Court hears appeal on Moussaoui

RICHMOND -- Federal appeals judges yesterday sharply questioned whether terrorism defendant Zacarias Moussaoui can receive a fair trial while the government denies him testimony from Al Qaeda witnesses who he says could exonerate him.

During a hearing on the fairness and death-penalty issues that have delayed the trial for the suspected Al Qaeda operative, judges searched for a way to resolve a clash between defendants' rights and the government's ability to fight the war on terrorism.

With the government declaring the witnesses off-limits to the defense, Judge William Wilkins, who was appointed by President Reagan, asked the same pointed question of both sides:

"Is Moussaoui entitled to any remedy?"

Justice Department lawyer Paul Clement said Moussaoui has the right to material that might exonerate him but national security overrides his right of access to enemy combatants held abroad. The government fears the witnesses might reveal secret information.

"The proper question is, `Does the Constitution require them [terrorism defendants] to get a windfall' " because Al Qaeda operatives were captured? he asked. The answer must be no, Clement said.

Frank Dunham Jr., the federal public defender representing Moussaoui, said the remedy lay in the sanctions imposed by a trial judge that led to the government's appeal. US District Judge Leonie Brinkema, in Alexandria, Va., banned any evidence connecting Moussaoui to the Sept. 11, 2001, attacks and barred prosecutors from seeking the death penalty.

"Our system of American justice and fair play will not permit" the government to seek Moussaoui's execution while denying him favorable testimony, Dunham said.

While Moussaoui is the only US defendant charged with terrorism related to the attacks, Dunham said that even "for a most notorious enemy charged with the worst crime in American history, we will not bend the rules for our convenience even at the expense of our security."

"This is America and in the end, this is more about who we are than it is about Mr. Moussaoui."

Moussaoui was charged in December 2001 with participating in a broad Al Qaeda conspiracy to commit terrorism and hijack airplanes. The overt acts included, but were not limited to, planning the Sept. 11 attacks.

He was not present at the hearing. His venomous court filings recently caused the trial judge to revoke his right to represent himself in his case.

Brinkema's ruling followed a refusal by the government to obey two orders directing it to make three Al Qaeda witnesses available to the defense. If the government can't win a reversal, it may decide to move the case to a military court. The witnesses reportedly include top operatives Ramzi Binalshibh and Khalid Shaikh Mohammed.

Judge Roger Gregory, appointed by President Clinton, pressed government lawyer Clement to cite language in the Constitution that requires a balancing of national security and a defendant's rights.

Clement agreed the Constitution has no such provision but responded, "What you should balance is what a defendant is going to lose" by not having access to the witnesses.

Clement, a deputy solicitor general, said the loser may, in fact, be Moussaoui because the favorable witnesses might refuse to testify by invoking the Fifth Amendment right against self-incrimination.

"The defendant may be no better off and may be worse off," he said, adding that Moussaoui's best chance for fairness would be an agreement to receive summaries of the prisoners' statements. An earlier attempt to work out such a compromise failed because neither side proposed a solution acceptable to Brinkema.

Judge Karen Williams, who was appointed by the first President Bush, asked Clement whether he wanted the appellate court "to find the Supreme Court didn't mean what it said" when it gave defendants the right to have favorable material and testimony.

"Not at all," Clement responded.

Dunham, who acknowledged the witnesses would probably never testify, agreed that Moussaoui received a windfall by the capture of Al Qaeda operatives who might help him, but argued that this was not unusual for criminal defendants.

Pressed by Wilkins for an example, Dunham said, "You're talking to somebody in a bar who says, `I saw that, I saw what happened.' All of a sudden you have a witness you'd never thought you'd get to see."

If the witness was in US custody, Wilkins said, the defense clearly would have access to him.

"And I wouldn't have to go looking for him with a lantern and say, `Where's my witness?' like Paul Revere," Dunham said, a reference to the government's holding of the Al Qaeda witnesses in secret locations.

The appeals court held two sessions, one open to the public and a second held secretly for discussion of classified information related to the Al Qaeda prisoners.