The case of United States v. Moussaoui, in the federal District Court for the Eastern District of Virginia, began with a question: Can the civilian court system handle a highly sensitive, national security case and emerge with its tradition of transparency and public access intact?
After more than a year of wrangling for access by both media outlets and the defendant himself, the answer appears to be no. The government's recent refusal, on national security grounds, to obey an order by U.S. District Court Judge Leonie Brinkema, creates a possibility that the case against Moussaoui will be dismissed. That would likely result in the French national being labeled an enemy combatant and tried in a secret military tribunal. Moussaoui is the only person who faces charges in an American court in the Sept. 11, 2001, terrorist hijackings.
Brinkema had been concerned with the secrecy surrounding the case since early in the proceedings. In September 2002, she began removing some barriers to public access to the case, modifying an earlier order sealing Moussaoui's filings due to prosecutors' fears that the avowed member of al Qaeda might be trying to pass coded messages in his unorthodox, handwritten filings, according to a Sept. 28, 2002, article in The New York Times. Brinkema's modified order sealed Moussaoui's handwritten pleadings for 10 days, allowing the government to analyze the filings for potential secret messages before release. (See "Cameras Banned at Trial of Alleged Terrorist" in the Winter 2002 Silha Bulletin.)
Despite the shift, the record of the case remained largely secret. The secrecy intensified in October 2002, when Ramzi Binalshibh, an alleged Sept. 11 co-conspirator, was captured in Pakistan.
Between Brinkema's Sept. 27, 2002 order and the following April, however, only a handful of filings were unsealed, according to a Washington Post article by reporter Tom Jackman.
"Moussaoui and his standby lawyers . . . sought access to Binalshibh, who Moussaoui says will support his claims that he was not involved in the attacks," Jackman wrote in the April 4, 2003, edition of The Washington Post. "Briefs, oral arguments, even a ruling by Brinkema that the defense should have access to Binalshibh, all have been kept secret."
A group of media organizations, including the The New York Times and The Washington Post, challenged the continued secrecy on April 3. According to an April 4 article in The New York Times, the organizations filing the protest with Judge Brinkema were The New York Times, ABC News, The Associated Press, The Hearst Corporation, the Tribune Company and The Washington Post, as well as the Reporters Committee for Freedom of the Press. The media organizations argued that holding the judicial records under seal violated First Amendment and common-law rights of access to judicial proceedings.
Moussaoui has insisted on acting as his own attorney, but one of his standby defense attorneys said he supported the media's request.
"We recognize that there are national security concerns, and we certainly don't believe in compromising national security," federal public defender Frank Dunham Jr., told The New York Times, "but I can't imagine that we would take any position other than that the trial and all pretrial proceedings should be public to the maximum extent possible."
The day after the media organizations' challenge, Brinkema said she was unsure whether the case against Moussaoui could go ahead amid such secrecy, according to an April 5, 2003, article by Minneapolis Star Tribune reporter Greg Gordon.
The judge's concerns were borne out soon thereafter.
On May 13, 2003, the U.S. Court of Appeals (4th Cir.) refused the government's request to overturn Brinkema's January 2003 decision granting Moussaoui access to Binalshibh as part of his defense.
"The value of openness in judicial proceedings can hardly be overestimated," the court wrote, according to a May 14 report in The New York Times. "This value, of providing to the community at large a sense that justice has been done, is particularly relevant in the prosecution of Moussaoui."
Following the ruling, Brinkema pressured the government for a decision about whether it would comply with her ruling, setting a July 14 deadline for notification. Attorney General John Ashcroft notified Brinkema on the day of the deadline immediately after the Fourth Circuit announced that it would not review the decision en banc that the government would not comply with her ruling, according the Minneapolis Star Tribune. Ashcroft cited national security concerns.
According to the Star Tribune, Brinkema may be compelled to dismiss the charges against Moussaoui. That decision, if upheld on appeal, would force the government to declare Moussaoui an enemy combatant and try him in a secret military tribunal. Among Brinkema's other options, the Star Tribune reported, are eliminating the possibility of the death penalty for Moussaoui; eliminating any mention by the prosecution of Binalshibh, who was mentioned in the government's indictment of Moussaoui; or informing the jury that the government refused to produce a requested witness. As the Bulletin went to press, Brinkema had not announced which course she would take.