U.S. Loses Moussaoui Ruling/Federal Court grants 9/11 suspect access to al Qaeda witness/washingtonpost/June 26

http://www.washingtonpost.com/wp-dyn/articles/A34808-2003Jun26.html?nav=hptop_tb

washingtonpost.com

Federal Court Dismisses Appeal in Moussaoui Case

By Jerry Markon
Washington Post Staff Writer
Thursday, June 26, 2003; 3:02 PM

A federal appeals court dealt a blow to the case against alleged Sept. 11 conspirator Zacarias Moussaoui today, dismissing a government appeal of a ruling that granted him access to a key al Qaeda witness.

The U.S. 4th Circuit Court of Appeals based its ruling on jurisdictional grounds, with a three-judge panel saying it is "compelled to conclude that we are without authority" to rule on the appeal because the lower-court ruling granting access is not a final one.

The ruling could have major implications for the continued prosecution of Moussaoui, a French citizen who is the only person charged in the United States in connection with the Sept. 11, 2001, attacks on the World Trade Center and Pentagon. Government officials have said they will likely move the case to a military tribunal if they lose the appeal, which could imperil future prosecutions of other terrorism suspects in the civilian court system.

Moussaoui had sought access to Ramzi Binalshibh, the self-described coordinator of the attacks, to help prepare his defense. U.S. District Judge Leonie M. Brinkema in Alexandria in late January allowed a deposition of Binalshibh. But the government strongly objected on national security grounds, saying a deposition would disrupt a vital interrogation and threaten national security.

The 4th Circuit's decision throws the issue directly back at the Bush administration.

Until the government refuses to comply with Brinkema's decision on granting access to Binalshibh and is sanctioned by the court, the 4th Circuit said, Brinkema's decision will not become final. Only then would the 4th Circuit have jurisdiction to rule on the "substantive issues" underlying the appeal, the court said.

Sources have said the government will indeed refuse to turn over Binalshibh for a deposition, and the judges said in their order that there are "indications" that the government "will refuse to produce the enemy combatant witness under any circumstances.''

Barbara Comstock, director of public affairs for the Department of Justice, said in a statement that "the court has not yet ruled on the merits of the issue -- access to an alien seized abroad as an enemy combatant in the midst of a war. Rather, the opinion addresses certain threshold procedural and jurisdictional matters, which we are studying. We look forward to bringing Zacarias Moussaoui to justice."

Two of Moussaoui's court-appointed lawyers, Edward B. MacMahon Jr. and Frank W. Dunham Jr., said in a statement: that they are "pleased that the court accepted our argument that there is no jurisdiction at this time to hear the appeal. We are prepared to proceed in the district court consistent with the opinion.''