Fair Trial at Issue for Moussaoui

Federal appeals judges on Wednesday sharply questioned whether terrorism defendant Zacarias Moussaoui could receive a fair trial while the government denied him testimony from Al Qaeda witnesses who he said could exonerate him.

During a hearing on the fairness and death penalty issues that have delayed trial for the Al Qaeda operative, the three-judge panel from the U.S. 4th Circuit Court of Appeals searched for a way to resolve a clash between defendants’ rights and the government’s ability to fight the war on terrorism.

With the government declaring the witnesses off-limits to the defense, Judge William Wilkins asked the same pointed question of both sides: “Is Moussaoui entitled to any remedy?”

Justice Department lawyer Paul Clement said that Moussaoui had the right to material that might exonerate him, but that national security overrode his right of access to enemy combatants held abroad who might reveal secret information.

Frank Dunham Jr., the federal public defender representing Moussaoui, said the remedy lay in the sanctions imposed by a trial judge that led to the government’s appeal.

U.S. District Judge Leonie M. Brinkema, in Alexandria, Va., banned any evidence connecting Moussaoui to the Sept. 11 attacks and barred prosecutors from seeking the death penalty.

“Our system of American justice and fair play will not permit” the U.S. to seek Moussaoui’s execution while denying him favorable testimony, Dunham said.

Although Moussaoui was the only U.S. defendant charged with terrorism related to Sept. 11, Dunham said that even “for a most notorious enemy charged with the worst crime in American history, we will not bend the rules for our convenience even at the expense of our security.”

“This is America, and in the end, this is more about who we are than it is about Mr. Moussaoui,” he added.