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High court rejects Moussaoui case

By Phil Hirschkorn

Zacarias Moussaoui
Zacarias Moussaoui
September 11 attacks
Acts of terror
Supreme Court

(CNN) -- The Supreme Court Monday rejected the appeal of Zacarias Moussaoui, the only person publicly charged in the United States in connection with the September 11, 2001, terrorist attacks.

The high court ruling paves the way for Moussaoui to stand trial. While a Justice Department spokesman said prosecutors would propose a date as soon as Tuesday, a trial is likely not to begin before this September.

Moussaoui, an admitted member of al Qaeda, the Muslim terrorist group linked to the September 11 attacks, had asked the court to rule on whether his right to a fair trial hinges on obtaining testimony from other al Qaeda detainees who, he believes, would exonerate him.

The trial, originally scheduled for September 2002, had been delayed as the dispute over witness access moved through the courts.

Moussaoui is facing the death penalty in a six-count federal indictment obtained three months after 19 hijackers commandeered four jetliners and crashed them into the twin towers of the World Trade Center, the Pentagon, and a field near Shanksville, Pennsylvania, killing 2,973 people, not counting themselves.

Four of the counts are death-eligible conspiracies.

Moussaoui, 36, a French citizen of Moroccan heritage, was arrested a month before September 11 after arousing suspicion at a Minnesota flight school. He maintains that he had no involvement or advance knowledge of the terrorist plot.

The government contends that Moussaoui's actions, from attending an al Qaeda paramilitary camp in Afghanistan to flight schools in the United States, mimicked the hijackers and that he received money from the same operatives.

Case returns to federal court

Moussaoui's trial is stalled in a dispute over access to key detainees in custody -- Khalid Shaikh Mohammed, the architect of the attacks, Ramzi Binalshibh, a coordinator of the plot, and Mustafa al-Hawsawi, a financier of the hijackers.

The government considers these military prisoners, which it holds in undisclosed locations in other countries, "enemy combatants" out of reach of the U.S. courts.

In what it calls an effort to both preserve its prosecution and protect national security, the government offered the trial court written summaries of the detainees' interrogations.

U.S. District Court Judge Leonia Brinkema, who presides over the case in Alexandria, Virginia, deemed those substitutions inadequate, but a federal appeals court in Richmond last year instructed the parties to reconsider them.

The appeals court ordered the government to allow defense attorneys to submit questions to the detainees and share in the composition of new summaries.

The attorneys argued that any substitute for live testimony would disadvantage Moussaoui.

Moussaoui's attorneys say the standoff puts three Constitutional amendments in play, chiefly the Sixth Amendment right of a defendant to call available witnesses to testify.

They contend the Fifth Amendment right of due process and the Eighth Amendment prohibition of cruel and unusual punishment mean that a defendant facing the death penalty, as is Moussaoui, must be allowed to obtain all exculpatory information in the government's possession.

In 2003, Brinkema ordered videotaped depositions of Binalshibh, Mohammed, and al-Hawsawi, but the government refused to make the men available.

Consequently, Brinkema barred evidence of September 11 from the case and said the prosecution could not seek the death penalty. That order was reversed on appeal.

"Captured al Qaeda members represent one of the most important opportunities this nation has for uncovering vital information about al Qaeda's assets and plans," the solicitor general told the Supreme Court in its brief last month. "Permitting the defense to have direct access to the captured enemy combatants would cause the United States irreparable harm in the war against al Qaeda."

Both lower courts found the al Qaeda witnesses could provide relevant, favorable testimony for Moussaoui. The government maintains they would help convict him.

CNN's Bill Mears contributed to this report.

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