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U.S. seeks to keep evidence from 9/11 families

Prosecutors ask Moussaoui judge to reconsider order

From Phil Hirschkorn
Judge Leonie Brinkema granted 9/11 families access to documents used in the Zacarias Moussaoui case.


Should 9/11 families suing airlines have access to evidence used against Zacarias Moussaoui?
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Transportation Security Administration
Zacarias Moussaoui
September 11 attacks
Air Transportation

ALEXANDRIA, Virginia (CNN) -- Prosecutors asked a judge to rethink granting 9/11 families suing airlines access to evidence gathered for the criminal case against al Qaeda terrorist Zacarias Moussaoui.

U.S. District Judge Leonie Brinkema's April 7 order requires prosecutors to provide copies of all unclassified aviation security documents to attorneys representing September 11 families in a civil lawsuit pending in New York.

Prosecutors called the order "unprecedented" and urged Brinkema to withdraw it. The motion was filed by Chuck Rosenberg, the U.S. attorney for the Eastern District of Virginia.

Brinkema's order would allow the families' attorneys access to "highly sensitive" law enforcement documents and could compromise the continuing investigation into the September 11, 2001, terrorist attacks. The inquiry is "the largest criminal investigation in our nation's history, which is still ongoing," the motion says.

"This order will likely provoke negative consequences for numerous criminal cases in the future," prosecutors said. Rosenberg requested a May 19 hearing.

American and United airlines each lost two passenger jets to al Qaeda hijackers on September 11, 2001.

Among the 65 plaintiffs in the civil case is Mike Low, whose daughter, Sara, was a flight attendant on the first plane to strike the World Trade Center. He testified as a government witness in the criminal case.

The plaintiffs sued the airlines for wrongful death in 2002, rather than accept compensation from a federal fund that gave $7 billion to families. Brinkema agreed with their attorneys that legislation creating the victims compensation fund protected the rights of nonparticipating families to bring a negligence claim.

In their motion, prosecutors argued that the aviation security documents are specially selected materials provided to a small group of attorneys cleared to handle sensitive evidence in the Moussaoui case.

"The government never contemplated this material would be disclosed more widely for use in private civil litigation," the motion says.

Ron Motley, an attorney who successfully argued for access to the documents last month, said he would reply to the government's motion next week.

"We have not asked the government to give the 9/11 victims one single thing they didn't provide to Moussaoui's lawyers," Motley said.

The order would require the government to begin turning over copies of documents two weeks after a verdict is returned in Moussaoui's trial.

The plaintiffs have struggled with the Transportation Security Administration to obtain pre-September 11 aviation security documents.

"It is amazing what some agencies think is secret," Brinkema said before issuing her order last month. "As a culture, we need to be careful not to be so wrapped up in secrecy that we lose track of our core values and laws."

The families' pursuit was triggered by the revelation early in the Moussaoui trial that TSA lawyer Carla Martin improperly coached witnesses. Martin, who had prepared aviation security documents and witnesses in the case, sent witnesses transcripts and commentary by e-mail, even though a court order required scheduled witnesses to ignore the proceedings.

Martin's e-mail chain revealed she had been communicating with airline attorneys, and the families' attorneys suspected collusion.

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