Court Lets Moussaoui Prosecution Go Forward

The government’s prosecution of Zacarias Moussaoui was ordered back on track Thursday by a federal appeals court panel, but it ruled the French national can get a fair trial only if he is granted some access to enemy combatants now in U.S. custody.

Moussaoui has denied that he was a part of the Sept. 11 terrorist plot, as the government has charged, and his lawyers have argued that access to some of these prisoners would bolster his defense.

Moussaoui was arrested a month before the attacks after a flight instructor in Minnesota alerted the FBI about his odd behavior. But it was only after the attacks on New York and Washington that he was charged in the conspiracy.

The case, which has been languishing in federal court in the Washington suburb of Alexandria, Va., was given new life by three judges of the U.S. 4th Circuit Court of Appeals in Richmond, Va.

The appellate panel ordered the trial judge to work out some kind of compromise that allows Moussaoui to at least use written summaries of information from other suspected terrorists that might tend to exonerate him.

The judicial panel said it would be wrong for the government to seek the death penalty against Moussaoui without also allowing him to use any legitimate means to defend himself, including information from other terrorism suspects that he was not a part of the conspiracy that led to the attacks.

But at the same time, the judges said, too much is at stake in the war on terrorism to permit Moussaoui and his defense lawyers to interrupt ongoing U.S. government interrogations by permitting suspects to meet with the defense for the upcoming trial.

To that end, the appellate judges instructed the trial judge, Leonie M. Brinkema, to work out a compromise, such as permitting the defense to present portions of written summaries from others in custody about Moussaoui and let the jury decide their value.

Because the 19 airplane hijackers died that day, Moussaoui represents the only case in the federal courts that would hold any living person responsible for the Sept. 11, 2001, attacks.

In his last 2 1/2 years in jail awaiting trial, Moussaoui has alternately confessed and then withdrawn admissions of guilt.

He has pledged allegiance to Al Qaeda, but said he was being groomed for a fifth hijacking at a later date.

It is these kinds of inconsistencies that have plagued the case.

Nevertheless, the appellate judges ruled that Brinkema was correct in concluding that other captured enemy combatants “could provide material, favorable testimony on Moussaoui’s behalf.”

But the judges warned against interrupting the ongoing interrogations of the other terrorists by making them available for Moussaoui’s trial.

“The witnesses are Al Qaeda operatives,” the judges said. “Their value as intelligence sources can hardly be overstated.

“And we must defer to the government’s assertion that interruption will have devastating effects on the ability to gather information from them.”

The opinion was written by Chief Judge William W. Wilkins Jr.

One of the other panelists, Judge Roger L. Gregory, said that asking Brinkema to come up with a compromise would be a “difficult, perhaps impossible” task for her to accomplish.

But he said it was imperative if Moussaoui was to receive a fair trial, and the government is permitted to seek the death penalty if he is convicted.

“Death is different. It is the ultimate penalty, and once carried out, it is irrevocable,” Judge Gregory said, adding, “A sentence of death cannot be imposed unless the defendant has been accorded the opportunity to defend himself fully.”

Brinkema did not give any immediate indication on how she will proceed.

Atty. Gen. John Ashcroft said late Thursday that he believed the appellate panel had “upheld the government’s core position” in the case.

“The court held that the government can provide Zacarias Moussaoui with a fair trial while still protecting critical national security interests,” he said.

He noted that prosecutors would not have to make enemy combatants personally available to the defense, that the prosecution still can seek the death penalty and that evidence would be allowed indicating Moussaoui was a part of the conspiracy.

Frank W. Dunham Jr., the federal public defender representing Moussaoui, could not be reached for comment.