Court orders deal on Moussaoui witnesses

ASSOCIATED PRESS

A federal appeals court in Virginia yesterday allowed the government’s case against terrorism suspect Zacarias Moussaoui to proceed and lifted a ban on prosecutors presenting evidence related to the September 11 attacks.

The three-judge panel ordered U.S. District Judge Leonie Brinkema to work out a compromise on the key issue: whether Moussaoui should have access to al Qaeda witnesses who could help his case. The judges also allowed the federal government to seek the death penalty in the case.

The government had asserted that Judge Brinkema had exceeded her authority by ruling that Moussaoui — an acknowledged al Qaeda member — could have access to three prisoners from Osama bin Laden’s terrorist organization. The three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond rejected the government’s argument.

The judges affirmed the trial judge’s findings that “the enemy combatant witnesses could provide material, favorable testimony on Moussaoui’s behalf.”

However, the appeals judges rejected Judge Brinkema’s view that it was not possible to craft a compromise — saying written statements from the prisoners could substitute for direct questioning of the witnesses.

Moussaoui is the only U.S. defendant charged as a conspirator in the September 11 hijackings. He is accused of planning to attack the United States and its citizens, although the indictment also includes Moussaoui’s prior conduct.

Judge Brinkema sought to punish the government for refusing her orders allowing access to the prisoners by barring all evidence related to September 11 and banning the death penalty, which the government said it would seek if Moussaoui was convicted.

The appeals judges rejected the sanctions.

“No punitive sanction is warranted here because the government has rightfully exercised its prerogative to protect national-security interests by refusing to produce the witnesses,” the court said.

The appeals court said Judge Brinkema was wrong in rejecting the government’s proposal to provide written summaries of statements from the witnesses that Moussaoui had sought for his defense, rather than providing the actual witnesses to testify at his trial.

Both sides claimed victory, with Attorney General John Ashcroft saying the ruling upheld the government’s core position.

“The court held that the government can provide Zacarias Moussaoui with a fair trial, while still protecting critical national-security interests,” he said. “The government will not be required to provide Moussaoui with interactive access to detained terrorists. This ruling also allows us to seek the death penalty and to present evidence regarding the conspiracy of the September 11, 2001, terrorist attacks.”

Edward MacMahon Jr., one of Moussaoui’s court-appointed attorneys, said, “We’re pleased that the court recognized some of the fundamental rights that are recognized in the opinion,” especially the right of access to witnesses and a fair trial.