- The Washington Times - Tuesday, April 29, 2003

A federal judge in Alexandria yesterday ordered prosecutors to show terrorism suspect Zacarias Moussaoui the changed government view of his supposed role as a conspirator with the September 11 hijackers.
Moussaoui has argued that the government now views him as the fifth pilot of an attacking plane rather than the 20th hijacker. The acknowledged al Qaeda loyalist contends he was not part of the attack plan that day, as charged in an indictment.
The new government theory has not been publicly disclosed, so it was not clear whether prosecutors still believe Moussaoui was part of the September 11 plot or a planned second wave of attacks. He was arrested before the attacks after employees at a flight school became suspicious of his conduct.
U.S. District Judge Leonie Brinkema told the government that unless it could justify treating the new prosecution theory as classified, it must share the information with Moussaoui who is representing himself against terrorism conspiracy charges.
"To refuse to do so would undermine Mr. Moussaoui's ability to mount his … defense," the judge said. She will review the transcript of a Jan. 30 hearing in which the government disclosed the change but hid it from Moussaoui. He was not permitted to attend the hearing because classified information was discussed.
Moussaoui received a heavily edited version of the hearing transcript. However, he also received a version of a March 10 court opinion that included a reference to the change.
That prompted him to seek greater disclosure in a "Motion to Know How the United Satan is Lying to Murder Me By Legal Means." The government said it would seek the death penalty if Moussaoui is convicted.
Prosecutors have opposed Moussaoui's request, arguing that the indictment provides ample notice of the charges against him. Also, they say, he is not entitled to classified information or a preview of the government's case.
Judge Brinkema said the government's argument would be correct in most cases, but in this instance prosecutors voluntarily disclosed their change in the January hearing to Moussaoui's court-appointed lawyers.
While Moussaoui refuses to speak with them, the judge said that if prosecutors shared the theory with the defense team, they also have to disclose it in an unclassified form to the defendant so that he can prepare his own case.

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