In a heavily redacted opinion yesterday, a federal appeals court reaffirmed an earlier ruling that allows the death-penalty prosecution of alleged Sept. 11 conspirator Zacarias Moussaoui to proceed, but hinted that Moussaoui may be able to submit written questions to top-level al-Qaida prisoners held by the United States.
The amended opinion by the 4th U.S. Circuit of Appeals in Virginia largely tracked its April decision, holding that a district court judge was wrong to bar the death penalty as a sanction for the government’s refusal to allow Moussaoui to depose al-Qaida detainees held overseas with information about the case.
The prisoners, believed to include Sept. 11 mastermind Khalid Shaikh Mohammed and plotter Ramsi Binalshibh, have made statements under interrogation that lawyers for Moussaoui believe are exculpatory. Prosecutors say allowing Moussaoui to question them would harm national security. Instead of the death penalty ban, the 4th Circuit ordered the trial judge to summarize their statements for the jury.
But in one potentially significant change, the court yesterday said that, since April, it had learned from prosecutors that members of the Moussaoui prosecution team had access to the detained witnesses, and that raised the question of whether it would “now be appropriate to submit written questions to any of the enemy combatant witnesses.”
In a footnote, the court noted that the Sept. 11 Commission had been permitted to submit written questions for al-Qaida detainees without harm to national security.