Moussaoui May Get Some Inmate Access

The government’s death-penalty prosecution of Zacarias Moussaoui remains on track, although prosecutors may have to give the French national the opportunity to submit written questions to three prisoners alleged to be members of Al Qaeda to ensure a fair trial, a federal appellate court ruled Monday.

Moussaoui, the only person charged in connection with the Sept. 11 attacks, has denied being part of the terrorist plot, and his lawyers have argued that access to the prisoners is essential to proving his innocence. But U.S. officials have refused to make the prisoners available, saying that they continue to be intelligence assets and that any questioning would compromise national security.

While none of the prisoners has been identified in court documents, they are believed to include Khalid Shaikh Mohammed and Ramzi Binalshibh, who are suspected of planning the Sept. 11 attacks.

Amending an April ruling that overturned a lower court decision last year blocking consideration of the death penalty, a split three-judge panel of the U.S. 4th Circuit Court of Appeals in Richmond, Va., held that Moussaoui must be given access to Al Qaeda witness statements that might support his defense, and indicated that the prisoners might possess exculpatory evidence.

The panel also indicated that Moussaoui might have a right to submit written questions to the prisoners, although the terms of the order were obscured by heavy censorship because of national security concerns.

The new opinion followed a closed-door hearing in June that, at least in part, was apparently called after the government indicated it had failed to fully inform the court of contacts between the federal prosecution team and some of the prisoners.

While the court did not say so directly, the judges appeared to be concerned that the contacts might have given the government an unfair advantage. The majority opinion said that the bipartisan commission that investigated the Sept. 11 attacks was able to submit written questions to Al Qaeda prisoners.

The latest ruling -- which could be appealed to the U.S. Supreme Court -- advancesthe prosecution of Moussaoui. He was arrested a month before the Sept. 11 attacks, after a flight instructor in Minnesota alerted the FBI, saying he was acting suspiciously.

A lower court ruled last October that the government’s failure to produce the prisoners violated Moussaoui’s constitutional rights to a fair trial, and, as a sanction, barred the government from seeking the death penalty against him.

The appeals court, in that April opinion, indicated that the sanction was overly severe, and said that the procedures it outlined were adequate to ensure a fair trial.

In a prepared statement, U.S. Atty. Gen. John Ashcroft said he was “pleased” with the ruling. Moussaoui’s lawyers could not be reached for comment.

The soonest any trial could proceed would be in March, based on a prior order from the trial judge.

Moussaoui was charged with conspiracy after the 2001 attacks, although what his precise role might have been remains unclear.