Prosecutors want an appellate court to overrule two district court orders that gave Moussaoui the right to question three captives who he says could testify he was not a conspirator in the Sept. 11, 2001, attacks.
"In light of the rulings this court has already made ... the government believes that, at this juncture, dismissal of the indictment ... is the surest route for ensuring that the questions at issue here can promptly be presented to the 4th Circuit (Court of Appeals)," the written motion said.
U.S. District Judge Leonie Brinkema has said she would impose a punishment on the government next week for defying the two orders, which gave Moussaoui, a French citizen, the right to question the witnesses through a satellite hookup.
In the new motion, the government asked that the court postpone the effect of any dismissal so the appellate court, in Richmond, Va., could intervene.
Prosecutors have opposed any direct access between the prisoners and Moussaoui, who has acknowledged his loyalty to Osama bin Laden and is the only U.S. defendant charged as a conspirator with the Sept. 11 hijackers.
The government has argued that national security would be gravely harmed if any details were revealed about the sensitive interrogations or statements made by the prisoners, who are held in undisclosed locations outside the United States.
However, federal law says that when a defendant is prevented by court order from disclosing classified information — in this case the al Qaeda testimony — the judge is obligated to dismiss the case unless the court determines the interests of justice would be served by another solution.
Moussaoui's defense team, representing his interests while he serves as his own lawyer, said in a motion released Wednesday the case should be dismissed.
Two of the prisoners were among Osama bin Laden's top operatives, Sept. 11 mastermind Khalid Shaikh Mohammed and a key planner of the attacks, Ramzi Binalshibh. The third is Mustafa Ahmed al-Hawsawi, a suspected paymaster for al Qaeda.
In a statement, the Justice Department said, "We believe the (U.S.) Constitution does not require, and national security will not permit, the government to allow Moussaoui, an avowed terrorist, to have direct access to his terrorist confederates who have been detained abroad as enemy combatants in the midst of a war."
The government said in the motion the issue before the court is whether the constitutional right to access to favorable witnesses applies to an enemy combatant "seized and held abroad during armed hostilities."
"As the government has explained,the Constitution provides an accused terrorist with no such right to ... questioning of his confederates detained by the military overseas."
Prosecutors also said there were other ways to introduce witness statements beyond direct testimony, but added that that issue could be decided later.
A three-judge panel of the appellate court has heard oral arguments on the witness access issue, and has said it would intervene after Brinkema issued her sanctions against the government.