Justice Department compromise sought on Moussaoui interview

Friday, March 14, 2003

WASHINGTON -- Trying to salvage the prosecution of Zacarias Moussaoui in a civilian court, the Justice Department is exploring ways to provide attorneys for the accused Sept. 11 attacks conspirator with information from a major al-Qaida prisoner, officials said Thursday.

Prosecutors will submit a brief today to a federal appeals court in Richmond, Va., arguing there are ways to protect Moussaoui's constitutional right to information that could help his case.

Legal experts said there are several ways to provide the defense with limited access to individuals including Ramzi Binalshibh, a captive suspected of a major role in the Sept. 11 attacks and held in a secret location.

The government could submit written questions on Moussaoui's behalf, or make available an unclassified version of Binalshibh's responses to interrogators.

There are several reasons officials don't want defense lawyers to directly interview Binalshibh. They want to keep his prison location a secret and control the questions he's asked. Also, they don't want a third party to upset the relationship between the captive and his interrogators.

In the case of John Walker Lindh, an American who fought with the Taliban, defense lawyers in the pretrial stage won the right to submit written questions to U.S. detainees in Cuba.

However, the questions had to be asked by U.S. interrogators, who were told to send the defense team videotapes of the interviews. The process was cut short when Lindh pleaded guilty.

If the Justice Department cannot resolve the witness access question, the case may be moved to a military tribunal, where rules allow greater secrecy.

One government official, who spoke only on condition of anonymity, said it will be a challenge for the Justice Department to satisfy federal judges that Moussaoui can get a fair trial and reasonable access to witnesses within the civilian court system.

While not commenting directly on the Moussaoui case, Justice Department spokeswoman Barbara Comstock agreed that prosecuting terrorists in federal courts requires a delicate balance.

"In many of our terrorism cases, our prosecutors have been faced with unique and time-consuming legal challenges," she said. "Nevertheless, our attorneys have faced these challenges aggressively with all of the appropriate attention to the legal rights of the accused."

In a 1980 case that reached a federal appellate court, judges upheld a tax-evasion conviction where access to witnesses was an issue.

While the government is obliged to divulge evidence favorable to a defendant, the court said in that case, it is not required to assist the defense in developing evidence it does not have. The search for the truth during a trial cannot overcome the government's ability to shield information because of a lawful privilege, the 2nd U.S. Circuit Court of Appeals said in the case, U.S. v. Norman Turkish.

Moussaoui, a French citizen, is the lone person charged in the United States as a conspirator with the Sept. 11 attackers. He has been granted the right to represent himself, but has no access to classified information. A team of court-appointed lawyers, working on his behalf, is cleared to see classified material.

The case, tentatively scheduled for opening statements in October, reached a crossroads recently. U.S. District Judge Leonie Brinkema, in Alexandria, Va., issued a secret order granting more access to Binalshibh than the government could accept. Prosecutors challenged the order in the 4th U.S. Circuit Court of Appeals.

The access issue in Moussaoui's case could break new legal ground for terrorist cases because the government has created a new class of prisoners who also could be witnesses. They are captives like Binalshibh, who have not been granted constitutional protections and are considered highly valuable sources of intelligence in the war on terrorism.

One law enforcement source said the government does not want to introduce new elements into its interrogation of Binalshibh, which could interrupt or shut down the intelligence he is providing.

Also, the government does not want al-Qaida or others to discover how it got certain pieces of information, fearing this could jeopardize lives.

Saul Pilchen, a Washington attorney who has written on the use of classified information in criminal cases, said the law governing sensitive documents in trials could provide guidance to the judges.

The Classified Information Procedures Act allows the government to substitute documents that still contain the relevant information a defendant would need. The government would omit anything that would reveal sources and methods of gaining the information.

"There would have to be some kind of written statement that would be read to the jury," Pilchen said. "Or the government could agree to stipulate to certain facts" concerning Binalshibh's statements.

Stephen Dycus, a national security law expert at Vermont Law School, agreed that a written document might be a sensible compromise.

"I just think the Justice Department really ought to struggle to find some alternative to dismissal and recommitment of Moussaoui to a military commission," he said. "That would be an awful precedent, an admission that the government is not prepared to provide a fair trial for somebody in Moussaoui's circumstances."

Associated Press reporter Curt Anderson contributed to this story.

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