Attorneys for Zacarias Moussaoui yesterday asked the U.S. Supreme Court to bar the government from seeking the death penalty and from presenting evidence related to the Sept. 11, 2001, terrorist attacks at his trial.
The filing marked the latest escalation in the long-standing dispute over whether Moussaoui -- the only person charged in an American courtroom in the attacks -- can interview key al Qaeda witnesses he says can help his defense. The impasse has delayed Moussaoui's trial for nearly two years.
Moussaoui's attorneys are asking the Supreme Court to overturn an appellate court ruling that restored the death penalty and Sept. 11 evidence to the case. A federal judge in Alexandria had struck both as punishment for the government's refusal to turn over the witnesses, who include some of the highest-ranking al Qaeda captives caught in the war on terrorism.
The Moussaoui brief is classified and was filed with a court security officer yesterday in the basement of the federal courthouse in Alexandria before being sent to the Supreme Court. Sources familiar with the document described its contents to The Washington Post and provided one declassified page that summarized the arguments.
The level of secrecy, which lawyers said is rare in a Supreme Court filing, is indicative of the sensitivity of the case and helps explain why it still has not come to trial more than three years after Moussaoui was charged with conspiring with al Qaeda in the Sept. 11 attacks. The witness access dispute has pitted the government's national security needs against a defendant's constitutional rights.
Prosecutors declined to comment on yesterday's filing. Federal public defender Frank W. Dunham Jr., one of Moussaoui's lawyers, confirmed that the brief was filed but would not comment further.
Supreme Court spokeswoman Kathy Arberg confirmed that the brief was filed and said a redacted copy would be released after a security review.
Legal experts split yesterday on whether the high court, which rarely takes appeals before a case comes to trial, would make an exception for Moussaoui.
"There is almost zero chance they will take it," said Stephen Saltzburg, a law professor at George Washington University. He pointed out that much of the dispute has centered on whether Moussaoui can be executed when he has been denied access to the witnesses.
If a jury chooses to spare Moussaoui's life, Saltzburg said, "it may well be that these issues disappear. . . . Courts do not like deciding things unnecessarily."
But Paul Rothstein, a law professor at Georgetown University Law Center, said he rates the chances of Supreme Court intervention at 50 percent. In other recent cases, he said, the justices have "expressed an interest in trying to define how we're going to proceed in the war on terrorism."
The witness access issue arose from a series of rulings by U.S. District Judge Leonie M. Brinkema in Alexandria. 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 on national security grounds and refused to produce the witnesses. Brinkema responded by striking the death penalty and Sept. 11 evidence. Government appeals to the Richmond-based U.S. Court of Appeals for the 4th Circuit produced a series of decisions that overturned Brinkema and said Moussaoui could not interview the captives.
The 4th Circuit ordered Brinkema to craft alternative versions of statements made by the witnesses to government interrogators, known as substitutions, to present to the jury.
In their brief yesterday, Moussaoui's attorneys said that would require him to rely on "unsworn, incomplete, non-verbatim accounts of what Government agents say those defense witnesses have said."
Sources said the brief tries to overcome the obstacles to Supreme Court review by arguing that it would cause the United States international embarrassment to put Moussaoui on trial while denying his constitutional rights.