The federal judge overseeing the trial of Zacarias Moussaoui said Friday she was "disturbed" at the volume of classified material prosecutors were withholding from the accused Sept. 11 conspirator, and indicated they may be unfairly preventing him from preparing a defense.
Moussaoui, a French citizen of Moroccan descent, faces a possible death sentence for allegedly conspiring with other Al Qaeda operatives to hijack the airplanes that crashed into the World Trade Center and the Pentagon. He is acting as his own attorney, and prosecutors have been reluctant to turn over classified information to him and a team of court-appointed legal advisors.
His trial, which was scheduled to start in June in federal court in Alexandria, Va., already has been postponed because of a dispute over his request to interview another suspect in the Sept. 11 attacks, Ramzi Binalshibh, who Moussaoui claims has information that will exonerate him.
If the government loses that battle, it is expected to transfer the case to a military tribunal where a defendant's rights, including access to witnesses, would be more limited.
On Friday, U.S. District Judge Leonie M. Brinkema ordered the government to respond by Thursday to a request by Moussaoui for complete copies of a transcript of a January hearing and subsequent court order dealing with access to Binalshibh that had been heavily edited.
The deleted material included references to the "theory of the case" prosecutors are using against Moussaoui, according to the judge's order.
"The court, too, is disturbed by the extent to which the United States' intelligence officials have classified the pleadings, orders and memorandum opinions in this case," Brinkema wrote.
The judge added that she "further agrees with the defendant's skepticism of the government's ability to prosecute this case in open court in light of the shroud of secrecy under which it seeks to proceed." The U.S. Constitution guarantees criminal defendants public trials.
Lawyers for Moussaoui and the government did not respond to phone calls for comment.
Debate over access to classified information in court proceedings comes up frequently in cases involving national security and defendants like accused spies. Procedures have been established so select portions can be used in court without revealing secrets.
Often, arrangements can be worked out between prosecutors and defense lawyers to give the latter some access to classified materials or assurances that it is not exculpatory.
"The evidentiary basis of a prosecution is going to be exposed in open court. That is non-negotiable," said Dan Richman, a professor of federal criminal law and procedure at Fordham University School of Law in New York.
"The question is how much of importance around the edges will be available to the defendant. That is an issue we have confronted for a long time."
The legal quandary is exacerbated where a defendant such as Moussaoui chooses to represent himself and "who so far as the government is concerned is a walking security risk," said Richman, a former federal prosecutor.
Moussaoui was detained in August 2001 on immigration charges after officials at a flight school near Minneapolis grew suspicious because, among other reasons, he insisted on learning to fly a Boeing 747 even though he couldn't fly solo in a single-engine Cessna after many hours of lessons.
He has denied being part of the Sept. 11 plot but has admitted being an Al Qaeda member.