- The Washington Times - Friday, June 27, 2003

A federal appeals court panel yesterday rejected a bid by government prosecutors to block accused terrorist Zacarias Moussaoui from questioning a senior al Qaeda official in U.S. custody, saying it did not have the authority to hear the government’s appeal.

A three-judge panel for the U.S. 4th Circuit Court of Appeals in Richmond, in dismissing the government request on technical grounds, refused to act on a January ruling by U.S. District Judge Leonie Brinkema, who said Moussaoui could question via video conference Ramzi Binalshibh, an al Qaeda operative suspected of helping coordinate the September 11 attacks on America.

The government, which says Moussaoui conspired with the al Qaeda hijackers who flew jetliners into the World Trade Center, the Pentagon and a Pennsylvania field, argued that giving Moussaoui access to Binalshibh could jeopardize national security and asked the appeals court to overturn the ruling. Prosecutors said they would not allow the Binalshibh interview.

The panel, however, said the government’s request was premature and that it could not act in the matter because prosecutors had not yet formally notified the district court of their refusal to comply.

“The order of the district court will not become final unless and until the government refuses to comply and the district court imposes a sanction,” the panel said in a unanimous opinion written by Chief Judge William Wilkins. The panel said orders must be final before they can be appealed.

The panel called the government request “one of extraordinary importance” and said it was “prepared at this time to rule on the substantive questions before us.” But it said it was “compelled to conclude that we are without authority to do so because the order of the district court is not yet an appealable one.”

Justice Department spokeswoman Barbara Comstock said the department was “pleased” that the panel had recognized the “extraordinary importance” of the issues and that it was prepared to rule on the matter.

“However, the court has not yet ruled on the merits of the issue — access to an alien seized abroad as an enemy combatant in the midst of a war,” she said. “Rather, the opinion addresses certain threshold procedural and jurisdictional matters which we are studying. We look forward to bringing Zacarias Moussaoui to justice.”

Moussaoui, 34, has acknowledged his ties to the al Qaeda network but has denied any involvement in the September 11 attacks. He told the district court Binalshibh could support his position. The Binalshibh interview was postponed when government prosecutors appealed the matter.

Prosecutors, who are seeking the death penalty for Moussaoui, have several options. They could return to district court to determine what sanctions are imposed once they refuse to give Moussaoui access to Binalshibh, appeal the case to the full appeals court, or bring the matter before the U.S. Supreme Court.

Federal law enforcement authorities also said prosecutors, if ordered to allow the suspected terrorist to question Binalshibh, could drop the criminal charges, declare Moussaoui an “enemy combatant” and order him tried before a military tribunal.

One of Moussaoui’s court-appointed attorneys, Edward B. MacMahon Jr., said in a statement he was “pleased that the court accepted our argument that there is no jurisdiction at this time to hear the appeal. We are prepared to proceed in the district court consistent with the opinion.”

Moussaoui, a French Moroccan, acknowledged last year that he was a terrorist and called al Qaeda founder Osama bin Laden “my brother in Islam and my father in jihad.”

But he said he was under surveillance by the FBI and other foreign intelligence agents before the September 11 attacks and, as a result, the government knew he was not a part of the conspiracy. The government has denied the accusations, saying none of the hijackers was under surveillance.

Prosecutors believe Moussaoui was intended as the 20th hijacker but was taken into custody in August 2001 on immigration violations after officials at a Minnesota flight school became suspicious of him. He was indicted Dec. 11, 2001, by a federal grand jury on six counts of conspiracy, accused of plotting with bin Laden and members of the al Qaeda network in the September 11 attacks.

Binalshibh was named in the Moussaoui indictment as an unindicted co-conspirator who acted as a financier and facilitator of terrorism, transferring funds to Moussaoui and other terrorists. He was arrested on September 11, 2002.



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