Moussaoui can see top-secret federal information, judge says
Friday, April 25, 2003
ALEXANDRIA, Va. -- A judge ordered the government Thursday to immediately give terrorism suspect Zacarias Moussaoui its top-secret plan for allowing him limited access to a senior al-Qaida prisoner.
The government attempted to submit the material to the court and keep it from Moussaoui for the time being. Classified as "Top Secret/Codeword," the information was offered as a substitute for allowing Moussaoui to interview captive Ramzi Binalshibh via video hookup.
U.S. District Judge Leonie Brinkema, who in January had approved the direct video questioning of Binalshibh, said Moussaoui must see the substitute proposal now. The government, which is still appealing Brinkema's January order, said Moussaoui only could see a final version of its alternate proposal later, indicating it may intend to change the plan before Moussaoui would see it.
The government alternative was substituted after an appeals court ordered an effort to reach a compromise before it took up the case.
Charged as a conspirator with the Sept. 11, 2001, hijackers, Massaoui has contended that Binalshibh could demonstrate that he was not part of the attack plot.
Brinkema said Moussaoui has the right to any information with the potential to help his defense, but prosecutors vigorously protested any direct access between the defendant -- an acknowledged al-Qaida loyalist -- and a suspected coordinator of the attacks.
"This proposal is unacceptable," Brinkema said of the government plan to keep its alternative from Moussaoui for now.
The Justice Department had no comment on the order.
The order is the latest warning by the judge that the government has an obligation to ensure that Moussaoui -- who is representing himself -- receives material that could exonerate him from charges of conspiring to commit terrorism. She previously questioned whether the government could continue a prosecution in open court -- in a death penalty case -- while keeping volumes of secret information from the defendant.
Moussaoui has a team of court-appointed lawyers who are cleared to receive classified information, but he does not cooperate with them.
The government had appealed Brinkema's order for the video hookup to the 4th U.S. Circuit Court of Appeals in Richmond, Va., arguing that judges should not disturb a national security interrogation or micromanage the war on terrorism.
The appellate court, with oral argument scheduled next month, suggested the government propose a substitute for the direct interview, with Moussaoui and his court-appointed lawyers to be given a chance to respond.
Brinkema said that keeping the substitute from Moussaoui would violate the appellate court order that the defense should have a say on the access question.
In her two-page order she wrote, "Only Mr. Moussaoui can advise the court and/or his standby counsel what, if any, exculpatory material is missing from the proposed substitutions."
Saul Pilchen, a Washington attorney who has dealt with classified information in criminal cases said, "It's the business of federal judges to determine whether a defendant has shown that the government may have exculpatory evidence. Judge Brinkema has made some type of finding this guy (Binalshibh) may well have evidence" that would help the defense.
"Moussaoui and his team are playing very effectively the leverage they have, by forcing the government to address the conflict between the war on terrorism and due process for federal criminal defendants.
"They are forcing the government to do things it doesn't want to do."
Pilchen said the substitute could involve the government's admission to certain facts from Binalshibh's interrogation or a summary of his statements about Moussaoui.
No matter what the government's substitute plan, Pilchen said, the Classified Information Procedures Act has a major protection for the defendant. It requires that he be left in the same position, using the substitute plan, as he would have been if he had total access to the witness.