Moussaoui appeals 9/11 evidence ruling
Defense wants full court to revisit three-judge decision
From Phil Hirschkorn
CNN
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(CNN) -- Zacarias Moussaoui's attorneys are asking a federal appeals court to reconsider whether the government can pursue the death penalty and present evidence of the 9/11 attacks in the terrorism conspiracy case against him.
In a motion filed Thursday and unsealed Friday, the defense asked the entire 4th U.S. Circuit Court of Appeals in Richmond, Virginia, to reconsider parts of a ruling last month by a three-judge panel. That ruling lifted sanctions imposed by the trial judge on prosecutors after they refused to produce witnesses for Moussaoui.
The Frenchman of Moroccan descent is the only person publicly charged in the United States in connection with the attacks that killed nearly 3,000 people.
The April 22 appellate opinion supported the government's national security concerns over providing access to certain suspected al Qaeda captives who might provide exculpatory testimony for Moussaoui.
After the government notified the trial judge, U.S. District Judge Leonie Brinkema, that three detainees wouldn't be allowed to testify, she ruled that Moussaoui's right to a fair trial hinges on interviewing the captives, and that the government can't connect the defendant to the September 11 attacks unless it lets him interview them.
Brinkema also barred the government from seeking the death penalty against Moussaoui.
The three captives -- Khalid Shaikh Mohammed, suspected architect of the 9/11 plot; Ramzi Binalshibh, an alleged hijacking coordinator based in Germany; and Mustafa Ahmed al-Hawsawi, a suspected financier from the United Arab Emirates -- could support Moussaoui's assertion that he had neither helped plan nor participated in the coordinated hijacking attacks, the judges have said.
The captives are in U.S. military custody in secret locations outside the United States, and the government argues that an interruption could interfere with interrogations.
The appeals panel recognized the potential value of the captives' information and Moussaoui's right to present it to a jury, but rejected the need for direct questioning or videotaping such a session, as Brinkema had ordered.
Instead, the panel ordered the parties to work together to compose written summaries of interrogation notes, including statements from the captives whenever possible.
Moussaoui's team of court-appointed attorneys said the compromise is ultimately unfair, denying them an opportunity to interact with or cross-examine the witnesses.
"We don't think that the process that the court has come up with will protect Moussaoui's Eighth Amendment rights," said defense attorney Edward MacMahon, referring to the amendment that prohibits "cruel and unusual punishments."
"When the government elects not to produce evidence, then the government is restricting the defendant's ability to defend himself," MacMahon said. "When the government restricts someone from preparing a defense, they should not be allowed to ask for the death penalty."
Four of the six conspiracy counts in Moussaoui's December 2001 indictment are death penalty-eligible.
The government will not appeal any part of the latest Moussaoui appeals court decision, said Sam Dibley of the U.S. attorney's office in Alexandria, Virginia, which is leading the prosecution team.
The defense filing for a rehearing before the full appeals court is one step shy of petitioning the U.S. Supreme Court for a hearing.
The standoff over the al Qaeda witnesses has indefinitely delayed the Moussaoui trial.
Moussaoui, 36, has admitted in open court that he belonged to al Qaeda, the radical Islamic group behind the September 11 attacks, and swore allegiance to its leader, Saudi exile Osama bin Laden.
But Moussaoui has fiercely denied being involved in the 9/11 plot.
The FBI arrested him in August 2001 after he aroused suspicion at a Minnesota flight school when he arrived for 747 simulator training.
His interrogation was brief, and the government has contended that Moussaoui should be subject to capital punishment, even for withholding information about the September 11 attacks.
Prosecutors' theory of his role has shifted from being a possible 20th hijacker that day to a possible pilot of a fifth hijacked jetliner targeting the White House.
When Attorney General John Ashcroft told Brinkema in October that the government refused to make the sought-after defense witnesses available, the judge struck the death penalty and barred evidence such as cockpit voice recordings, video of the collapsing twin towers of the World Trade Center and photographs of the victims.
The appeals court said such evidence could be admitted at trial, as long as adequate written substitutions for the witness testimony was provided to the jury.
No new trial has been set.
In addition to Mohammed, Binalshibh and al-Hawsawi, Moussaoui has a pending request for access to Hambali, the alleged leader of al Qaeda's Southeast Asia wing, captured last year in Thailand.
