The Bush administration asked a judge yesterday to stop all proceedings in the case against Zacarias Moussaoui, suspected as a conspirator in the September 11 attacks, until an appeals court settles security questions.
The government appeal could send the case out of the federal court system to a military tribunal.
A government official, who would not be identified by name, indicated a key issue is whether Moussaoui should have the right to question Ramzi Binalshibh, identified in the indictment as an al Qaeda operative who had been in contact with Moussaoui before their arrests. Binalshibh was captured in Pakistan and is undergoing questioning in secret.
U.S. District Judge Leonie Brinkema, who is hearing the Moussaoui case, issued a secret order in the Binalshibh matter last week. Moussaoui, representing himself, reportedly wants to question Binalshibh, and a defendant normally has the right to question witnesses who could help his defense.
In this instance, however, the Justice Department and intelligence agencies would not want Binalshibh to reveal information about the al Qaeda terror network in a public trial. If he were allowed to testify, a precedent could be set to bring other captured individuals into court.
A military tribunal would be held in private. Attorney General John Ashcroft has said he prefers to keep the case in the criminal justice system.
“Under the current circumstances of this case, it would be impracticable to continue this litigation until the issues presented to the 4th Circuit are resolved,” said the motion by U.S. Attorney Paul McNulty in Alexandria, referring to the 4th U.S. Circuit Court of Appeals in Richmond.
Judge Brinkema, who did not immediately rule on the request, allowed the motion to be filed publicly because it did not reveal the issues involved. For several months, she has handled virtually all matters in the case in closed session.
Moussaoui is the only person charged in the United States as a conspirator with the September 11, 2001, attackers who flew planes into the World Trade Center towers and the Pentagon and crashed another in a Pennsylvania meadow. The Justice Department is seeking the death penalty for Moussaoui, a French citizen of Moroccan descent.
Moussaoui has acknowledged membership in al Qaeda, but has denied participation in the September 11 attacks.
Authorities believe Binalshibh was a key figure in the Hamburg, Germany, terrorist cell that carried out the suicide attacks.
The problem for prosecutors is that pretrial decisions normally would not be appealed. The government raised this appeal on national-security grounds, however, under a law that governs use of classified information in a criminal trial.