U.S. Seeks Dismissal of Moussaoui Case to Allow Appeal

Federal prosecutors urged a judge to dismiss the case against accused Sept. 11 conspirator Zacarias Moussaoui so the government can appeal her order to make three Al Qaeda captives available for questioning.

In court documents released Thursday, prosecutors repeated their arguments that national security concerns prevented them from allowing Moussaoui access to the senior Al Qaeda operatives.

Responding to a request by U.S. District Judge Leonie Brinkema for suggestions on what sanctions to impose on the government for its refusal to give access to the detainees, the prosecutors said Brinkema should dismiss the indictment against Moussaoui to allow them to appeal the ruling to a higher court.

Two of the prisoners -- alleged Sept. 11 mastermind Khalid Shaikh Mohammed and a suspected key planner of the attacks, Ramzi Binalshibh -- were among Osama bin Laden’s top operatives. The third is Mustafa Ahmed al-Hawsawi, a suspected paymaster for Al Qaeda.

“The United States maintains that the defendant does not have a right to compel the production of ... enemy combatants detained abroad,” prosecutors wrote, noting that questioning of the detainees would “entail the disclosure of classified information” that would damage national security.

Moussaoui, a Frenchman of Moroccan descent who was being held on immigration charges when the attacks occurred, is the only person charged in the Sept. 11 terrorist attacks. He faces the death penalty if convicted on conspiracy charges.

Because the government refused to comply with Brinkema’s orders allowing Moussaoui to question the Al Qaeda captives via a satellite hookup, the judge must now impose sanctions and has requested input from the government, Moussaoui and his stand-by lawyers.

The captives are being held at undisclosed locations outside the United States.

Even if the case were dismissed, Moussaoui would not go free because the government will appeal to the U.S. Court of Appeals in Richmond, Va.

If the government were to lose its appeal, it could decide to try him before a military tribunal, which would give Moussaoui fewer protections.

Moussaoui’s defense team, representing his interests while he serves as his own lawyer, said in a motion released Wednesday that the case should be dismissed.

In a statement, the Justice Department said, “We believe the Constitution does not require, and national security will not permit, the government to allow Moussaoui, an avowed terrorist, to have direct access to his terrorist confederates who have been detained abroad as enemy combatants in the midst of a war.”

Moussaoui says the men can prove he was not involved in the Sept. 11 attacks. While denying any involvement in the attacks, Moussaoui has admitted being a member of Al Qaeda, the terrorist network the United States says was behind them.

Brinkema could issue a ruling next week, after a Monday deadline for Moussaoui to submit his recommended sanctions against the government.

While dismissal is the most severe possible sanction, the judge could take lesser action, including barring the government from seeking the death penalty.