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Court Denies Moussaoui Access to Alleged Al Qaeda Figures

The Sept. 11 suspect sought to question men in U.S. custody as possible witnesses. Rejection of appeal puts his trial back on track.

March 22, 2005|James Gerstenzang | Times Staff Writer

WASHINGTON — The Supreme Court on Monday rebuffed an effort by accused terrorist Zacarias Moussaoui to question three alleged Al Qaeda members as potential witnesses in his trial in connection with the Sept. 11 attacks.

As a result his trial, delayed by appeals, appeared to be back on track. U.S. District Judge Leonie M. Brinkema had said that Moussaoui's trial could begin no sooner than 180 days after final Supreme Court action, meaning that it could open in late September.

Moussaoui, the only person charged in connection with the Sept. 11 attacks, has denied being part of the terrorist plot. If convicted, he could be executed.

The Justice Department said it would move quickly to propose a trial date. A spokesman said the court's rejection of the appeal "affirms our belief that the government can provide Zacarias Moussaoui with a fair trial while still protecting national security interests."

Moussaoui's lawyer, Frank W. Dunham Jr., said he would not comment on the high court's action.

Moussaoui has argued that to prove his innocence, he needs access to three prisoners in U.S. custody who are alleged to be members of Al Qaeda. U.S. officials have refused to make the prisoners available, saying that they continue to be intelligence assets and that any questioning would compromise national security.

The prisoners have not been identified in court documents. But they are believed to include Khalid Shaikh Mohammed and Ramzi Binalshibh, who are suspected of planning the attacks.

The Supreme Court rejected Moussaoui's appeal without comment.

Citing national security concerns, a lower court had ruled that Moussaoui and his lawyers could not interview the potential witnesses. Instead, they would be given government-prepared summaries of the captives' statements.

His lawyers challenged the argument that Moussaoui's ability to defend himself would not be harmed by having to rely on a government agent's account of the statements and by his inability to directly question the potential witnesses.

They argued that this forced reliance on the summaries "from unnamed, unsworn government agents purporting to report unsworn, incomplete non-verbatim accounts" of witness statements was a violation of Moussaoui's 6th Amendment right to a fair trial.

Relying on the summaries, Moussaoui's lawyers argued, would be sufficient only if there were no dispute over what the witnesses had said -- a dispute that cannot be resolved without access to the witnesses themselves.

The Bush administration argued that a review by the Supreme Court was premature because government attorneys were still preparing the summaries. It said that the points raised in the appeal over access to the witnesses, and a challenge to the death penalty, were more appropriately addressed after the trial.

Moussaoui, a French citizen, was arrested a month before the Sept. 11 attacks. A flight instructor in Minnesota alerted the FBI to what appeared to be suspicious behavior by Moussaoui, a flight student. In federal custody when the attacks occurred, he was charged as details of the terrorist plot unfolded in the following weeks.

Brinkema, the trial judge, originally said that Moussaoui could question the witnesses by video.

The government lawyers opposed this, citing national security concerns. The judge responded by barring the death penalty in the case.

Last April, the U.S. 4th Circuit Court of Appeals in Richmond, Va., ordered Brinkema to find a compromise that would allow Moussaoui to use written summaries of information obtained from other suspected terrorists in his search for testimony that might exonerate him.

The appeals court said it would have been wrong for the government to seek the death penalty without allowing Moussaoui to use any legitimate means to defend himself, including information from other terrorist suspects that he was not part of the conspiracy that led to the attacks.

But, the judges also said, too much was at stake to permit Moussaoui and his lawyers to interrupt U.S. government interrogations by allowing suspects to meet with him or his lawyers. And, having established a course in which Moussaoui could use the potential witnesses' statements, the panel reinstated the possibility of putting Moussaoui to death.

In September, the appeals court amended the April ruling and indicated Moussaoui might have a right to submit written questions to the prisoners. However, the court's order was heavily censored and its details were unclear.

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