The decision by the U.S. Court of Appeals for the 4th Circuit overturned the order of a trial judge in Alexandria, who had barred the government from seeking to execute Moussaoui and from presenting any Sept. 11-related evidence at his trial. The appeals court instead ordered the lower court judge to craft a compromise that allows Moussaoui to present statements made by the detainees but does not allow him to interview them.
The witness access issue — pitting Moussaoui’s constitutional right to introduce evidence on his behalf against the government’s right to wage war on terrorism — has snarled for more than a year the only U.S. criminal prosecution stemming from the attacks on the World Trade Center and the Pentagon.
Yesterday’s 2 to 1 ruling by a three-judge panel in Richmond is effectively a victory for the government. If it stands, it will allow prosecutors to present detailed evidence of the Sept. 11 attacks, including testimony from families of victims. In addition, it means the case most likely would proceed in the civilian courts. Federal officials had long said they might move the case to a military tribunal if they lost the appeal.
At issue was a ruling from U.S. District Judge Leonie M. Brinkema ordering the government to allow Moussaoui and his attorneys to depose three leading al Qaeda detainees. The government refused to produce them, and Brinkema punished prosecutors by disallowing the death penalty and any testimony related to Sept. 11.
Federal Public Defender Frank W. Duham Jr., one of Moussaoui’s attorneys, said he was “pleased that the court recognized our right to access to the witnesses.” The defense team, he said, is “studying the process laid out” by the court to craft an alternative to live testimony from the witnesses.