ALEXANDRIA, Va. – Accused Sept. 11 conspirator Zacarias Moussaoui was inadvertently given classified FBI interview reports by the government, and authorities had to go into his cell and recover them, according to court papers released Thursday.
The government initially said two classified documents were in Moussaoui's possession, then acknowledged there were seven before finally determining there were 48.
After several increasingly anxious letters from prosecutors, U.S. District Judge Leonie Brinkema allowed U.S. marshals to recover all the FBI interview reports in Moussaoui's possession. All unclassified documents were ordered returned to the defendant.
Moussaoui, 34, goes on trial Jan. 6 on charges of conspiring with the Sept. 11 hijackers to commit terrorism.
After the searches of his cell began, Moussaoui chided the government with a "Motion to Expulse the United States from the Arabian Discovery Cave."
U.S. marshals at one point were unable to recover all the documents, according to a letter that Assistant U.S. Attorney Robert Spencer sent the judge Aug. 29.
"Despite their hard work and valiant effort, the Marshal's Service could not find two of the seven documents. Unfortunately, one of the remaining two documents is the most critical of the seven," Spencer wrote.
Brinkema issued an order Thursday that made public the correspondence on the matter. She said she agreed with Moussaoui's court-appointed lawyers that the government's letters to the judge had been kept secret solely to avoid embarrassment to prosecutors.
Further, she said, the government disclosed the classified nature of the materials in a pleading sent to Moussaoui, who is not supposed to see secret material in his case. The court-appointed lawyers, who assist Moussaoui while he represents himself, are cleared to see the material.
The documents "are the property of the United States and the court has authority to order that the property be returned to the United States," Spencer wrote the judge Sept. 5.
In a separate letter the same day Spencer wrote, "The defendant now has access to national security information. ... The access to this material by the defendant is a situation that, even if of our own making, is improper and unacceptable. Simply put, it is illegal and dangerous for the defendant to possess the material, and there must be some way that we can correct the situation."
The judge on Aug. 23 questioned why the government sought to tip off Moussaoui that the documents were classified since there was no indication on the records themselves of their secret nature.
"You may find in the final analysis that less harm will be done by not drawing the defendant's attention to these documents," the judge wrote.
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