Prosecutors Deny Moussaoui Access to U.S. Captive

Federal prosecutors refused Monday to allow Zacarias Moussaoui to meet with a suspected Al Qaeda leader in order to bolster his own defense, defying a court order that ultimately could hamper prosecution of the alleged 20th hijacker in the Sept. 11 terrorism plot.

The Justice Department’s refusal to comply with U.S. District Judge Leonie M. Brinkema’s order leaves her with a range of options, from sanctions that include dropping the death penalty as a possible punishment to dismissing the case altogether.

However, any response by the judge could be delayed because prosecutors are still appealing her order. The U.S. 4th Circuit Court of Appeals in Richmond, Va., already has signaled that it would move swiftly to resolve the impasse.

At issue is Moussaoui’s request to meet via teleconference with suspected Sept. 11 organizer Ramzi Binalshibh, who was captured in Pakistan and is being held by the U.S. at an undisclosed location, and take his legal deposition. Moussaoui’s lawyers expect that Binalshibh would say that Moussaoui was not part of the operation in which 19 terrorists commandeered four airplanes and flew them into landmark buildings in New York and Washington, killing about 3,000 people.

Such a declaration by Binalshibh, the judge has indicated, not only could help Moussaoui’s defense but also could ensure that he is given a fair trial.

But the government Monday went beyond arguments it has made in the past that such access to Binalshibh would hamper its own interrogation efforts.

“The deposition,” the prosecutors said in a legal filing in federal court, “which would involve an admitted and unrepentant terrorist [the defendant] questioning one of his Al Qaeda confederates, would necessarily result in the unauthorized disclosure of classified information.

“Such a scenario is unacceptable to the government.”

Prosecutors noted that not only are they responsible for trying Moussaoui, but that the government also has the burden of “protecting this nation’s security at a time of war with an enemy who had already murdered thousands of our citizens.”

Government lawyers added, “Therefore, the government cannot, consistent with the interests of national security, comply with the court’s order.”

Prosecutors conceded that their defiance “obligates the court now to dismiss the indictment unless the court finds that the interests of justice can be served in another action.”

As alternatives, prosecutors asked that the judge wait until after the appellate court rules on the matter, or set up hearings to allow prosecutors to present other options.

If the judge levies heavy sanctions against the government, or the appellate court rules against prosecutors, the Bush administration could declare Moussaoui an enemy combatant.

That would place Moussaoui in military custody until the end of the war on terrorism, or the Pentagon could direct him to stand trial in a military tribunal.

In another development, the court unsealed two handwritten legal motions by Moussaoui that, similar to other filings by the suspect, are often incoherent. Moussaoui demanded to have Richard Reid also testify in his defense. Reid pleaded guilty to attempting to blow up a transatlantic flight by igniting a bomb in his shoes.

“The government of Satan knows that Richard Reid could be our ... witness at Moussaoui trial if ever it happen[s],” Moussaoui wrote.