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Openness issues affect all aspects of Moussaoui trial

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Openness issues affect all aspects of Moussaoui trial

  • Despite the existence of a significant number of classified materials in the case of Zacarias Moussaoui, the Justice Department says it can prosecute Moussaoui fairly using unclassified evidence, but the media is still fighting for access to trial documents and appellate arguments.

April 16, 2003 — A federal appeals court in Alexandria (4th Cir.) ruled Tuesday that the government should be allowed to propose alternatives to a January trial court order that allowed accused al-Qaida conspirator Zacarias Moussaoui’s attorneys to interview Ramzi Bin al-Shibh, the alleged planner of the September 11 attacks. The court, however, did not address a media petition for access to the appellate proceedings and other filings.

Moussaoui had sought to question Bin al-Shibh, arguing that the al-Qaida operative could help his defense. U.S. District Judge Leonie M. Brinkema agreed and, in a sealed order, told the government to allow Moussaoui’s attorneys access to Bin al-Shibh. The government objected and appealed to the Fourth Circuit, which Tuesday sent the case back to the federal district court in Alexandria.

In another matter relating to Moussaoui’s case, earlier this week, the Justice Department said that it is “fully confident” that it would be able to try Moussaoui in a civilian court with unclassified evidence that proves he “was preparing to fly an airliner into a building in the United States.”

The brief filed by prosecutors Monday at the direction of Brinkema, responded to a complaint filed by Moussaoui saying that “the Government has changed its theory on the defendant’s role in the September 11 attacks and that, because of the existence of classified material in this case, he would not have learned of the Government’s theory until ‘the opening statement at trial.'”

The case contains a significant amount of classified information, but prosecutors state that Moussaoui has been given more evidence than he is entitled to and that his Sixth Amendment rights have not be violated.

The existence of classified materials “should not breed skepticism about the propriety of prosecuting this case in this Court,” the government wrote in its brief. “On the contrary, the challenge itself invites a reaffirmation of the ability of the courts to try complex criminal cases like this one, even when it involves a contumacious pro se defendant and even when it involves national security information or other complex issues.”

In a separate brief also filed Monday, Moussaoui’s stand-by counsel supported a request by news organizations last week to open proceedings and release court documents to the public. Eleven media organizations, including The Reporters Committee for Freedom of the Press, asked the federal district court to end the secrecy surrounding this case by ordering the release of documents and calling for public access to further proceedings. When the court has reason to close either documents or proceedings, the media requested that the court publicly explain each closure.

(United States v. Moussaoui; Media counsel: Jay Ward Brown, Levine Sullivan & Koch, Washington, D.C.) JL

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© 2003 The Reporters Committee for Freedom of the Press

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