Court throws out US appeal in September 11 conspiracy case

A FEDERAL appeals court yesterday dismissed the US Government’s appeal of a lower court order granting accused September 11 conspirator Zacarias Moussaoui the right to question a senior al-Qaida leader in US custody.

A three-judge panel of the 4th US Circuit Court of Appeals in Richmond, Vancouver, threw out the appeal on a technicality. It ruled that the US Justice Department was premature in appealing the trial judge’s order allowing Moussaoui to question September 11 organiser Ramzi Binalshibh by video link.

The judges said US District Judge Leonie Brinkema’s order cannot be appealed “unless and until the government refuses to comply and the district court imposes a sanction”. It is not enough, they said, that the government has made it known that it will refuse to produce Binalshibh for questioning under any circumstances.

To avoid a further delay of Moussaoui’s trial, the judges said they would expedite any subsequent appeal.

Moussaoui is the lone US defendant charged as a conspirator with the 19 September 11 hijackers. An acknowledged al-Qaida loyalist, Moussaoui has said he was to be part of a later attack in an operation outside the US and believes that Binalshibh will back up his claim that he was not involved in the September 11 attacks.

Judge Brinkema granted Moussaoui the right to question Binalshibh after Moussaoui and his court-appointed lawyers convinced the court that Binalshibh might support Moussaoui’s claim. The indictment in the death penalty case charges him with conspiring with the September 11 hijackers to kill Americans.

The interview was placed on hold, and the trial was postponed, when the US Government took the controversy to the federal appeals court in Richmond.

The three-judge panel called the appeal “one of extraordinary importance”. The judges said they were “prepared at this time to rule on the substantive questions before us”.

“However, we are compelled to conclude that we are without authority to do so because the order of the district court is not yet an appealable one,” the judges said.

The government contends that allowing Moussaoui to interview Binalshibh would cause irreparable harm to national security by interfering with Binalshibh’s interrogation in the war against terrorism.

The government had argued that it could appeal because Judge Brinkema’s decision authorised the disclosure of classified information, one of the exceptions in federal law to the requirement that only final orders in criminal cases can be appealed.

But the appellate panel disagreed, ruling that the exception applies only to instances where there is possible disclosure of classified information by the defendant to the public during a trial or pretrial proceeding.