WASHINGTON - From the start, the case of
Zacarias Moussaoui hasn't gone as the Bush administration
Although Moussaoui, a non-lawyer, is representing himself and
admits he is a member of al-Qaida who is loyal to Osama bin Laden,
he has improbably grabbed the upper hand in his struggle against
A federal judge says Moussaoui must have a crack at questioning a
self-described al-Qaida organizer who Moussaoui claims could help
clear him of involvement in the Sept. 11 terror attacks. That ruling
put government prosecutors over a barrel and could spell the end of
the criminal case against Moussaoui before it ever goes to
"Their backs are against the wall," said Andrew McBride, a former
federal prosecutor in the same suburban Washington courthouse where
Moussaoui stands accused as the only person charged in the United
States with involvement in the Sept. 11 attacks.
Moussaoui remains in jail, and even if the government loses the
current battle it isn't about to let him go. His case could be
transferred to a military tribunal, where constitutional protections
are fewer and national security concerns probably would be
considered more important than a defendant's traditional rights
under the Constitution.
In the meantime, the government says the interview Moussaoui
seeks with the al-Qaida organizer is an unacceptable national
security risk. Prosecutors this week defied the trial judge's order
on the subject, saying they understood this could lead to dismissal
of the case.
U.S. District Judge Leonie Brinkema could also force prosecutors
to drop the threat of a death sentence if Moussaoui were to be
convicted, or pare back the charges against him, lawyers said.
Either scenario could be a victory for Moussaoui, who once tried
to plead guilty on condition he would escape execution. He backed
out when the judge explained that he had to admit involvement in the
main terrorist conspiracy. Moussaoui says he is a member of al-Qaida
but was not part of the bombing plot that killed thousands in New
York and Washington.
Moussaoui has said he was to be part of a later attack in an
operation outside the United States and believes that Ramzi
Binalshibh would back up his claim.
The Constitution guarantees that defendants in criminal trials
have the right to seek evidence that could help their defense.
"They can't have it both ways," Ronald Allen, who teaches
criminal law at Northwestern University's law school, said of the
prosecutors. "They can't on the one hand expect to try him in the
regular criminal justice system and then on the other hand not give
him his full panoply of constitutional rights."
If Moussaoui avoids trial on some or all of the criminal charges
he will be an unlikely legal success story. He fired a seasoned team
of defense lawyers appointed to take his case for free, and is
representing himself in court. He has filed a welter of often
confusing legal motions. He calls the judge and appointed lawyers
Moussaoui has a basic grasp of legal issues and has made what
lawyers say are astute arguments, a surprise to some since he was
not raised in the United States and his native tongue is French.
Still, he can't claim much credit for the government's current
predicament, former prosecutors and defense lawyers said.
"It's unfounded to think this is part of a brilliant strategy he
has contrived himself," said former government special prosecutor
Philip Allen Lacovara.
"He is the beneficiary of a legal system that bends over backward
to protect the rights of the accused when faced with the
overwhelming power of the government."
Moussaoui also benefits from the appointed lawyers, who have been
filing motions as if they were the only legal representatives. The
lawyers pointed out in a recent filing that one of their motions led
to the judge's order allowing Moussaoui to question Binalshibh.
"Standby counsel used the classified ... information to make a
substantial showing to the district court that the witness
(Binalshibh) had significant material, exculpatory information
essential to the defense," a recent defense filing said.
The Moussaoui case has taken some strange twists. Trial dates
have been set and scratched repeatedly as Brinkema has dealt with
numerous motions from both sides.
The government has argued that national security would be
irreparably harmed if its interrogation of Binalshibh in an overseas
location were interrupted.
There is no likelihood that the government would bring Binalshibh
to the United States for Moussaoui's case, but any pretrial
questioning through a satellite hookup could be played for a jury -
something the government is trying to prevent.
"I think he has a good argument on the merits of this issue,"
said Barbara Bergman, a defense lawyer for convicted Oklahoma City
bombing conspirator Terry Nichols. "Here's a man who's on trial for
his life in a court system that may seem unfair to him, although at
the moment it seems to be supporting his arguments."