updated 1/27/2005 7:56:40 PM ET 2005-01-28T00:56:40

Attorneys for terrorism suspect Zacarias Moussaoui told the Supreme Court that it was “offensive to the rule of law” to deny him access to al-Qaida witnesses who could aid his defense in a trial.

The written brief asked the court to hear arguments on whether Moussaoui could get a fair trial if faced with “a dangerous new loophole” to his constitutional right to call favorable witnesses.

An appeals court ruling denied him access to the witnesses on national security grounds, even though the government has said it would seek Moussaoui’s execution if he is convicted.

In most instances, constitutional challenges in criminal cases are heard after a defendant is tried and convicted. The lawyers said that in this case, it was important to present the arguments before trial to demonstrate that a defendant’s rights did not disappear, even in a case resulting from the terrorist attacks of Sept. 11, 2001.

Still awaiting trial after three years
Moussaoui, a French citizen, is the only U.S. defendant charged in an al-Qaida conspiracy to commit terrorism that includes the Sept. 11 attacks. He was arrested a month before the hijackings for immigration violations and has been in custody since then. No trial date has been set.

The arguments were filed with the court Jan. 10 , but the brief was not made public until Thursday so classified material could be deleted.

Repeating arguments that failed to persuade a federal appellate court to grant access to the three al-Qaida prisoners, the attorneys complained that the judges gave the government “absolute power to withhold ... exculpatory witnesses in a death penalty case without suffering sanctions.” The sanction the defense wants is elimination of the death penalty in the case.

The government had contended that it would jeopardize national security to make the al-Qaida prisoners available, even through a closed-circuit video hookup once proposed by the trial judge.

The appellate court’s solution was to have the government submit summaries of the prisoners’ statements during the trial as a substitute for testimony. The defense lawyers said that solution was not acceptable.

“In place of the constitutional protections that have been erected to give a defendant a fair trial, Moussaoui is told to just trust summaries authored by the government of what it says these witnesses would say,” the brief said. “Such a proposition is ripe for potential abuse — a proposition so offensive to the rule of law that the 4th Circuit [Court] does not even acknowledge that this is the rule it creates.”

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