updated 3/21/2005 12:02:19 PM ET 2005-03-21T17:02:19

The Supreme Court on Monday declined to hear the appeal of terror suspect Zacarias Moussaoui, the only defendant charged in the United States in the Sept. 11, 2001 terror attacks.

Justices let stand a lower court ruling that allowed the government to pursue the death penalty while restricting Moussaoui's direct access to three al-Qaida terror captives. The lower court, citing national security concerns, said Moussaoui could use government-prepared summaries from the captives but not interview them.

The Supreme Court's move Monday now shifts the case back to trial court, where U.S. District Judge Leonie Brinkema in Alexandria, Va., must oversee the crafting of summaries and other classified information. A trial could begin as early as September.

His lawyers had questioned whether Moussaoui’s constitutional rights would be violated if the defense was forced to rely on government-prepared summaries of interrogation statements from three al-Qaida captives.

A federal appeals court had approved use of the summaries after the government argued that more direct access to al-Qaida leaders — or even their classified interrogation statements — would jeopardize national security.

The lawyers said it was unconstitutional to force Moussaoui to rely on “summaries of classified documents containing information from unnamed, unsworn government agents purporting to report unsworn, incomplete, non-verbatim accounts” of witness statements.

Moussaoui, a French citizen, was indicted in December 2001, and remains the only U.S. defendant charged in an al-Qaida conspiracy that includes the Sept. 11 attacks. The defendant has acknowledged his loyalty to Osama bin Laden but denies he was to have any role in the 2001 airplane hijackings.

Appeals lower-court ruling
The lawyers appealed a ruling from the 4th U.S. Circuit Court of Appeals, which would allow Moussaoui access to the summaries but still refuse direct access to the al-Qaida witnesses. The ruling also allows prosecutors to seek the death penalty.

The lawyers said Moussaoui was denied rights under the Sixth Amendment, which allows defendants to compel testimony in their favor; the Fifth Amendment guarantee that defendants should not be deprived of life, liberty or property without due process of law; and the Eighth Amendment, banning cruel and unusual punishment.

The lawyers proposed answers to the questions of whether the Sixth Amendment lets a death penalty case to go forward when direct testimony is replaced by the government-prepared, written summaries; and whether the death penalty can be pursued when a defendant is denied, under the Fifth and Eighth Amendments, access to government-held information that could exonerate him or spare him from execution.

Trial judge sided with Moussaoui
Brinkema disagreed with the government’s position that national security concerns prevented direct access to the witnesses or their statements.

She penalized the prosecution for defying her orders to grant Moussaoui access to the witnesses — eliminating both the death penalty and any evidence related to the Sept. 11 attacks. To reach that conclusion, Brinkema found that the three al-Qaida witnesses had made statements that backed Moussaoui’s contention that he was to have no role in the Sept. 11 attacks.

The appellate court dismissed those penalties, but upheld Moussaoui’s legal arguments. The court found there is no national security exception to a defendant’s right to exculpatory information, and said the government’s refusal to produce the witnesses in defiance of Brinkema’s order would normally lead to dismissal.

Nonetheless, the appeals court kept the case alive and ordered a compromise — allowing use of the government-prepared summaries.

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