The Justice Department yesterday refused to produce a key witness in
the case against Zacarias Moussaoui, defying a federal court order and
acknowledging that the judge will likely dismiss the indictment against
the only person charged in the United States in connection with the Sept.
11, 2001, terrorist attacks.
The government's action raises the possibility that the case against
Moussaoui could move to a military tribunal, but Justice Department
officials indicated last night that they were determined to keep it in the
civilian courts and that they intend to appeal any dismissal of the
charges to the U.S. Court of Appeals for the 4th Circuit.
But first, prosecutors must go before the federal judge who ordered
that they produce the witness, Ramzi Binalshibh, the self-described
planner of the Sept. 11 attacks on the World Trade Center and Pentagon.
U.S. District Judge Leonie M. Brinkema likely will impose sanctions for
the government's failure to allow Moussaoui and his attorneys to question
Binalshibh. The expected punishment is the dismissal of the charges, but
Brinkema could choose lesser consequences, such as removing the death
penalty as an option, reducing the charges or striking all mentions of
Binalshibh from the indictment.
The government's refusal to produce Binalshibh underscores the delicate
balancing act among lawyers and judges in the Moussaoui case. In a brief
filed in Alexandria last night, U.S. Attorney Paul J. McNulty told
Brinkema that her order "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."
Prosecutors had already appealed Brinkema's ruling to the 4th Circuit.
A three-judge panel earlier rejected the appeal on procedural grounds but
said the government could appeal again if Brinkema imposed sanctions for
defying her order. Those sanctions could come as early as today, but
Brinkema also could set a hearing date on the issue.
Yesterday, the slate of active 4th Circuit judges upheld the panel's
earlier ruling. But the court split 7 to 5 and issued a series of heated
opinions that highlighted how the case has raised new legal issues between
a defendant's constitutional rights and the government's national security
responsibilities. The judges also strongly hinted as to how they might
rule if the case comes before them again.
In a blistering dissent, Judge J. Michael Luttig accused Brinkema, the
three-judge panel and the rest of his colleagues of failing "to appreciate
the fragility of the intelligence-gathering process." Prosecutors have
called Binalshibh a key intelligence source, and they said that disrupting
his interrogation would irreparably harm national security.
"Because of this failure," Luttig wrote, "I believe my colleagues have
gravely underestimated the effect that their respective orders and
decisions have already had, and now will continue to have, on the Nation's
intelligence gathering during this critical period of our history, as we
wage war against terrorism."
Dissents were also authored by Judge J. Harvie Wilkinson III and Judge
H. Emory Widener Jr.
But William W. Wilkins Jr., the court's chief judge and a member of the
panel that issued the earlier ruling, asserted that he believed that "my
colleagues have allowed the importance of the issues involved in the
underlying merits of this appeal to cloud their judgment on the purely
legal question of jurisdiction."
"Siding with the Government in all cases where national security
concerns are asserted," Wilkins added, "would entail surrender of the
independence of the judicial branch and abandonment of our sworn
commitment to uphold the rule of law."
Less than 30 minutes after yesterday's 4th Circuit decision,
prosecutors made official what sources close to the case have been saying
for months: that they would refuse to produce Binalshibh for the
deposition ordered by Brinkema. They said the deposition "would involve an
admitted and unrepentant terrorist (the defendant) questioning one of his
al Qaeda confederates" and would result in the unauthorized disclosure of
The filing, written and signed by Assistant U.S. Attorney Robert A.
Spencer, said Attorney General John D. Ashcroft had signed a classified
affidavit objecting to the disclosure. "The government recognizes that the
Attorney General's objection means that the deposition cannot go forward
and obligates the court to now dismiss the indictment unless the Court
finds that the interests of justice can be served by another action,"
But Spencer also asked Brinkema to delay any action pending the
government's likely appeal to the 4th Circuit. Prosecutors also asked that
they be allowed to file legal arguments if Brinkema considers lesser
sanctions than dismissal.
Moussaoui, who is representing himself, and his legal team, which
Brinkema appointed as standby attorneys, contend that Binalshibh has
information vital to the defense. They also asked for access to other al
Qaeda witnesses, but Brinkema sided with the government in ruling that
they were not crucial to Moussaoui's defense. The indictment says
Binalshibh wired money to both Moussaoui and one of the Sept. 11 hijackers
-- potentially key evidence tying Moussaoui to the conspiracy. Moussaoui,
a French citizen, was indicted in December 2001 on charges of conspiring
with al Qaeda in the Sept. 11 attacks. He faces the death penalty if