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Feds will appeal Moussaoui ruling

Zacarias Moussaoui
Zacarias Moussaoui

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Order being appealed  (FindLaw, PDF)external link
• Judge Brinkema's Opinion on October 2, 2003 external link
• Notice of appeal: U.S. v. Moussaoui (FindLaw, PDF)external link

(CNN) -- The Justice Department Tuesday filed notice it will appeal a judge's ruling that severely set back its case against alleged September 11 conspirator Zacarias Moussaoui.

The notice, filed with the federal trial court in Alexandria, Virginia, said the government planned to challenge the order by U.S. District Judge Leonie Brinkema to the 4th U.S. Circuit Court of Appeals in Richmond, but did not lay out their arguments for doing so.

"The United States certifies that this appeal is not taken for the purpose of delay," said the filing submitted, by U.S. attorney Paul McNulty.

The decision to appeal was expected after Brinkema ruled last week that prosecutors may not claim Moussaoui was involved in the September 11 plot or seek the death penalty against Moussaoui if he's convicted. Moussaoui is the only person charged in connection with the terror attacks. (Full story)

The ruling was punishment for the prosecution's refusal to obey Brinkema's orders to facilitate the testimony of three high-ranking al Qaeda captives with knowledge of plans for the attacks.

The clerk for the federal appeals court said December is likely the earliest possible date for oral arguments before the same three judges who heard arguments about witness access during the summer.

Moussaoui, 35, from France, has admitted training with al Qaeda, the terrorist group behind the September 11 attacks and others worldwide, and contended he would have participated in a post-September 11 attack outside the U.S.

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"We think the judge's decision was entirely correct and will do our best to have it upheld on appeal," said defense attorney Edward MacMahon, part of a team of court-appointed attorneys assisting Moussaoui, who is representing himself.

Brinkema's latest decision punished the prosecution for refusing to obey her orders to facilitate the testimony of three high-ranking al Qaeda captives with knowledge of how the attacks were planned.

Moussaoui is representing himself and the court-appointed attorneys assisting him want testimony from Khalid Shaiykh Mohammed, believed to be the architect of the September 11 plot; Ramzi Binalshibh, a Hamburg-based alleged coordinator of the attacks; and Dubai-based Mustafa al-Hawsawi, thought to be a financier of the September 11 hijackers.

The defense contends that Mohammed, Binalshibh, and al-Hawsawi would exonerate Moussaoui of participating in the attacks and that their testimony is essential to uphold his constitutional right to call available witnesses of his own choosing.

The Justice Department has said the witnesses are unavailable "enemy combatants" being detained by the U.S. military in foreign countries.

Prosecutors oppose Moussaoui's access to the detainees as a violation of national security that would also undermine the president's constitutional powers as commander-in-chief during the war on terrorism.

By not allowing the potentially exculpatory witnesses to appear in court or sit for the videotaped depositions the judge ordered, prosecutors will be "prohibited from arguing that Moussaoui had any knowledge of or involvement in the planning or execution of the September 11 attacks," Brinkema wrote in her opinion.

Moussaoui faced six conspiracy charges related to the September 11 attacks -- to commit terrorism transcending national boundaries, to commit aircraft piracy, to destroy aircraft, to use weapons of mass destruction, to murder United States employees, and to destroy property.

Prosecutors allege Moussaoui aspired to pilot and crash a plane into the White House. They have distanced themselves from earlier statements by government officials suggesting Moussaoui could have been the 20th hijacker on September 11 had he not been jailed on an immigration violation a month before.

If convicted of broader terrorism conspiracy charges, Moussaoui could still face life in prison.


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