- The Washington Times - Wednesday, February 27, 2008


Lawyers urged Zacarias Moussaoui not to plead guilty to terrorism charges. They just couldn’t tell him why.

In newly filed court documents, Moussaoui argues that court-imposed secrecy undermined his ability to present an adequate defense. His new lawyers say that Moussaoui’s guilty plea should be thrown out and that a new trial should be convened for the man who once claimed to have been a part of the September 11 terrorist plot.

Moussaoui was not allowed to see the classified evidence against him and was shut out from closed-door hearings in which that evidence was laid out. His lawyers could advise him, but they could not discuss everything — only the evidence approved by prosecutors or the judge.

Defense lawyers say they were barred from even discussing with Moussaoui evidence that could help prove his innocence. They say Moussaoui faced an unconstitutional choice: Plead guilty or go to trial without knowing the evidence.

“Moussaoui appeals because his plea was unknowing, uncounselled and invalid,” attorneys Justin Antonipillai and Barbara Hartung wrote.

The court documents, filed with the 4th U.S. Circuit Court of Appeals in Richmond, raise a fundamental question about whether terrorism suspects such as Moussaoui should be given access to all the evidence against them — access that is guaranteed in criminal cases.

That question is certain to be raised again as the Bush administration plans to try several suspects before military tribunals at the Guantanamo Bay naval base. Judges in those cases will have broad authority to limit what evidence detainees can see.

“It’s totally a farce if the defendant can’t see the evidence against him,” said David Remes, who represents several Guantanamo Bay detainees. “How can he rebut evidence he doesn’t know? How can he tell his lawyer how to rebut it or where to look for the rebuttal evidence? How can he discredit his accuser if he doesn’t know who his accuser is?”

In a typical court case, defense attorneys pore over the government’s evidence and, with the defendant’s input, look for holes in the case. They gather evidence in their favor and try to undercut the government’s witnesses.

In terrorism cases, however, that evidence is often some of the nation’s most sensitive intelligence secrets. It could reveal the identity of spies and their sources. It could reveal how the U.S. gathers intelligence, and it might reveal ways for terrorist groups to avoid detection.

Glenn Sulmasy, a national security fellow at Harvard University, said Moussaoui’s latest appeal shows “exactly why civilian courts are not the place to try international terrorists.”

Mr. Sulmasy said military commissions are better equipped to balance national security and individual liberties. But he said a permanent national security court would be even better.

Since being sentenced to life in prison, Moussaoui has said he lied when testifying that he was to hijack a fifth jetliner on September 11. He has returned to asserting — as he had for four years before the trial testimony — that he had nothing to do with the suicide hijackings that took nearly 3,000 lives that day in 2001.

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