Another hurdle cleared in Moussaoui case
Defense, prosecution ordered to compromise
From Kelli Arena and Phil Hirschkorn
CNN Washington Bureau
WASHINGTON (CNN) -- A federal appeals court Monday removed one of the remaining procedural obstacles to a trial for Zacarias Moussaoui, the only person charged in the United States in connection to the September 11, 2001, attacks.
The 4th U.S. Circuit Court of Appeals in Richmond ordered the Moussaoui case sent back to trial court so that prosecutors and defense attorneys can work out a compromise on how to grant Moussaoui access to information supplied by al Qaeda captives that he says would help absolve him of the most serious charges against him.
Moussaoui's desire to call the three men as defense witnesses has stalled the case for more than a year and a half.
They are:
Khalid Shaikh Mohamed -- the alleged architect of the September 11 hijacking plot Ramzi Binalshibh -- one of its alleged coordinatorsMustafa al-Hawsawi -- one of its alleged financiersAll three are all in U.S. military custody in secret locations outside the United States, and the government argues that interrupting their interrogations could interfere with efforts to obtain actionable intelligence to prevent future terrorists attacks.
The defense maintains that the three can support Moussaoui's contention that he had neither a planning nor participatory role in the plot before he was arrested for overstaying his visa in August 2001.
For the second time, the appeals court agreed, saying in its ruling, "The enemy combatant witnesses could provide material, favorable testimony on Moussaoui's behalf."
The appeals panel rejected the need for defense attorneys to directly question the combatants, which the government has opposed on national security grounds.
But the court also determined the "government's proposed [written] substitutions for witness deposition testimony are inadequate," as the judge overseeing the case ruled last year, and the appeals court previously ruled in April.
The ruling means U.S. District Judge Leonie Brinkema in Alexandria, working with both the prosecution and the defense, must now fashion new summaries of detainee statements to interrogators that a jury might read.
Defense lawyers will be able to submit their own written questions to the detainees.
After the appeals court issued a similar order earlier this year, Moussaoui's attorneys asked the court to take another look at whether the government should be permitted to pursue the death penalty and present evidence of the multiple hijackings and crashes that killed nearly 3,000 people in New York, Virginia, and Pennsylvania.
The court decided the government could.
Four of the six conspiracy counts in Moussaoui's December 2001 indictment are death penalty-eligible.
Moussaoui's admissions in court
Much of what it considered in the appeal remains classified. But according to sources familiar with the case, Moussaoui's lawyers argued the prosecution had access to some interrogation reports of some top al Qaeda leaders in U.S. custody -- access the defense did not have -- thus giving prosecutors an unfair advantage.
The appeals panel ruled the case was not prejudiced and stood by its earlier ruling.
In a written statement, Attorney General John Ashcroft said, "We are pleased with today's 4th Circuit ruling, which once again affirms our belief that the government can provide Zacarias Moussaoui with a fair trial while still protecting national security interests. Today's ruling reiterating the 4th Circuit's conclusions and unanimously denying Moussaoui's request for rehearing by the full court puts the Moussaoui prosecution back on track."
No trial date was set, nor is it expected before next year.
Moussaoui's team of court-appointed attorneys said they are studying the latest ruling and considering all options, including an appeal to the Supreme Court.
Moussaoui, 36, a French national of Moroccan descent, 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.
The FBI initially questioned and detained Moussaoui after he aroused suspicion at a Minnesota flight school when he arrived for 747 simulator training without possessing a pilot's license.
Moussaoui has fiercely denied being involved in the September11 plot, and prosecutors' theory of his role has shifted from being a possible 20th hijacker that day to possibly piloting a fifth hijacked jetliner targeting the White House.
