Justice - Moussaoui can be tried in civilian court

ALEXANDRIA, Va. -- The Justice Department said Monday that accused terrorism suspect Zacarias Moussaoui's rights can be protected in a civilian court, signaling the government is not prepared to move the case to a military tribunal.

The department was responding to a stark warning nearly two weeks ago from U.S. District Judge Leonie Brinkema, who said she was disturbed by the government's "shroud of secrecy" toward Moussaoui and questioned whether his case could proceed in a civilian court.

"The government is fully confident that the court will be able to try this case consistent with the demands of the law," the prosecutors' written brief said.

The judge ordered the government to respond to Moussaoui, who is representing himself and complained he was not receiving enough information to craft a defense.

Moussaoui is not entitled to classified documents, and has made his defense more complicated by not cooperating with court-appointed lawyers who can see the secret material.

Nonetheless, the case has come down to a clash between a defendant's right to information that could help his defense and the need to safeguard national security.

Prosecutors said both could be protected, and argued they have turned over all the unclassified material that Moussaoui is entitled to have. Only unclassified documents would be used in a trial, they pointed out.

"He is not entitled to a preview of the government's theory in this case, or as the defendant put it, to the government's 'opening statement' to the jury," the brief said.

Brinkema, in addition to questioning the government's secrecy toward the defendant, has also ruled that Moussaoui can have access to at least one al-Qaida prisoner, suspected Sept. 11 coordinator Ramzi Binalshibh. Moussaoui has asked Brinkema for access to other prisoners, including the alleged mastermind of the attack, Khalid Shaikh Mohammed.

Prosecutors have appealed that order, reportedly arguing such access could harm a sensitive interrogation.

The government has the option of moving the case to a military tribunal if prosecutors can't win in the 4th U.S. Circuit Court of Appeals in Richmond.

A tribunal could allow greater secrecy and fewer rights for a defendant. However, while intelligence agencies and some Pentagon officials might consider the tribunal a better option, Attorney General John Ashcroft has publicly fought for a civilian trial.

Moussaoui is the lone defendant in the United States charged as a conspirator with the Sept. 11 hijackers and could face the death penalty if convicted. He has admitted belonging to al-Qaida but denied he was part of the Sept. 11 plot.

Moussaoui complained the government has changed the theory of its case, and asserted he was wrongly kept in the dark because the theory is classified.

Moussaoui said the government switched from calling him the 20th hijacker to describing him as the "fifth pilot," suggesting an additional attack by another hijacked aircraft.

The government said Moussaoui's comments about a change in theory "are as irrelevant as they are inaccurate."

"Contrary to defendant's assertions, the government has never described the defendant in the indictment or any pleading as the '20th hijacker,"' the government contended.

"Instead, the indictment alleges that the defendant was part of a conspiracy to kill Americans by flying hijacked commercial airliners into buildings. And, while the charged conspiracy resulted in the September 11 attacks, and the murder of nearly 3,000 innocent victims, the indictment does not, because it need not, outline a particular theory of the defendant's guilt."

The indictment against Moussaoui spells out how the defendant's conduct mirrored that of the hijackers, including attendance at flight schools and flight simulator training facilities, purchase of knives and other tools to be used in hijackings, and receipt of money from common al-Qaida sources.

"Of course, the defendant knows full well that these unclassified statements substantiate the charges against him, including the allegation that he is associated with al-Qaida, as well as the government's theory that the defendant was preparing to fly an airliner into a building in the United States," the pleading said.

In a separate pleading, Moussaoui's court-appointed lawyers supported a request by news organizations to open proceedings and release court documents to the public.

The public "cannot know, for example, except by speculation, about the novel constitutional propositions being advanced by the government," the motion said. Without more openness, the constitutional concerns of Moussaoui and the public "will continue to take a serious beating," it added.