Appeals Court Seeking a Compromise in Moussaoui Case

A federal appeals court has asked prosecutors and defense attorneys for a compromise in the case of alleged terrorist Zacarias Moussaoui that would allow him access to classified information in preparation for his trial -- a sign that the courts may believe he should be prosecuted in an open trial rather than before a military tribunal.

The order from the U.S. 4th Circuit Court of Appeals in Richmond, Va., issued Monday and released Tuesday, directs the two sides to come up with proposals for how best to assure a fair trial for Moussaoui, who the government contends was working in tandem with Al Qaeda and the Sept. 11 terrorists.

The government has fought vigorously against releasing any classified data to Moussaoui and has blocked his efforts to meet with other terror suspects in custody and have them testify in his defense.

Federal authorities have hinted that, rather than turn over other suspects and disrupt ongoing intelligence interrogations, they might simply send Moussaoui’s case to a military tribunal overseas, perhaps at the U.S. naval base at Guantanamo Bay, Cuba.

But the federal District Court judge in Alexandria, Va., where Moussaoui is being held, had ruled earlier that his right to a fair trial would be jeopardized if he was not allowed to call witnesses who he believes can help his case.

Under Tuesday’s appellate court ruling, the two sides were directed to try to work out a compromise that would keep the case on track.

It was headed at one point toward a trial date this summer, but has stalled because of numerous pretrial skirmishes.

The government will now consider identifying alternative information to the classified data, which it would be willing to provide to Moussaoui by April 24.

The defense is to respond by May 1, and the government can then react in court filings by May 5.

U.S. District Judge Leonie Brinkema in Alexandria is scheduled to hold a closed-door hearing May 7 to discuss whether the two sides have reached an agreement.

If they have not, the appellate court will continue considering the government’s request that Moussaoui not be allowed access to any form of classified material, and whether that position impinges on his right to a fair trial.

The compromise approach was seen as a minor victory for the defense, especially since the traditionally conservative appellate court was expected by many observers to simply rule in favor of the government.

Frank Dunham Jr., the public defender who is helping to represent Moussaoui, said he was hopeful that some arrangement could be worked out. He said the defense earlier brought up the idea of using substitute information as a way to get around the release of strictly classified material.

“We did suggest they should go through this drill, and they listened to our suggestions on that point,” he said of the appellate court.

Without at least trying to reach a compromise, he added, it would be “kind of like going around the bases and not touching second. We want to go around and touch all the bases.”