In Moussaoui Case, U.S. Appeals 9/11 Ruling

Trying to avoid a military tribunal for Al Qaeda defendant Zacarias Moussaoui, the Justice Department on Tuesday requested an expedited appeal to salvage a civilian prosecution hobbled by a trial judge.

U.S. Atty. Paul McNulty asked the U.S. 4th Circuit Court of Appeals, in Richmond, Va., to schedule oral arguments the week of Dec. 2. Moussaoui is the only U.S. defendant indicted as a conspirator in the Sept. 11 attacks, although he’s also accused of participating in a broader Al Qaeda conspiracy against the United States.

Last week, U.S. District Judge Leonie Brinkema barred prosecutors from seeking the death penalty and banned “any evidence or argument that the defendant was involved in, or had knowledge of, the planning or execution of the attacks of Sept. 11, 2001.”

McNulty said after the ruling that restoring the government’s Sept. 11 evidence against Moussaoui was essential, leaving the possibility of moving the trial to a military court if the government was unsuccessful in winning restoration of its evidence on appeal.

Brinkema had banned the evidence after the government defied her orders to make three Al Qaeda prisoners available for questioning by Moussaoui. Brinkema had concluded that Moussaoui had the constitutional right to question captives who might back his claim that he was not a conspirator in the suicide hijackings.

This is the second time the government has appealed the witness-access question. Prosecutors contend that anything the captives say could reveal classified information, and they argue that courts have no right to interfere with interrogation of wartime prisoners.

The Richmond court dismissed the government’s first appeal, which challenged Brinkema’s order to make available the Sept. 11 organizer, Ramzi Binalshibh. The dismissal was technical, however, with the court ruling that it would not intervene until Brinkema imposed her sanctions for the government’s defiance.

Since that dismissal, Brinkema has not only handed down her sanctions but also authorized Moussaoui to question two additional prisoners: Khalid Shaikh Mohammed, the mastermind of the attacks, and Mustafa Ahmed al-Hawsawi, a suspected paymaster for Al Qaeda.

In the motion seeking an expedited appeal, McNulty said: “Because the government refused to allow access to two additional enemy combatants during proceedings after the previous appeal, the issues presented now have to be considered in the context of three rather than one ... witness.”