WASHINGTON – The U.S. Supreme Court on Monday declined to settle a long-running dispute in the government's case against terror suspect Zacarias Moussaoui (search).
In refusing to hear Moussaoui's appeal, the justices let stand a 4th U.S. Circuit Court of Appeals (search) ruling that kept the death penalty in play and ordered a compromise on Moussaoui's access to top-ranking Al Qaeda (search) figures that are in U.S. custody.
Moussaoui, a 36-year-old French national, is the only person charged in connection with the Sept. 11, 2001, terror attacks in the United States. Once regarded as a legal slam-dunk by federal prosecutors, the case has proven anything but.
At issue in Moussaoui's appeal is his Sixth Amendment-guaranteed right to witnesses that could potentially exonerate him. Moussaoui, who was detained by the FBI a month before the attacks after flight school instructors became suspicious of him, was initially thought of as the "20th hijacker." Some U.S. intelligence officials have since come to believe he was not included in the Sept. 11 plot.
U.S. District Judge Leonie Brinkema, who has presided over his case from the start, has indicated that two Al Qaeda chiefs in U.S. custody — Sept. 11 mastermind Khalid Shaikh Mohammed (search) and Ramzi Binalshibh (search), who helped plan the attacks — would, if given the opportunity, testify that Moussaoui was not part of the plot.
Moussaoui, who is outspokenly loyal to Al Qaeda, was reportedly deemed too unstable by Sept. 11 planners, according to officials familiar with Mohammed's and Binalshibh's interrogations. There is evidence he was on Al Qaeda's payroll, but the cash may have been to retain him for other attacks, some U.S. intelligence officials believe.
Still, the U.S. government has repeatedly defied Brinkema's orders to produce direct access to Mohammed and Binalshibh. In October 2003, Brinkema responded by prohibiting the government from seeking the death penalty for Moussaoui, citing due process.
Last September, the 4th Circuit rejected Moussaoui's argument that the restrictions on witness testimony made him ineligible for capital punishment. Moussaoui's attorneys had argued that if the court would not permit testimony that could disprove the more serious charges against their client, then the death penalty must be taken off the table.
The 4th Circuit also rejected Brinkema's request that Moussaoui be allowed to question Mohammed and Binalshibh via remote video hookup, with a time delay so classified information could be censored. The court instead instructed the prosecution to craft written testimony from witnesses under Brinkema's supervision — an order Moussaoui's attorneys found particularly offensive.
"Moussaoui is told to just trust [redacted] summaries authored by the Government of what it says these witnesses would say. Such a proposition is ripe for potential abuse," the attorneys wrote in their filing to the Supreme Court.
Brinkema has also aired concerns about the nature of the written testimony. Testimony obtained through torture is inadmissible in American courts.
The Justice Department countered that allowing direct access to the detainees "would cause the United States irreparable harm in the war against Al Qaeda." Moreover, lawyers said, the government must be allowed to interrogate such valuable suspects without undue interruption.
The Supreme Court's rejection of Moussaoui's appeal means his trial could start as early as this fall.
"We are pleased with today's action by the U.S. Supreme Court, which once again affirms our belief that the government can provide Zacarias Moussaoui with a fair trial while still protecting national security interests," Justice Department spokesman Bryan Sierra said.
Legal scholar Jonathan Turley (search) said the high court rarely takes up cases before a trial has taken place. In addition, "the court is particularly leery of taking national security cases until the record is complete," said Turley, a professor at the George Washington University Law School.
Turley added that the case has gotten far away from the Justice Department, and has proven to be an "international embarrassment."
"The federal judge has repeatedly told the government that it would be better to secure a life sentence," Turley said. "He could've been serving a life sentence for two years now."
Even if the government can't prove Moussaoui had a direct role in the Sept. 11 attacks, his open allegiance to Al Qaeda and evidence indicating he was plotting an attack of some kind guarantee a conviction on other terror-related charges.
There is "no chance" the government will drop its capital charges, Sierra said.