By Pete Williams Justice correspondent
NBC News
updated 9/13/2004 5:59:02 PM ET 2004-09-13T21:59:02

A federal appeals court ruled unanimously Monday that lawyers for terrorism defendant Zacarias Moussaoui can use statements made to interrogators by captured al-Qaida detainees, finding that "enemy combatant witnesses could provide material, favorable testimony on Moussaoui's behalf."

But the three-member court panel split 2-1 in voting to allow the government to seek the death penalty if Moussaoui is convicted.

"We are pleased with today's 4th Circuit ruling, which once again affirms our belief that the government can provide Zacarias Moussaoui with a fair trial while still protecting national security interests," said Attorney General John Ashcroft.

The decision puts the long-delayed case back before a federal judge in Alexandria, Va., who must now fashion rules for presenting summaries to the jury of what the captured al-Qaida operatives said in custody.

Moussaoui's lawyers originally sought direct contact with the terror captives, including former top al-Qaida planner Khalid Sheikh Mohammed, but the government refused to permit it. Lawyers for both sides then battled for months over how to use statements given by the detainees to intelligence agencies.

Striking a balance
In Monday's ruling, the appeals court said it worked to strike a balance between Moussaoui's right to seek witnesses who could aid in his defense and the government's need to prevent further terror attacks.

"We must defer to the government's assertion that interruption" of the questioning of the detainees "will have devastating effects on the ability to gather information from them," the court said. Such a disruption "could result in the loss of information that might prevent future terrorist attacks."

Though the trial judge had ruled that no substitute for direct access to the detainees would permit a fair trial, the appeals court said summaries of their statements would be an adequate substitute.

Under rules imposed by Monday's ruling, only defense lawyers will be allowed to introduce excerpts from the summaries that they find helpful to Moussaoui. Prosecutors will be barred from introducing other excerpts which could cast doubt on his defense that he was unaware of the plans for the 9/11 attacks.

Moussaoui’s lawyers disappointed
Moussaoui's lawyers called the ruling disappointing, because it permits the government to seek the death penalty and to present its full array of 9/11 evidence — video of the World Trade Center towers collapsing, photos of victims, and audio recordings from the cockpits of the hijacked airplanes.

"A capital case is not the place to experiment with new rules of evidence," said Edward MacMahon, one of Moussaoui's court-appointed lawyers.

Federal Judge Roger Gregory dissented from the majority's decision to allow prosecutors to seek the death penalty.

"If Moussaoui must proceed to trial on the basis of substitutions rather than the witnesses' testimony, as we all agree he must, the death penalty should be removed from the range of possible sentences," he wrote.

Using summaries of what the al-Qaida operatives told intelligence interrogators, he said, "is a slim reed upon which to base a jury verdict, especially where a man's life hangs in the balance."

Pete Williams is NBC News’ justice correspondent.

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