By GREG GORDON
January 26, 2006
It could not immediately be determined whether the ruling by U.S. District Judge Leonie Brinkema of Alexandria, Va., will create a significant, 11th-hour snag over protection of classified data in the only U.S. prosecution to stem from the suicide hijackings.
The ruling could create a legal showdown, for example, if it requires intelligence agencies to produce classified information that they consider too sensitive to release, even to defense lawyers with government security clearances.
Jury selection is set to begin on Feb. 6, with opening arguments slated for March 6 in a sentencing trial to determine whether Moussaoui, who pleaded guilty to six conspiracy counts last April, should live or die.
Defense lawyers asked the court last week to compel the government to release the intelligence assessments and an array of other documents shedding light about what U.S. counter-terrorism officials knew of al Qaeda's plans before the attack.
Brinkema said in her ruling, issued Tuesday and made public Wednesday in declassified form, that the intelligence assessments are "highly relevant" to the case.
She also ruled that the defense is entitled to copies of additional material surrounding the Minnesota arrest and investigation of Moussaoui and the government's tracking of two suicide hijackers who slipped into the United States in early 2000.
Moussaoui, who was arrested while learning to fly a jumbo jet at a Twin Cities flight school, has denied knowing details of the Sept. 11 plot despite his guilty plea.
Prosecutors contend that Moussaoui should be sentenced to die because he lied when he was interrogated by Minneapolis FBI and immigration agents after his arrest on Aug. 16, 2001, and failed to disclose his role in the hijacking conspiracy. They say they will prove beyond a reasonable doubt that if he had revealed the plot, the government would have been able to stop the attack or limit the toll of nearly 3,000 deaths when hijacked planes slammed into the World Trade Center, the Pentagon and the Pennsylvania countryside.
Defense lawyers sought the pre-Sept. 11 records for the first phase of the two-stage trial, when a jury will be asked to determine whether he is eligible for a death sentence. Moussaoui's lawyers argue that counter-terrorism officials overlooked clues and made so many other missteps before the attacks that they never would have thwarted the attacks, even if Moussaoui had told them all he knew.
If the government complies with Brinkema's ruling, it could give defense lawyers new ammunition in their efforts to show that U.S. counter-terrorism agencies and national security officials knew more about the suicide hijacking scheme than Moussaoui did, and that his assistance wouldn't have changed the outcome. The threat assessments presumably were reviewed by the Sept. 11 Commission, which said in its public report in 2004 that U.S. intelligence agencies received a stream of warnings in the spring and summer of 2001 that al Qaeda was planning "something very, very, very big"
If the government fails to produce the records, Brinkema could issue a sanction, such as dismissing the case. In that event, prosecutors could ask an appeals court to intervene in the case for a third time or drop the charges. Even if the government scuttled the case, Moussaoui would face a minimum sentence of life in prison without parole.
The four-year-old case has been delayed repeatedly by legal tangles over classified information, though the 28-year-old federal Classified Information Procedures Act offers methods for moving ahead by using substitute language to shield national security secrets.
A Justice Department official declined to comment on Brinkema's ruling.
"I won't discuss it under any circumstances," said Edward MacMahon, a lawyer for Moussaoui.
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