CNN | June 3, 2003
By Phil Hirschkorn and Kelli Arena

RICHMOND, Virginia (CNN) -- The government Tuesday declared a top al Qaeda captive an "unavailable witness" in the lone U.S. prosecution stemming from the September 11, 2001 terrorist attacks.

Attorneys for the defendant, Zacarias Moussaoui, argued that the government has to consider dropping the case against Moussaoui altogether.

Moussaoui, a French citizen, is the only U.S. defendant accused of conspiring with the 19 September 11 hijackers to participate in terrorist attacks and hijack airplanes. Moussaoui, who was in custody on September 11, contends he was not part of the plot that day and actually was to join a later operation outside the United States.

On Tuesday the Moussaoui case went before a three-judge panel of the 4th U.S. Circuit Court of Appeals, which is reviewing an order by the trial judge to allow Moussaoui to conduct a live video deposition with alleged September 11 attack coordinator Ramzi Binalshibh, a Yemeni national being detained as an enemy combat at a military installation outside the United States.

Assistant Attorney General Michael Chertoff argued that any testimony by Binalshibh would compromise national security.

"The damage to the United States would be immediate and irreparable," Chertoff said.

Chertoff told the panel that no defendant and no judge has the right to force the government to produce a foreign national who is in military custody, and that the order by U.S. District Judge Leonie Brinkema compelling the government to produce Binalshibh was a "invalid exercise of judicial power."

Moussaoui "does not have the constitutional right to force the American military to compromise or alter its operations overseas," Chertoff said, adding that it was a "happenstance" that Binalshibh was caught in Pakistan last year.

Due process v. national security

Attorneys for Moussaoui said the defendant's pre-existing constitutional right to a fair trial depends on calling witnesses who have exculpatory information -- witnesses such as Binalshibh, who the defense claims has said that Moussaoui was not a participant in the September 11 conspiracy.

But Chertoff said the court lacks the power to require a non-citizen to appear in court, and under normal circumstances, the court would have "turned him [Moussaoui] away at the door."

It was revealed at Tuesday's session that Attorney General John Ashcroft has said in an affidavit that he will not make Binalshibh available.

In addition to Binalshibh, Moussaoui had petitioned the court for access to four other al Qaeda notables. Tuesday, it was revealed that although Brinkema granted access to Binalshibh in January, she rejected his request for access to two of those men, Abu Zubaydah and Ibn Shaikh al-Libi, who oversaw training camps in Afghanistan.

Both men are being detained at undisclosed military locations. It is not known why Brinkema rejected the petitions.

Chertoff said the Brinkema order forced the government to choose whether to "sacrifice its ability to defend the country" or "renounce its ability to prosecute these cases."

'Surrender the case or surrender the information'

Frank Dunham, arguing on Moussaoui's behalf, said the court did indeed have the power to require the government to produce the witness, and "it doesn't matter where in the world he happens to be."

If a witness such as Binalshibh is in custody and in U.S. control, Dunham said, the location of the witness is "immaterial."

The linchpin of the government's argument, Dunham said, is its claim that pretrial access to Binalshibh would interfere with overseas military operations, namely the ongoing war on terrorism.

He said the government had put Binalshibh "off-limits" and declared him an enemy combatant. Dunham told the panel that the government has a choice: to continue with the prosecution or abandon it if the disclosures Binalshibh might make in court would damage national security.

"Surrender the case or surrender the information," Dunham said.

Moussaoui was seeking Binalshibh's testimony so "the jury might evaluate his demeanor," Dunham said, and therefore, government-written summaries of Binalshibh's information were inadequate.

Arguments focus on power to compel government

The sticking point in the hour of oral arguments open to public view Tuesday was not whether Moussaoui had the right to call a captive such as Binalshibh as a witness, but whether the courts have the power to force the executive branch to turn him over.

"This is an unavailable witness," Chertoff said. "The court has no power to require access."

He said the government strongly disputed that Binalshibh's information would exonerate Moussaoui of the charges against him. Details to support his point were given in a separate hour-long session closed from public view as both sides argued the merits of the evidence, which remains classified.

Moussaoui was not in court Tuesday but listened to the arguments via a special telephone hookup in the Alexandria Detention Center.

Chertoff likened the defense position to "blackmail," saying any access to Binalshibh or other enemy combatants would be an "actual disruption of an active interrogation."

Dunham has suggested that the government may choose to declare Moussaoui an enemy combatant and move his case to a military tribunal.