WASHINGTON, 24 April 2004 — A federal appeals court on Thursday cleared the way for Zacarias Moussaoui to be tried in a criminal court, ruling that he cannot interview key Al-Qaeda detainees and that he can be put to death for his alleged role in the Sept. 11, 2001, attacks.
The decision by the US Court of Appeals for the 4th Circuit overturned the order of a trial judge in Alexandria, Va., who had barred the government from executing Moussaoui and from presenting any Sept. 11-related evidence at his trial. The appeals court instead ordered the lower court judge to craft a compromise that allows Moussaoui to present statements made by the detainees but does not allow him to interview them.
The witness access issue — pitting Moussaoui’s constitutional right to introduce evidence on his behalf against the government’s right to wage war on terrorism — has snarled for more than a year the only US criminal prosecution stemming from the attacks on the World Trade Center and the Pentagon.
Thursday’s 2-1 ruling by a three-judge panel in Richmond, Virginia, is effectively a victory for the government. If it stands, it will allow prosecutors to present detailed evidence of the Sept. 11 attacks, including testimony from families of victims. In addition, it means the case most likely would proceed in the civilian courts. Federal officials had long said they might move the case to a military tribunal if they lost the appeal.
At issue was a ruling from US District Judge Leonie Brinkema ordering the government to allow Moussaoui and his attorneys to depose three leading Al-Qaeda detainees. The government refused to produce them, and Brinkema punished prosecutors by disallowing the death penalty and any testimony related to Sept. 11.
Federal Public Defender Frank Dunham, one of Moussaoui’s attorneys, said he was “pleased that the court recognized our right to access to the witnesses.” The defense team, he said, is “studying the process laid out” by the court to craft an alternative to live testimony from the witnesses.
Attorney General John Ashcroft said in a statement last night that the ruling “upheld the government’s core position” in allowing prosecutors to seek the death penalty and present evidence of the Sept. 11 conspiracy. “The Court held that the government can provide Zacarias Moussaoui with a fair trial while still protecting critical national security interests,” said Ashcroft, who added that the department is studying the opinion “to determine the next course of action.”
It was unclear Thursday night whether either side will appeal the ruling, either to the full slate of 4th Circuit judges or directly to the Supreme Court.
In its ruling, the panel accepted the government’s argument that interrupting the interrogation of detainees and allowing Moussaoui access to them would harm national security, writing that it would “have devastating effects on the ability to gather information from them.”
“It is not unreasonable to suppose that interruption...could result in the loss of information that might prevent future terrorist attacks,” the court said.
In its decision Thursday, the appeals court said the government’s refusal to produce the witnesses had been “done in the utmost good faith” and reflected its “grave responsibility of protecting the lives of the citizenry.”
“We emphasize that no punitive sanction is warranted here because the government has rightfully exercised its prerogative to protect national security interests by refusing to provide the witnesses,” the court said.
The court ordered Brinkema to craft alternative versions of statements made by the witnesses, known as substitutions for live testimony. Brinkema had earlier rejected substitutions submitted by the government, but the 4th Circuit ordered her to try again with help from both sides.
The revised substitutions must as closely as possible mirror statements made by the detainees, which are now classified, the court said.
