Appeal hearing crucial in US war on terror

A US appeals court is hearing arguments today on whether the US government should be barred from seeking the death penalty for accused September 11 plotter Zacarias Moussaoui because it refused a judge’s order to produce al-Qaida defence witnesses.

The hearing has far-reaching implications for the war on terror.

Three appeals court judges in Virginia will conduct separate open and closed proceedings, the latter to discuss classified matters concerning al-Qaida prisoners the defence wants to question.

Judge Leonie Brinkema has sided with Moussaoui, accused of conspiring in the September 11 attacks, on several crucial pre-trial rulings. Those rulings are the basis for to the appeal.

First, Brinkema issued two separate orders that would allow the Moroccan-born French citizen access to three al-Qaida prisoners held abroad.

The government refused to make the captives available, citing national security. To punish the prosecutors, Brinkema eliminated any evidence that could link Moussaoui to the suicide hijackings and barred the death penalty in his case.

The outcome of these pre-trial disputes could determine the US government’s ability to prosecute terrorist suspects in civilian courts.

If Moussaoui should win access to al-Qaida captives, future terrorism defendants could ask for the same consideration and probably force the US to drop some prosecutions or move them to military courts, where national security would be paramount.

The US says Moussaoui, 35, who admits to being a member of Osama bin Laden’s network, is trying to injure national security indelibly by questioning al-Qaida captives, who may reveal classified information that could help other terrorists.

The defence contends the US government is preventing Moussaoui from exercising his Sixth Amendment constitutional right to call favourable witnesses, who might back up his contention that he was not part of the September 11 conspiracy.

“The appeal is not just about trying a non-citizen who is an admitted member of al-Qaida,” said Timothy Lynch, director of the project on criminal justice at the Cato Institute, a Washington think tank.

“This case is about, more broadly, the rights of any person who is accused of being involved in terrorism and whether that person, even if an American citizen, will be able to call witnesses he thinks can establish his innocence,” Lynch said.

Legal observers expect a monumental legal battle that could reach the Supreme Court.

“This is Gettysburg,” Vermont Law School professor Michael Mello said, comparing the Civil War battle that turned the tide for the North to a case that might determine the government’s success in the legal war on terror.

“The whole point of the prosecution is to demonstrate to the world that Zacarias Moussaoui was implicated in September 11,” Mello said.

“It was to put all the hijackers on trial, to put Osama bin Laden on trial. “Telling (Attorney General) John Ashcroft that he can’t kill Zacarias Moussaoui is worse than telling him you can’t try him at all.”

Arrested a month before the attacks, Moussaoui contends he was to be part of a later al-Qaida operation. The government says he may have planned to fly a plane into the White House.