Appeals court orders terror case to continue

WASHINGTON -- A federal appeals court on Thursday allowed the government's case against terrorism suspect Zacarias Moussaoui to proceed and threw out a penalty that would have eliminated the heart of the government's only Sept. 11, 2001, terror attack case.

The three-judge panel backed Moussaoui on the key issue, granting him access to three al-Qaida prisoners who have made statements that potentially could exonerate him.

The judges of the 4th U.S. Circuit Court of Appeals in Richmond, Va., ordered the trial judge to work out a compromise that would give Moussaoui access to written accounts of the witness statements.

Moussaoui's constitutional right to a fair trial demanded such access, even trumping the government's need to protect national security by denying an accused terrorist access to his former al-Qaida colleagues, the court said.

However, the judges said the trial judge -- Leonie Brinkema in Alexandria, Va. -- went too far in punishing the government for disobeying her orders to allow Moussaoui and his attorneys to question the captives by a remote video hookup.

The appeals court threw out Brinkema's two-pronged penalty, which consisted of banning any government evidence related to the Sept. 11, 2001, attacks and barring the death penalty -- a punishment the government vowed to seek if Moussaoui is convicted.

"No punitive sanction is warranted here because the government has rightfully exercised its prerogative to protect national security interests by refusing to produce the witnesses," the court said.

Moussaoui, who was arrested a month before the attacks while arousing suspicions at a flight school, is the only U.S. defendant charged as a conspirator with the 19 Sept. 11 hijackers. He has admitted belonging to Osama bin Laden's terrorist network but denied he was part of the plot, indicating instead that he was to have participated in a subsequent al-Qaida operation.

The FBI in Minneapolis had sought to search Moussaoui's computer after the French citizen's arrest for immigration violations but was turned down by bureau headquarters. Members of a commission investigating the Sept. 11 attacks have questioned whether the plot would have been discovered if the Minneapolis request had been granted.

On the key issue of access to witnesses, the appeals court said that from at least one witness, "a jury might reasonably infer ... that Moussaoui was not involved in Sept. 11. We therefore conclude that Moussaoui has made a plausible showing" that the witness would be favorable to him.

Chief Judge William W. Wilkins wrote the opinion. Judges Karen J. Williams and Roger L. Gregory concurred with portions but dissented from other parts.

The appeals court rejected Brinkema's view that it was not possible to craft a compromise to give Moussaoui access to the witnesses -- saying that written statements from the prisoners could substitute for direct questioning.

Gregory said in his dissent that the instructions for drafting the witness statements for the jury put Brinkema "in a thoroughly untenable position."

The court instructed Brinkema to work with the government, Moussaoui and his court-appointed attorneys to draft the language of the statements that will be presented to the jury. The judges said the statements should use the exact language from the witness interrogations "to the greatest extent possible."

The court said Moussoui and his lawyers could pick from the summaries of the witness interrogations the statements they want to present to the jury and Brinkema then would prepare the final language. When she finished, Moussaoui would have the final say on whether to submit the statements to the jury.

"We are asking the court to do something that it has stated cannot be done," Gregory said, referring to Brinkema's earlier findings. "It will be difficult, perhaps impossible, for the district court to credibly prepare substitutions that it would consider admissible."

The witnesses have not been publicly named, but media reports have said they included two top operatives, Ramzi Binalshibh and Khalid Shaikh Mohammed.