- The Washington Times - Wednesday, December 3, 2003

RICHMOND (AP) — Federal appeals court judges yesterday questioned whether Zacarias Moussaoui can get a fair trial if the U.S. government blocks him from questioning three al Qaeda figures he contends can prove his innocence in the September 11 attacks.

The government argued in the 4th U.S. Circuit Court of Appeals that Moussaoui cannot profit from the fact that the United States captured the three al Qaeda members.

“What the defendant seeks is sort of a windfall from the … government’s war on terrorism,” said Paul Clement, the U.S. deputy solicitor general.

The judicial panel of two Republican appointees and one Democrat appointee questioned Mr. Clement and Moussaoui’s attorney closely.

“Is there no right” for Moussaoui to reach the witnesses and use their favorable testimony, asked Judge Karen Williams, an appointee of President Bush’s father.

“The proper question is, ‘Does the Constitution require [criminal defendants] to get a windfall in that situation?’” Mr. Clement responded. He said the answer is no.

Judge William Wilkins, a Reagan-era appointee, asked Moussaoui attorney Frank Dunham whether the government was correct in saying that the al Qaeda witnesses are available only because of the war on terror.

Yes, said Mr. Dunham, but windfalls happen all the time for criminal defendants.

“You can be talking to someone in a bar who says, ‘I saw that,’” and that defendant would then have a windfall by being afforded access to that witness, Mr. Dunham said.

The third judge on the panel is Roger Gregory, an appointee of President Clinton.

Mr. Clement argued that if Moussaoui is allowed to question the witnesses, they might invoke their Fifth Amendment right against self-incrimination and Moussaoui would be no better off than he is now.

Mr. Dunham asked whether the government should be able to seek to execute a man for plotting the September 11 attacks while barring him from witnesses who know all about those plans.

“The answer to that question is a resounding no,” Mr. Dunham said. “Our system of American fair play and justice will not allow such a result.

“This is America,” he said. “This is more about who we are than it is about Moussaoui.”

The government says Moussaoui, 35, who admits to being a member of Osama bin Laden’s network, is trying to injure national security indelibly by questioning al Qaeda captives, who may reveal classified information that could help other terrorists. The defense contends the government is preventing Moussaoui from exercising his Sixth Amendment right to call favorable witnesses, who might back up his contention that he was not part of the September 11 conspiracy.

Arrested a month before the attacks, Moussaoui says he was to be part of a later al Qaeda operation. The government says he might have planned to fly a plane into the White House.

Moussaoui was charged in December 2001 with participating in a broad al Qaeda conspiracy to commit terrorism and hijack airplanes. The overt acts included, but were not limited to, planning the terrorist attacks.


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