ALEXANDRIA, Va. – An Al Qaeda (search) captive is likely to testify that Zacarias Moussaoui (search) was not contacted by the network to participate in the Sept. 11 (search) attacks, supporting the suspected terrorist's claim that he was not part of the plot, a federal judge said.
By testifying that Moussaoui was not even contacted about the plot, the witness would go further than the defendant's oft-stated contention that he had no role in the attacks.
U.S. District Judge Leonie Brinkema (search) cited the likely testimony to justify giving Moussaoui access to the prisoner for pretrial testimony and possibly as a trial witness. She also granted access to a second Al Qaeda prisoner who would support Moussaoui's contention he was not part of the attack conspiracy.
The names of the prisoners were blacked out in the order written Friday and released Wednesday. News reports last week identified them as a mastermind of the plot, Khalid Shaik Mohammed, and Mustafa Ahmed Hawsawi, an alleged paymaster for the 19 hijackers.
One of the witnesses "supports the claim that Moussaoui was not part of the Sept. 11 plot because the defendant was in the United States at the time, but was not contacted," Brinkema said.
This is the second time the judge has granted Moussaoui -- an acknowledged Al Qaeda loyalist -- access to his former colleagues. The government has contended national security would be irreparably damaged and has defied Brinkema's order to produce a witness, former Al Qaeda operative Ramzi Binalshibh.
Brinkema is expected to impose penalties against the government for its defiance, a move that could lead to intervention by a federal appeals court.
Moussaoui is representing himself and also has a team of court-appointed lawyers in the only U.S. prosecution to result from the Sept. 11 attacks.
Moussaoui was indicted in December 2001, charged with participating in a broad conspiracy to commit terrorism. A trial has been delayed indefinitely over the witnesses access question. The court-appointed lawyers and Moussaoui have argued for the defendant's Sixth Amendment's right to witnesses who could aid his case and save him from a death sentence.
The government has argued Moussaoui has no constitutional right to compel testimony of enemy combatants captured in the theater of war and detained abroad.
"The court concludes detainees will likely be able to provide exculpatory testimony which the defendant has a constitutional right to present to the jury at trial," Brinkema wrote in her opinion.
She repeated her finding in granting access to Binalshibh: "National security concerns do not outweigh the defendant's Sixth Amendment right to compel trial appearances of witnesses in his favor."
The defense was obligated to demonstrate the witnesses could help Moussaoui. The judge said the lawyers met that test.
The government's refusal to produce Binalshibh for questioning is expected to trigger an order by the judge to penalize the prosecution. Penalties could range from barring certain testimony to dismissal of the indictment.
Sanctions would likely trigger intervention by the 4th U.S. Circuit Court of Appeals in Richmond, Va.
The court already has heard oral arguments on the witness access question, but decided not to intervene until Brinkema proceeded with sanctions.
The judge gave the government until Friday to propose a substitute method for Moussaoui to gain access to statements of Mohammed and Hawsawi. Both men are being held in undisclosed locations.
In Binalshibh's case, the government attempted to substitute summaries of the prisoner's statements. The judge rejected the plan. She said the witnesses should be made available by Dec. 5.