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U.S. may give Moussaoui lawyers access to other prisoner

| Friday, March 14, 2003

WASHINGTON -- Trying to salvage the prosecution of Zacarias Moussaoui in a civilian court, the Justice Department is exploring ways to provide lawyers for the accused Sept. 11 conspirator with information from a major al-Qaida prisoner, officials said Thursday.

Prosecutors will submit a brief today to a federal appeals court in Richmond, Va., arguing there are ways to protect Moussaoui's constitutional right to information that could help his case.

Legal experts said there are several ways to provide the defense with limited access to individuals including Ramzi Binalshibh, a captive suspected of a major role in the Sept. 11 attacks and held in a secret location.

The government could submit written questions on Moussaoui's behalf, or make available an unclassified version of Binalshibh's responses to interrogators.

There are several reasons officials don't want defense lawyers to directly interview Binalshibh. They want to keep his prison location a secret and control the questions he's asked. Also, they don't want a third party to upset the relationship between the captive and his interrogators.

In the case of John Walker Lindh, an American who fought with the Taliban, defense lawyers in the pretrial stage won the right to submit written questions to U.S. detainees in Cuba. However, the questions had to be asked by U.S. interrogators, who were told to send the defense team videotapes of the interviews. The process was cut short when Lindh pleaded guilty.

If the Justice Department cannot resolve the witness access question, the case may be moved to a military tribunal, where rules allow greater secrecy.

One government official, who spoke only on condition of anonymity, said it will be a challenge for the Justice Department to satisfy federal judges that Moussaoui can get a fair trial and reasonable access to witnesses within the civilian court system.

Moussaoui, a French citizen, is the lone person charged in the United States as a conspirator with the Sept. 11 attackers. He has been granted the right to represent himself, but has no access to classified information. A team of court-appointed lawyers, working on his behalf, is cleared to see classified material.

The case, tentatively scheduled for opening statements in October, reached a crossroads recently. U.S. District Judge Leonie Brinkema, in Alexandria, Va., issued a secret order granting more access to Binalshibh than the government could accept. Prosecutors challenged the order in the 4th U.S. Circuit Court of Appeals.

The access issue in Moussaoui's case could break new legal ground for terrorist cases because the government has created a new class of prisoners who also could be witnesses. They are captives like Binalshibh, who have not been granted constitutional protections and are considered highly valuable sources of intelligence in the war on terrorism.

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