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Prosecutors favor dropping moussaoui case { September 26 2003 } Original Source Link: (May no longer be active)
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Prosecutors Favor Dropping Moussaoui Case
By LARRY MARGASAK
Associated Press Writer
September 26, 2003, 2:49 AM EDT
ALEXANDRIA, Va. -- Federal prosecutors urged a judge to dismiss charges against Zacarias Moussaoui, saying it was the quickest way to resolve a dispute over the terrorism defendant's right to question fellow al-Qaida witnesses.
A government motion agreed with Moussaoui's lawyers that dismissal was an appropriate punishment for the Bush administration's defiance of two court orders that granted Moussaoui the right to question three captives.
But in the motion released Thursday, the government only was maneuvering to trigger a ruling by an appellate panel on Moussaoui's right to question enemy combatants. Prosecutors asked U.S. District Judge Leonie Brinkema to issue a stay if she dismissed the case, an order that would keep the charges in place during an appeal.
The witness access issue has delayed the only U.S. trial to arise from the Sept. 11, 2001, attacks. Moussaoui is charged with participating in a broad conspiracy to commit terrorism that includes -- but is not limited to -- the airplane hijackings that killed more than 3,000 people in New York City, Washington and Pennsylvania.
Brinkema has concluded, in January and August orders, that the three enemy combatants could support Moussaoui's denial that he was a conspirator in the Sept. 11 attacks. The Justice Department has countered that any testimony by the prisoners would reveal classified information, and that it might eventually have to move the case to a military tribunal if it loses the appeal.
A panel of the 4th U.S. Circuit Court of Appeals in Richmond, Va., has heard oral arguments in the government's appeal of Brinkema's January order granting Moussaoui the right to question a captive. But the panel said it would rule only after Brinkema punished the government for defying her.
Moussaoui's lawyers, who represent his interests while he serves as his own attorney, asked for dismissal in a motion released Wednesday. The defense team wasn't maneuvering for an appellate ruling, however, but arguing the case actually should be thrown out because without the witnesses, Moussaoui could not receive a fair trial.
Prosecutors told Brinkema in their motion, "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."
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 severest possible sanction, the judge could take lesser action, including barring the government from seeking the death penalty.
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.
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.
Copyright © 2003, The Associated Press
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