WASHINGTON - Federal authorities say they are so concerned about the likely courtroom antics of Zacarias Moussaoui, who has been charged in the Sept. 11 attacks, and his desire to summon fellow al-Qaida members to his defense that they are considering trying him in a military tribunal.
A military tribunal would offer weaker legal protections and would provide no independent appeals process for Moussaoui, who has spent more than a year in the custody of the federal justice system.
The debate is most immediately the result of Moussaoui's request to call some al-Qaida operatives in U.S. military custody as witnesses in his defense, a prospect that arouses national security concerns.
But some analysts say the desire to take the case out of the public light of a civilian court might stem more from what appears to be a weak case against Moussaoui, a French citizen of Moroccan descent who is charged with helping plot the Sept. 11 attacks. He is the only suspect in the attacks who is awaiting trial in the United States, and his case has run into problems since he took over as his own lawyer in April.
Moussaoui, who in court has seemed at times confused and belligerent, has used his most recent appearances to spew anti-American invective and try the patience of Judge Leonie M. Brinkema. His hand-written legal motions are filled with paranoid fantasies and vitriol for Brinkema, the United States and his standby attorneys.
Doubts about evidence
Meanwhile, doubts have been raised about the evidence against him. Prosecutors have been unable to tie him directly to the Sept. 11 attacks. And a top al-Qaida operative - whom Moussaoui wishes to call as a witness - reportedly told interrogators that he and others had concluded that Moussaoui was too untrustworthy to take part in the Sept. 11 plot.
"There seems to be growing evidence that Moussaoui is less than once appeared," said Jonathan Turley, a law professor at George Washington University who has been involved as a lawyer in national security cases. "In fact, he looks more like an unhinged, marginal figure."
Moussaoui had a temporary victory last week when Brinkema ordered the government to give his attorneys access to the al-Qaida operative Ramzi bin al-Shibh, ABC News reported. The Justice Department will probably appeal that ruling, delaying any Moussaoui trial in a military tribunal until the matter is settled.
The government, Turley suggested, might be using the debate over whether Moussaoui has the right to call witnesses who are terrorist suspects as a pretext to move the case out of the civilian court system.
"If the courts say [Moussaoui] can [interview witnesses], the government can say they can't allow that, and they'll have to dismiss the charges," Turley said. "That gives them an excuse to say, well, we'll have to try him in a military tribunal."
Military officials say they are reluctant to allow detained terrorist operatives to be questioned in public, fearing that it would complicate their interrogations and perhaps allow operatives to pass a message to fellow conspirators. Nor do they want to give Moussaoui or any al-Qaida operatives he calls as witnesses a platform from which to vilify America.
They also have legal concerns. Military officials worry that having suspected operatives become trial witnesses could allow them to assert some minimal legal rights granted to witnesses.
The Bush administration has argued that detainees and those captured in the war on terrorism have no legal rights at all and can be held indefinitely and without counsel.
In the Justice Department, though, the discussions over Moussaoui's request have been complicated by U.S. attorneys on the other side of the country.
Prosecutors in Alexandria, Va., where Moussaoui would be tried, say he should be denied access to al-Qaida operatives or detainees. But federal prosecutors in Seattle, who are building a case there against another terrorist suspect, James Ujaama, say they need access to just that kind of witness.
Ujaama is accused of conspiring to provide al-Qaida with training facilities in Oregon. In that case, prosecutors want to interview two captured Taliban fighters in Guantanamo Bay, Cuba, as well as a former Taliban foreign minister, Mullah Wakil Ahmed Muttawakil, who is held at an undisclosed site.
Prosecutors said they were "frustrated" and "very much unhappy" about being denied access to the three detainees, according to a transcript of a hearing reported by the Seattle Times before the transcript was sealed.
According to an administration source, officials in the Pentagon, Justice Department and other agencies have engaged in heated talks about the consequences of making detainees and others in custody available to Moussaoui and prosecutors.
"What you really have is a standoff between the Department of Justice and the Department of Defense," said Scott Silliman, a law professor at Duke University who is director of the school's Center on Law, Ethics and National Security.
"The question really comes down to who has the greatest priority," he said. "It's the Department of Justice's need to prosecute terrorists against the Department of Defense's need to continue its detentions and interrogations unfettered by legal review."
In Moussaoui's case, legal analysts say, Moussaoui has a strong argument and could probably prevail over the Justice Department's appeal. The courts have typically sided with defendants on issues relating to their access to witnesses - especially witnesses who might be able to exonerate a defendant who faces the death penalty.
Bin al-Shibh, who was captured in Pakistan and is thought to have played a key role in planning the Sept. 11 attacks, has reportedly told authorities that he and other al-Qaida leaders concluded that Moussaoui was not dependable and that they would rely on him only as a backup.
Moussaoui's court-appointed standby counsel, Frank W. Dunham Jr., declined to discuss details of the case. But he said that in preparing any defense, "it's important to interview witnesses, particularly those who may have participated in some aspect of the crime."
Regardless of the reasons behind the government's interest in a military tribunal for Moussaoui, it could risk making such tribunals look like the option it chooses when it can't clear the legal hurdles of the civilian court system.
"The Moussaoui situation is particularly bad because he has been with the judicial branch for so long," Turley said. "For him to be removed after all this time, it would be an almost violent act."
The matter seems no closer to being settled, and officials within the Justice Department appear no closer to resolving their concerns. The Defense Department recently denied the German government's request to question Moussaoui and bin al-Shibh as part of a terrorism-related case there.
Moussaoui, meanwhile, is holed up in a cell in Alexandria that he calls his "Arabian cave," digging through thousands of documents, talking sporadically with his attorneys and papering the court with bizarre hand-written rantings.
In his latest motion unsealed by the court, Moussaoui asked Judge Brinkema, whom he alternately called "Death Judge Leonie" and "Heir Nanny," to force the CIA and National Security Agency to open their records to him.
"So me, myself and I want the CIA and NSA report NOW," he wrote. "Again, you can cheat, you can lie but you cannot win."