WASHINGTON -- Lawyers for terrorism suspect Zacarias Moussaoui told the Supreme Court it was ''offensive to the rule of law" to deny him access to Al Qaeda witnesses who could aid his defense in a trial.
The written brief asked the court to hear arguments on whether Moussaoui could get a fair trial if faced with ''a dangerous new loophole" to his constitutional right to call favorable witnesses.
An appeals court ruling denied him access to the witnesses on national security grounds, even though the government has said it would seek Moussaoui's execution if he's convicted.
In most instances, constitutional challenges in criminal cases are heard after a defendant is tried and convicted. The lawyers said in this case, it was important to present the arguments before trial to demonstrate that a defendant's rights don't disappear -- even in a case resulting from the terrorist attacks of Sept. 11, 2001.
Moussaoui is the only US defendant charged in an Al Qaeda conspiracy to commit terrorism that includes the Sept. 11 attacks. The French citizen was arrested a month before the hijackings for immigration violations and has been in custody since then. No trial date has been set.
The arguments were filed Jan. 10, but the brief was made public only yesterday so that classified material could be deleted.
Repeating arguments that failed to persuade a federal appellate court to grant access to the three Al Qaeda prisoners, the lawyers said that the judges gave the government ''absolute power to withhold . . . exculpatory witnesses in a death penalty case without suffering sanctions." The sanction the defense wants is elimination of the death penalty in the case.
The government had contended that it would jeopardize national security to make the Al Qaeda prisoners available, even through a closed-circuit video hookup once proposed by the trial judge.
The appellate court's solution was to have the government submit summaries of the prisoner statements during the trial as a substitute for testimony. The defense lawyers said this solution was not acceptable.
''In place of the constitutional protections that have been erected to give a defendant a fair trial, Moussaoui is told to just trust summaries authored by the government of what it says these witnesses would say," the brief said. ''Such a proposition is ripe for potential abuse -- a proposition so offensive to the rule of law that the 4th Circuit does not even acknowledge that this is the rule it creates."