Moussaoui motions crafting a defense as insults continue

WASHINGTON -- In between rants about the judge, his court-appointed lawyers and the attorney general, terrorism suspect Zacarias Moussaoui has crafted a defense that contends senior al-Qaida captives will show he wasn't part of the Sept. 11 plot.

Moussaoui's complaints that prosecutors are withholding crucial information have persuaded the judge to question whether the government can give the acknowledged al-Qaida member a fair trial in open court.

In one recent motion, Moussaoui cited news reports that suspected Sept. 11 mastermind Khalid Shaikh Mohammed had told interrogators the defendant was not part of the conspiracy to attack the World Trade Center and Pentagon.

He asked the judge "to force the United Satan to give me the exculpatory statement of my brother Mohammed," because "brother Mohammed has told to the U.S. official that I was not 9/11."

Moussaoui's unpredictable self-representation has entangled the government in appeals even before the case goes to trial. He contends prosecutors are changing their theory of the case against him.

In recent motions he contended the government planned to argue in its opening statement at trial that he was a "5th pilot" of "an imaginary plane going to the Dark House," his sometimes reference to the White House.

"They keep it for the opening statement at trial to create some excitement," Moussaoui said. He asked how it was possible that "1 1/2 years after 9/11, the ... defendant does not know about it. Classified."

Bizarre statements

Some U.S. and foreign sources say Moussaoui may have planned to be part of a second wave of attacks after Sept. 11, 2001.

Legal experts say they're fascinated by the handwritten pleadings that place demands for access to witnesses and documents alongside insults and bizarre statements. Recently Moussaoui suggested the need to bang the judge's head against the wall, derided Attorney General John Ashcroft's Christianity, described one defense lawyer as fat and others as the racist, the Kamikaze and the Jew.

Michael Mello, professor at the Vermont Law School, characterizes Moussaoui as among those "mentally competent although crazy-behaving defendants who act in self-destructive ways."

Two weeks ago in Alexandria, Va., U.S. District Judge Leonie Brinkema warned prosecutors that she found merit in Moussaoui's demands for more information, and she questioned whether the government could proceed in a public trial while keeping documents and information secret.

Her comments followed by two months her secret order that reportedly granted Moussaoui's request to interview al-Qaida captive Ramzi Binalshibh, a suspected coordinator of the Sept. 11 attacks who -- the indictment says -- wired Moussaoui money as part of a conspiracy.

Salvaging a trial

More recently, the 4th U.S. Circuit Court of Appeals in Richmond asked Brinkema to invite the government to find alternative ways of using classified information in the case.

The appellate order appeared to signal an attempt to salvage the trial, which is tentatively set for the fall but remains in limbo until judges resolve the clash between safeguarding sensitive information and Moussaoui's constitutional rights.

Responding to the judge's skepticism and Moussaoui's demands, prosecutors said the defendant knows he can't see classified material. The government asserted he "is not entitled to a preview of the government's theory in this case," and called his motion "galling."

Stephen Dycus, a colleague of Mello at Vermont Law School, said Brinkema was obligated to raise questions about the government withholding information.

"It just sounds like a straight, by the book application" of the Classified Information Procedures Act, a law that guides courts in protecting a defendant's rights in a case involving classified information.

Other experts praised Brinkema for doing her constitutional duty despite a stream of insults directed toward her by Moussaoui.

Moussaoui often addresses her as "death judge" and recently referred to Ashcroft as a "natural born liar" who "claim to be a Christian who will not announce my death on Good Friday."

"Some judges would get fed up and disregard his motions for their insulting content," said Edward Cahn, the former chief U.S. district judge for eastern Pennsylvania. "Is it right? No. You can talk to a judge in a demeaning way and still get justice."

Cahn said that once after a prisoner failed to heed his warnings against cursing, he dismissed the man's lawsuit contending that authorities failed to protect him against physical attacks.

"I think I was wrong. Maybe I was hasty on that man's case," Cahn said.