in Alexandria has indicated that she plans to delve more deeply into the secretive process of interrogating the witnesses, who include some of the highest-level al Qaeda figures captured in the war on terrorism.
In a December order, Brinkema said she would require "the appropriate governmental authorities" to explain "the conditions under which statements of those witnesses were made." She called that process, which will now begin, "intense work.''
Moussaoui's attorneys could ask the high court to reconsider yesterday's denial. But sources familiar with the case said they are unlikely to do so -- and legal experts said such requests are rarely granted. "It is exceptionally unlikely that would happen here,'' said Carl Tobias, a law professor at the University of Richmond.
Stephen Saltzburg, a George Washington University law professor, said that if Brinkema rules against prosecutors on any other major evidentiary issues, they probably will appeal again and further delay the trial. "Every time it looks like we're going forward, we wind up back in the appeals court," he said.
But Salzburg added that he thinks the case is now most likely headed toward a trial of Moussaoui, who has been in jail since August 2001. "I would guess the court is going to feel an obligation to move forward,'' he said.
Law enforcement sources said prosecutors will file a motion in federal court in Alexandria, possibly as early as today, that probably will call for a fall trial date. Brinkema has indicated that she would not set a trial date for at least 180 days after Supreme Court action, so the earliest a trial could begin would be late September.
Moussaoui, a French citizen, was charged in December 2001 with conspiring with al Qaeda in the Sept. 11 attacks.
The witness-access debate arose from a series of rulings by Brinkema starting in January 2003. She 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.
Prosecutors strongly objected and refused to produce the witnesses on national security grounds. Brinkema responded by striking the death penalty and the Sept. 11 evidence. Government appeals to the Richmond-based U.S. Court of Appeals for the 4th Circuit produced decisions that overturned Brinkema and said Moussaoui could not interview the captives.
The 4th Circuit ordered Brinkema to craft versions of statements made by the witnesses to government interrogators, known as substitutions, to present to the jury. That process will now begin.
Staff writer Charles Lane contributed to this report.