ALEXANDRIA, Va. -- Prosecutors have agreed with Zacarias Moussaoui's lawyers that all charges against the terrorism defendant should be dismissed but only to hasten an appeal that challenges his right to question fellow al-Qaida prisoners.
In a written motion made public Thursday, the government also asked U.S. District Judge Leonie Brinkema to issue a stay, an order that would keep the charges in place during the appeal.
Prosecutors want an appellate court to overrule two of Brinkema's orders that gave Moussaoui the right to question three captives who, he says, could testify he was not a conspirator in the Sept. 11, 2001, attacks.
A panel of the 4th U.S. Circuit Court of Appeals in Richmond, Va., has heard oral arguments on one of the orders allowing Moussaoui to question enemy combatants but said it would rule only after Brinkema punished the government for defying the court.
"In light of the rulings this court has already made ... the government believes that, at this juncture, dismissal of the indictment ... is the surest route for ensuring that the questions at issue here can promptly be presented to the 4th Circuit," the government said.
Testimony by the witnesses would disclose classified information and damage national security, the government contended.
Brinkema could impose a punishment next week, after a Monday deadline expires for Moussaoui to submit his recommended sanctions against the government. While dismissal is the most severe possible sanction, the judge could take lesser action, including barring the government from seeking the death penalty.
Prosecutors have opposed any direct access between the prisoners and Moussaoui, who has acknowledged his loyalty to Osama bin Laden and is the only U.S. defendant charged as a conspirator with the Sept. 11 hijackers.
The government has argued that national security would be gravely harmed if any details were revealed about the sensitive interrogations or statements made by the prisoners, who are held in undisclosed locations outside the United States.
However, federal law says that when a defendant is prevented by court order from disclosing classified information -- in this case the al-Qaida testimony -- the judge is obligated to dismiss the case unless the court determines the interests of justice would be served by another solution.
Moussaoui's defense team, representing his interests while he serves as his own lawyer, said in a motion released Wednesday the case should be dismissed.
Two of the prisoners were among Osama bin Laden's top operatives, Sept. 11 mastermind Khalid Shaikh Mohammed and a key planner of the attacks, Ramzi Binalshibh. The third is Mustafa Ahmed al-Hawsawi, a suspected paymaster for al-Qaida.
In a statement, the Justice Department said, "We believe the Constitution does not require, and national security will not permit, the government to allow Moussaoui, an avowed terrorist, to have direct access to his terrorist confederates who have been detained abroad as enemy combatants in the midst of a war."
The government said in the motion the issue before the court is whether the constitutional right to access to favorable witnesses applies to an enemy combatant "seized and held abroad during armed hostilities."
"As the government has explained, the Constitution provides an accused terrorist with no such right to ... questioning of his confederates detained by the military overseas."
Prosecutors also said there were other ways to introduce witness statements beyond direct testimony but added that that issue could be decided later.