US refuses to allow questioning of al-Qaida prisoner
The move could lead to charges against the accused man being dropped, and him instead being tried in a military court. The eventual outcome of this dispute could affect future cases by deciding whether terrorism defendants will have access to enemy combatants, especially those being held in secret locations overseas.
Should the courts decide a defendant's access to favourable witnesses trumps national security concerns, the US Government could bring all future terrorism proceedings before military tribunals.
The justice department acknowledges its defiance of a judge's order may cause dismissal of charges against accused September 11 conspirator Zacarias Moussaoui, but says it won't produce an al-Qaida prisoner for questioning by the defendant.
The US Government notified the trial judge on Monday that it wouldn't budge in its refusal to let Moussaoui, an acknowledged al-Qaida loyalist, interview a former superior suspected September 11 attack co-ordinator Ramzi Binalshibh.
US District Judge Leonie Brinkema can now penalise the government, but the ultimate sanction of dismissal is not her only option.
While dismissal could ultimately lead to prosecution by a military tribunal, the judge could take less drastic steps. She could throw out some charges, exclude government evidence or instruct jurors that the government refused to provide certain evidence.
Prosecutors said they're banking on the 4th US Circuit Court of Appeals to uphold their argument that any comments by Binalshibh to Moussaoui would jeopardise national security, especially if they're played at Moussaoui's trial on charges of conspiring with the September 11 hijackers to commit terrorism and hijack airplanes.
Chief judge William Wilkins warned the court would not blindly accept government claims of national security.
"Siding with the government in all cases where national security concerns are asserted would entail surrender of the independence of the judicial branch and abandonment of our sworn commitment to uphold the rule of law," Judge Wilkins said.
The government said it recognises that its objection means the deposition of Binalshibh cannot go forward, and that the decision "obligates the court now to dismiss the indictment unless the court finds that the interests of justice can be served by another action".
US Attorney General John Ashcroft has repeatedly said he wants to continue the prosecution in the civilian court system, although military tribunal rules would be more favourable to the government.
