The government attempted to submit the material to the court and keep it from Moussaoui for the time being. Classified as "Top Secret/Codeword," the information was provided as a substitute for allowing Moussaoui to interview the prisoner, Ramzi Binalshibh, via video hookup.
U.S. District Judge Leonie Brinkema, who ordered the hookup in January, said Moussaoui must see the substitute proposal now.
Moussaoui, charged as a conspirator with the Sept. 11, 2001, hijackers, has contended that Binalshibh could demonstrate that he was not part of the attack plot. Brinkema said Moussaoui has the right to potentially helpful information, but prosecutors vigorously protested any direct access between the defendant - an acknowledged al Qaeda loyalist - and a suspected coordinator of the attacks.
"This proposal is unacceptable," Brinkema said of the government plan to keep the information from Moussaoui for now.
The government had appealed Brinkema's earlier order for the hookup to the 4th U.S. Circuit Court of Appeals in Richmond, Va., arguing that judges should not disturb a sensitive national security interrogation.
The appellate court, with oral argument scheduled next month, directed that the government propose a substitute, with Moussaoui and his court-appointed lawyers to be given a chance to respond.
Brinkema said that keeping the information from Moussaoui would violate the appellate court order that the defense should have input.
"Second, because only Mr. Moussaoui can advise the court and/or his standby counsel what, if any, exculpatory material is missing from the proposed substitutions, a meaningful evaluation of the adequacy of the government's submission is impossible without input from the defendant," she said.
Moussaoui is representing himself, but Brinkema has kept the court-appointed lawyers in the case to represent his legal interests.
Moussaoui, who cannot see classified information, does not cooperate with the attorneys - who are cleared to see the material.
By Larry Margasak