U.S. Government Again Defies Judge in Moussaoui Terror Case

The Bush administration Wednesday defied a federal judge for the second time, refusing to allow terrorism defendant Zacarias Moussaoui to question senior Al Qaeda captives in preparation for his criminal trial.

U.S. District Judge Leonie Brinkema can respond by dismissing the case or exacting some lesser punishment, but the government asked her to take no action pending an appeal.

Citing national security concerns, the government said it was “exercising its right not to disclose classified information” that could be revealed by the senior Al Qaeda prisoners.

Brinkema’s options include exclusion of government evidence, barring the death penalty and dismissing some counts in the case.

Allowing the questioning “would needlessly jeopardize national security at a time of war with an enemy who has already murdered thousands of our citizens,” the government said.

“Consequently, the government cannot, consistent with the interest of national security, comply with the court’s order” of Aug. 29.

Prosecutors said they recognize the objection could lead to dismissal of the indictment, but asked Brinkema to postpone any action pending an appellate ruling. If there is a dismissal, the government could move the case to a military tribunal.

Moussaoui is the only person charged as a conspirator in the Sept. 11 attacks.

The dispute between the Bush administration and the judge has delayed a trial for Moussaoui, but the Justice Department says the stakes are high. Prosecutors warned of grave consequences if Moussaoui is allowed to interrupt interrogations of Al Qaeda captives.

Moussaoui asked to question Khalid Shaikh Mohammed -- considered the mastermind of the Sept. 11 attacks -- and Mustafa Ahmed al-Hawsawi, a suspected paymaster for Al Qaeda. Brinkema granted the motion last month, as she did with an earlier request by Moussaoui to question an alleged Al Qaeda planner of Sept. 11, Ramzi Binalshibh. The government also refused to make him available.

Brinkema concluded in the January and August rulings that Moussaoui’s constitutional right to potentially favorable witnesses outweighs the national security concerns. She ordered use of satellite communications to connect Moussaoui with the prisoners, held in undisclosed locations.

A panel of the 4th U.S. Circuit Court of Appeals, which has heard oral arguments on Moussaoui’s access to Binalshibh, said it was ready to decide the case. But the appellate judges deferred, saying the government first must disobey the order -- as it did -- and find out what sanctions Brinkema will impose.

The 6th Amendment to the Constitution normally grants defendants the right to compel the appearance of potentially favorable witnesses for pretrial questioning and to testify at trial. The government argued the amendment doesn’t apply to wartime captives held outside the United States.