Prosecutors Scramble to Salvage 9/11 Case After Ruling

With Brinkema's ruling, the entire second half of their case is lost, prosecutors said. The barred witnesses are federal airline security experts who would have testified about the measures the government would have taken based on Moussaoui's information, such as putting the hijackers on no-fly lists and scouring passengers for the small-bladed knives the hijackers used.

"Without aviation, they have no chance of showing that one of those four hijacked planes could have been stopped," said Andrew McBride, a former federal prosecutor in Alexandria closely following the case. "They promised the jury two parts: The FBI gets the right information if he blows the whistle, and steps are then taken at the airports. That second piece is now gone."

Complicating the situation further, it appeared questionable yesterday whether the government has a realistic chance of persuading a higher court to overturn Brinkema's decision if she declines to reverse it. Federal law says rulings that throw out evidence or testimony can be appealed only before trial.

The government could, legal experts said, take an unusual route by asking the U.S. Court of Appeals for the 4th Circuit to issue what is known as a writ of mandamus, which would order Brinkema to restore all or part of the disputed evidence.

But experts said that even the 4th Circuit, which tends to strongly support the government on national security issues and which overturned an earlier Brinkema ruling in the Moussaoui case, would be hesitant to intervene here. "It's a very high hurdle. They have to show a clear error in the law by Brinkema," McBride said. "I don't think they have an appeal."

The legal maneuvering was another twist in the often convoluted case against Moussaoui, 37, who pleaded guilty in April. A French citizen, Moussaoui said Osama bin Laden had personally instructed him to fly an airplane into the White House, but he denied involvement in the Sept. 11 attacks. Moussaoui was first charged in December 2001, and the case has been delayed numerous times.

The latest problem emerged Monday, when prosecutors informed Brinkema that Martin had violated a court order by e-mailing trial transcripts to the seven aviation witnesses and coaching them on their testimony. Brinkema had earlier ruled that most witnesses could not attend or follow the trial and could not read transcripts.

Martin, who had been a liaison between prosecutors and the aviation witnesses, offered an extraordinary criticism of the prosecution case in her e-mails. She said the government's opening statement "has created a credibility gap that the defense can drive a truck through." And she questioned the core government argument that the Sept. 11 attacks could have been prevented by heightened security at airports.

Brinkema issued her ruling at the close of a hearing Tuesday that explored Martin's actions.

In their motion yesterday, prosecutors said the testimony of five of the witnesses at the hearing showed that they "were not the least bit affected by Ms. Martin's e-mails and comments, other than to be annoyed by them. They learned no fact from Ms. Martin that they had not already known for years."