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Friday, April 23, 2004

A 4th U.S. Circuit Court of Appeals panel in Richmond, Va., ruled Thursday that Moussaoui could have access to information from three al-Qaida prisoners who might be able to exonerate him. This was a defeat for prosecutors, who argued that Moussaoui had no right of access to the captives.

Moussaoui's victory was limited, however. The court's majority said he could only receive written statements from the prisoners in a form that a trial judge will have to iron out.

The three-judge panel threw out the trial court's order to allow the defense access to the witnesses by a remote video hookup.

In a victory for the government, the panel tossed out the two-part penalty that U.S. District Judge Leonie Brinkema, in Alexandria, Va., had imposed on the government for refusing to arrange the video questioning.

She had barred prosecutors from seeking the death penalty and from presenting evidence related to Sept. 11, the heart of the government's case. Both are now restored.

"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.

Robert Precht, assistant dean for public service at the University of Michigan law school, called the ruling "a very pragmatic decision. The court of appeals affirms that the Constitution applies in terrorism cases.

"But having said that, the court said that ... we don't have to impose these severe penalties for the government's failure to abide by the Constitution." The government can now try to convince a jury "that Moussaoui is not just some marginal player," Precht said.

He's al-Qaida and French

The issue of witness access has delayed a trial for Moussaoui, a French citizen charged with participating in a terrorism conspiracy to attack the United States, along with the 19 Sept. 11 hijackers.

The government could appeal Thursday's ruling to the full 4th Circuit Court or the Supreme Court, continuing to argue that an accused terrorist and acknowledged al-Qaida loyalist should have no access to his former colleagues in Osama bin Laden's network.

However, Attorney General John Ashcroft reacted favorably to the ruling in a written statement. If the appeals court had upheld the ban on all Sept. 11 evidence in the case, legal experts said, the government might have moved the case to a military tribunal.

"The court held that the government can provide Zacarias Moussaoui with a fair trial while still protecting critical national security interests," Ashcroft said in a statement. "The government will not be required to provide Moussaoui with interactive access to detained terrorists. This ruling also allows us to seek the death penalty and to present evidence regarding the conspiracy of the Sept. 11, 2001, terrorist attacks."

Edward MacMahon Jr., one of Moussaoui's court-appointed attorneys, said, "We're pleased that the court recognized some of the fundamental rights that are recognized in the opinion," especially the right of access to witnesses and a fair trial.

A Vermont Law School professor, Stephen Dycus, said the appeals court fashioned a compromise that will allow the case to proceed in a civilian courtroom, where "appearances really matter."

He contrasted the Moussaoui case with those of Yaser Esam Hamdi and Jose Padilla, two American-born prisoners of the war on terrorism, who have been held and interrogated in the United States without charges. The Supreme Court will hear arguments on their cases April 28.

"The appearance is, these guys are being locked away indefinitely for reasons nobody knows," Dycus said. "They can't speak for themselves. Moussaoui is in a much better position. He will have his day in court, be able to speak for himself and will have an opportunity to gain access to information he could use to get off the hook."

Chief Judge William W. Wilkins of the 4th Circuit wrote Thursday's opinion. Judges Karen J. Williams and Roger L. Gregory concurred with portions but dissented from other parts.

They said Moussaoui's constitutional right to a fair trial demanded access to potentially favorable witnesses, even trumping the government's need to protect national security by denying an accused terrorist access to former colleagues.

Moussaoui, while acknowledging his loyalty to Osama bin Laden, has said he was not part of the Sept. 11 plot but indicated he was to take part in a later operation.

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