The opinion Monday appeared to give Moussaoui's lawyers their first chance to submit questions to three al Qaeda terrorist leaders who made statements to interrogators that could help Moussaoui avoid execution. Some of those statements said Moussaoui, who was arrested in Minnesota nearly a month before the Sept. 11, 2001, attacks, was not to be part of the suicide hijackings.
A section of the ruling was titled "Submission of Questions by Moussaoui." While a fuller explanation was blacked out, the heading would only have significance if this was being allowed for the first time.
While the opinion of the 4th Circuit in Richmond, Va., mostly reaffirmed the same court's ruling in April, the court noted the significance of the only U.S. case charging a defendant with crimes related to the deadliest attacks on the United States.
The case raises "constitutional guarantees of a fair trial even to one accused of the most heinous of crimes, and to the protection of our citizens against additional terrorist attacks," the court said.
While Moussaoui's constitutional right to favorable information was accepted by all three judges who heard the arguments, one of them dissented on restoring the possibility of the death penalty.
Judge Roger L. Gregory said capital punishment should only be permitted if Moussaoui had full access to the witnesses, who will not appear in person due to national security concerns.
The 4th Circuit chief judge, William W. Wilkins wrote the opinion. Judge Karen J. Williams concurred.
"The enemy combatant witnesses could provide material, favorable testimony on Moussaoui's behalf," the court said.
Those statements backed Moussaoui's claim that he had no role in the Sept. 11 planning, although he acknowledged he was training for a later attack. Some of the same witnesses, however, also made statements that Moussaoui originally was to participate on Sept. 11 when 19 hijackers crashed planes in New York City, Washington and Pennsylvania, killing nearly 3,000 people.
"Clearly the appeals judges deserve credit for trying to fashion a compromise that both recognizes Moussaoui's constitutional rights while recognizing the government's intense interest in national security,".
By ordering the trial judge, prosecutors and defense lawyers to agree on statements from al Qaeda witnesses that could be presented to a jury, the 4th Circuit court resolved a key dispute delaying a trial.
Given the considerable work involved with crafting statements that a jury would see, a trial in Alexandria, Va., federal court is unlikely until next year.
In its ruling Monday, the appellate panel, for a second time, overturned U.S. District Judge Leonie Brinkema's removal of the death penalty and also any Sept. 11-related evidence. She had imposed those punishments against the government for refusing to allow Moussaoui's defense adequate access to the witnesses.
The appeals court said, "no punitive sanction is warranted here because the government has rightfully exercised its prerogative to protect national security interests by refusing to produce the witnesses."
Two of the al Qaeda witnesses are top Sept. 11 masterminds Ramzi Binalshibh and Khalid Shaikh Mohammed. The opinion identifies the three witnesses as A, B and C.
Moussaoui was arrested Aug. 16, 2001, on immigration charges after officials of an Eagan, Minn., flight school became suspicious of his poor flying skills.
The commission that studied the Sept. 11 attacks reported that Mohammed may have instructed Binalshibh to send money to Moussaoui to help prepare him as a substitute pilot.
Mohammed "denies ever considering Moussaoui for the planes operation," the report said. "Instead he claims that Moussaoui was slated to participate in a 'second wave' of attacks."
The commission said, however, it believed "the effort to push Moussaoui forward in August 2001 lends credence to the suspicion that he was being primed as a possible pilot in the immediate planes operation. Binalshibh says he assumed Moussaoui was to take his place as another pilot in the 9/11 operation."
The court opinion said each of the three witnesses has made statements to interrogators that would support Moussaoui, and one would undermine a possible government theory that Moussaoui was to have flown a plane into the White House on Sept. 11.
Witness A's statements are "consistent with Moussaoui's claim that he was to be part of a post-September 11 operation," the court said.
Frank Dunham Jr., the federal public defender representing Moussaoui, declined to comment on the ruling.
Attorney General John Ashcroft called the ruling a victory for the government, saying it "once again affirms our belief that the government can provide Zacarias Moussaoui with a fair trial while still protecting national security interests."
The court said "accuracy and fairness are best achieved by compiling substitutions that use the exact language" of summaries of witness statements.
Defense lawyers should identify portions of the statements that Moussaoui may want to admit into evidence, and the government has the right to object, the court said.
Further, the jury must be informed that the substitutions are "what the witnesses would say if called to testify."