WASHINGTON – Lawyers for Zacarias Moussaoui (search) petitioned the Supreme Court on Monday, challenging the government's right to put the terrorism suspect on trial while the defense had no access to potentially favorable Al Qaeda witnesses.
The written brief questioned whether Moussaoui's constitutional rights would be violated if the defense was forced to rely on government-prepared summaries of interrogation statements from three Al Qaeda (search) captives.
A federal appeals court has approved use of the summaries after the government argued that more direct access to Al Qaeda leaders — or even their classified interrogation statements — would jeopardize national security.
The lawyers said it was unconstitutional to force Moussaoui to rely on "summaries of classified documents containing information from unnamed, unsworn government agents purporting to report unsworn, incomplete, non-verbatim accounts" of witness statements.
Moussaoui, a French citizen, was indicted in December 2001, and remains the only U.S. defendant charged in an Al Qaeda conspiracy that includes the Sept. 11 attacks. The defendant has acknowledged his loyalty to Usama bin Laden (search) but denies he was to have any role in the 2001 airplane hijackings.
The lawyers appealed a ruling from the 4th U.S. Circuit Court of Appeals, which would allow Moussaoui access to the summaries but still refuse direct access to the Al Qaeda witnesses. The ruling also allows prosecutors to seek the death penalty.
Most of the written brief was not immediately made public because it includes classified information. However, an unclassified portion of the brief — obtained by The Associated Press — raised questions of whether Moussaoui would be denied his right to a fair trial under three sections of the U.S. Constitution.
Supreme Court spokeswoman Kathy Arberg said an unclassified version of the brief would be available in about a week.
The lawyers said Moussaoui was denied rights under the Sixth Amendment, which allows defendants to compel testimony in their favor; the Fifth Amendment guarantee that defendants should not be deprived of life, liberty or property without due process of law; and the Eighth Amendment, banning cruel and unusual punishment.
The lawyers posed these questions:
— Whether the Sixth Amendment permits a death penalty case to go forward when direct testimony is replaced by the government-prepared, written summaries.
— Whether the death penalty can be pursued when a defendant is denied, under the Fifth and Eighth Amendments, access to information in the government's possession that could exonerate him or spare him from execution.
The trial judge, Leonie Brinkema in Alexandria, Va., disagreed with the government's position that national security concerns prevented direct access to the witnesses or their statements.
She penalized the prosecution for defying her orders to grant Moussaoui access to the witnesses — eliminating both the death penalty and any evidence related to the Sept. 11 attacks. To reach that conclusion, Brinkema found that the three Al Qaeda witnesses had made statements that backed Moussaoui's contention that he was to have no role in the Sept. 11 attacks.
The appellate court dismissed those penalties, but upheld Moussaoui's legal arguments. The court found there is no national security exception to a defendant's right to exculpatory information, and said the government's refusal to produce the witnesses in defiance of Brinkema's order would normally lead to dismissal.
Nonetheless, the appeals court kept the case alive and ordered a compromise — allowing use of the government-prepared summaries.
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