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. Last Updated: 07/27/2016

Terror Case Could Be Dropped

WASHINGTON -- The U.S. Justice Department said it would defy a court order and refuse to make a captured member of al-Qaida available for testimony in the case of Zacarias Moussaoui.

The department acknowledged that its decision could force a federal judge to dismiss the indictment against Moussaoui, the only person facing trial in the United States in connection with the attacks of Sept. 11, 2001.

In court papers, the department said Attorney General John Ashcroft had determined that testimony from the accused terrorist, Ramzi bin al-Shibh, a confessed participant in the Sept. 11, 2001, attacks, "would necessarily result in the unauthorized disclosure of classified information" and that "such a scenario is unacceptable to the government."

U.S. administration officials have said for months that if Moussaoui's indictment were dismissed, his prosecution would almost certainly be moved to a military tribunal, where Moussaoui would be expected to have fewer rights to gather testimony from witnesses like bin al-Shibh.

"The government recognizes that the attorney general's objection means that the deposition cannot go forward and obligates the court now to dismiss the indictment unless the court finds that the interests of justice can be served by another action," the department said in the papers filed in Federal District Court in Alexandria, Virginia.

The Justice Department's decision had long been expected and came after extended courtroom battles before Judge Leonie Brinkema, the trial judge, in which the department insisted that testimony from bin al-Shibh would damage national security. Brinkema had set a deadline of Monday for the department to state its plans for the case.

Bin al-Shibh, of Yemen, was captured last year in Pakistan. He is identified in Moussaoui's indictment as the go-between for Moussaoui and the Sept. 11, 2001, hijackers.

Administration officials say they are worried that if Moussaoui is allowed to interview bin al-Shibh, it will open the door for other terrorist suspects to demand access to captured al-Qaida members, undermining those prosecutions as well.

Despite the government's objections, Brinkema has ruled that Moussaoui, who has pleaded not guilty and is facing the death penalty, has a constitutional right to question bin al-Shibh, and the U.S. Court of Appeals for the Fourth Circuit, in Richmond, Virginia, has declined to overrule her decision.

In its latest rulings, the appeals court said Monday that it had rejected a government motion that would have effectively frozen activity in Brinkema's court.

On a 7-5 vote, the court also turned down a Justice Department request that the full court reconsider a decision made last month by a panel of three of its judges that upheld Brinkema's decision to allow Moussaoui access to bin al-Shibh. The three-judge panel said that, at this point in the pre-trial preparations, it had no jurisdiction to intervene.

In penalizing the department for its refusal to produce bin al-Shibh, the judge has options apart from dismissing the entire case, including dismissal of some of the charges; she could also allow the trial to go forward but with a requirement that the jury be given instructions that would be damaging to the prosecution's case.

The department said that the decision to block bin al-Shibh's testimony had been made by Ashcroft, and that his reasoning was explained in a classified affidavit filed with Brinkema.

"The government has established the damage to national security that such a deposition would cause," the department said. "The deposition, which would involve an admitted and unrepentant terrorist (the defendant) questioning one of his al-Qaida confederates, would necessarily result in the unauthorized disclosure of classified information.

"Such a scenario is unacceptable to the government, which not only carries the responsibility of prosecuting the defendant, but also of protecting this nation's security at a time of war with an enemy who has already murdered thousands of our citizens."

Moussaoui, a French citizen who was arrested in Minnesota on immigration charges in August 2001, has acknowledged that he is a member of al-Qaida and is loyal to Osama bin Laden. But he has insisted that he had nothing to do with the Sept. 11, 2001, attacks, a claim he has repeatedly made in handwritten court motions. Moussaoui, who is trying to act as his own lawyer, has said that bin al-Shibh has information that could prove his innocence.