- The Washington Times - Monday, July 14, 2003

The government yesterday refused to produce a top al Qaeda member to be interviewed by Zacarias Moussaoui via satellite teleconference, a move that could force the dismissal of charges against the Moroccan native accused in the September 11 attacks.

In a motion filed in U.S. District Court for the Eastern District of Virginia, federal prosecutors said the teleconference between Moussaoui and detained terrorist Ramzi Binalshibh “would necessarily result in the unauthorized disclosure of classified information.”

“Such a scenario is unacceptable to the government, which not only carries the responsibility of prosecuting the defendant, but also of protecting this nation’s security at a time of war with an enemy who has already murdered thousands of our citizens,” the motion said.

Eastern District Judge Leonie M. Brinkema ordered in January that Moussaoui, in his in attempts to prove his innocence on charges he conspired with al Qaeda in the September 11 attacks, had a right to interview Binalshibh, who was taken into U.S. custody in Pakistan last year as an enemy combatant.

Prosecutors, determined to have Judge Brinkema’s order overthrown, attempted to appeal it this spring in the U.S. 4th Circuit Court of Appeals. But the appeals court balked, with a three-judge panel ruling June 30 that it was premature to intervene in the Moussaoui case.

As a result, Judge Brinkema ordered the government to announce yesterday whether it would comply with the ruling to allow Moussaoui access to Binalshibh. In their motion, filed to just after 6 p.m. last night, prosecutors attached a classified affidavit written by Attorney General John Ashcroft objecting to the judge’s January ruling.

The motion acknowledged that refusing to produce Binalshibh “obligates the court” to dismiss the charges against Moussaoui and potentially take further disciplinary action against U.S. Attorney Paul J. McNulty and his team of federal prosecutors.

Douglas W. Kmiec, the dean of Catholic University’s Columbus School of Law and a close observer of the Moussaoui case, said Judge Brinkema “could conceivably hold the Justice Department lawyers in contempt” of court for their failure to comply with her order to produce Binalshibh.

“I think what is more likely is that she will contemplate some form of reduction in charge, indicating that the government’s case either cannot go forward entirely or in part by virtue of its stated unwillingness to produce a witness,” Mr. Kmiec said.

He added, however, that once Judge Brinkema announced her punishment, prosecutors can be expected to bring the case back to the 4th Circuit Court of Appeals, which “at that point will be able to assert jurisdiction.”

Reached by telephone last night, Frank W. Dunham Jr., the federal public defender appointed to assist Moussaoui, who is acting as his own attorney, said he was still studying yesterday’s developments and was “not yet in a position to comment.”

Moussaoui, arrested shortly before the September 11 attacks, has been accused of being the “20th hijacker,” who was to join the 19 others who crashed jetliners into New York City’s twin World Trade Towers, the Pentagon and a field in Pennsylvania, killing 3,000. Four of the six felony charges faced by Moussaoui, a Moroccan-born French citizen, carry the death penalty.

The issue of whether Moussaoui should be allowed access to terrorist suspects in custody has caused some to ask why President Bush doesn’t intervene and change Moussaoui’s status to enemy combatant, rather than continue trying to prosecute him as a criminal in civilian courts.

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