The New York Times today has an in-depth report on the Buffalo (Lackawanna) Six terror case. Unclear Danger is being released in conjunction with a new Frontline special that will air October 16, Chasing the Sleeper Cell.

Both are highly recommended. An index to our coverage of the case is here.

No surprise here, but the Government has decided to appeal Judge Brinkema's ruling in the Zacarias Moussaoui case.

The government wants an appellate ruling that affirms their refusal to make three al-Qaida prisoners available to Moussaoui. The government defied two district court orders that gave the defendant the right to question the captives because they might help his defense.

To sanction the government for its defiance, U.S. District Judge Leonie Brinkema on Thursday barred the government from seeking the death penalty or presenting any evidence that could link Moussaoui to the Sept. 11 suicide hijackings.

The issues before the 4th Circuit, which has already heard one set of oral arguments in the case, but said it could not rule until Judge Brinkema imposed sanctions, are these:

The government would be expected to renew arguments that the courts have no authority to interfere with decisions made by the executive branch about prisoners captured in a war. The government also has contended and will again that every word uttered by the prisoners could reveal classified information.

Moussaoui's legal team has said Moussaoui has a constitutional right to introduce favorable witnesses and that he cannot receive a fair trial without them.

New oral arguments are expected around November or December.

Yesterday we reported on Judge Lonnie Brinkema's order preventing the Government from seeking the death penalty against Zacarias Moussaoui as a sanction for the Government's refusal to comply with her prior order directing it to make 3 captured al Qaeda members available to Moussaoui to interview.

Actually, her order goes much further and bars all 9/11 evidence:

Exacting punishment for disobeying her orders, U.S. District Judge Leonie Brinkema on Thursday barred the government from introducing any "evidence or argument that the defendant was involved in, or had knowledge of" the suicide hijackings.

The Government's options are now:

Ask the 4th U.S. Circuit Court of Appeals in Richmond, Va., to restore the prosecution's full case.

Move the trial from a civilian court to a military tribunal, where rules might help the prosecution.

Proceed in Brinkema's court without the Sept. 11 evidence.

You can read the Judge's order here.

Yes!

The Judge presiding over the trial of Zacarias Moussaoui has decided on sanctions for the Government as a result of its refusal to comply with her order to allow Moussaoui to interview 3 al Qaeda witnesses who may have exculpatory information about his participation or lack of participation in the 9/11 attacks: the Government can't seek the death penalty.

A U.S. federal judge on Thursday barred the government from seeking the death penalty for terrorism suspect Zacarias Moussaoui, inflicting a major defeat on the government for refusing to let the defendant question three al-Qaida prisoners.

She said the government's notice of intent to seek a death sentence must be stricken and prosecutors cannot present any evidence or argument that the defendant was involved in, or had knowledge of, planning the Sept. 11 attacks.

This is way better for Moussaoui than dismissing all charges as the Government had wanted. Had all charges been dismissed, the Government, if it lost the appeal, most likely would have decided to try Moussaoui in a secret miltary tribunal proceeding.

With the case still alive, and the Government not prohibited from going forward on all counts at trial and getting a life verdict, we think Ashcroft and Rumsfeld would face far too much criticism if they moved Moussaoui's case to a tribunal just to be able to execute him.

Judge Brinkema's order today will be stayed so the Government can appeal. We think they face a tougher battle on appeal since it is up to the Judge to decide on sanctions, and since she didn't pick the most serious sanction, dismissal, the appeals court will be hard pressed to say she abused her discretion.

Since last September, we've been suggesting:

Maybe a compromise could be worked out where the Government drops the death penalty request against Moussaoui if Moussaoui pleads and agrees to a life sentence thereby avoiding the need to call Binalshibh at all.

Whatever happens, it should occur publicly. The Government should not be allowed to hide behind a veil of secrecy in this case as it has with Padilla and Hamdi and the other so called "enemy combatants."

All of our Moussaoui coverage can be found here.

The Government agreed with standby lawyers for Zacarias Moussaoui today that criminal charges should be dismissed in the case.

Prosecutors claim they made the motion so that they can appeal the Court's prior ruling ordering the Government to make three captured al-Qaeda members available for an interview by Moussaoui.

The Fourth Circuit Court of Appeals has already heard legal arguments in the case, but declined to rule until Judge Brinkema decides what sanctions to impose on the Government for failing to comply with her order. The penalty could range from dismissal of the charges to preventing the Government from seeking the death penalty.

We think the Government wants to avoid being told it can't impose the death penalty in the federal case. It would rather the charges were dismissed first. Otherwise, as a public relations matter, if the Administration later declares Moussaoui an enemy combatant and tries to get a death verdict from a military tribunal, it will be viewed as bad form. The decision will be criticized world-wide. Think about it. The leader of the free world tries an individual and seeks to execute him in a secret proceeding after a judge in an open proceeding declares he is being treated unfairly.

As to the appeal,

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."

We have little doubt that the Government is proceeding under the theory that one way or another Moussaoui will be moved to a tribunal proceeding. It wants as little interference with that as possible.

We hope Judge Brinkema stops the Government from seeking the death penalty in the federal trial. How can we send a man to his death when we don't allow him the opportunity to obtain and present evidence to show he isn't guilty of the very offense carrying the death penalty?

The Associated Press reports that alleged 9/11 mastermind Khalid Shaikh Mohammed has been spilling his guts to U.S. interrogators from his overseas place of detention.

According to the article,

Khalid Shaikh Mohammed has told U.S. investigators that he first began plotting the 2001 attacks with terrorist leader Usama bin Laden back in 1996. After examining interregation reports, The Associated Press learned that Mohammed said the original scheme involved the hijacking of five commercial airliners on both U.S. coasts. He said the plan was changed several times in the five years between its conception and execution. Mohammed also divulged that, in its final stages, the hijacking plot called for as many as 22 terrorists and four planes in a first wave, followed by a second wave of suicide hijackings that were to be aided possibly by Al Qaeda (search) allies in southeast Asia, according to the reports.

....Mohammed said al-Hazmi and al-Mihdhar were among the four original operatives bin Laden assigned to him for the plot, a significant revelation because those were the only two hijackers whom U.S. authorities were frantically seeking for terrorist ties in the final days before Sept. 11.

What we want to know is if Mohammed supports Moussaoui's claim that Moussaoui was not involved in 9/11. While the article gives the details of Mohammed's statements of everyone else's involvement, as to Moussoui, it only reports:

The ACLU, joined by the National Association of Criminal Defense Lawyers ( NACDL ) have filed a friend of court brief in the Oregon 7 terrorism case asking the Judge to declare the Patriot Act unconstitutional.

Specifically, the ACLU, joined by the National Association of Criminal Defense Lawyers, says the Justice Department's use of a secret court to get authority for electronic eavesdropping violates constitutional protections of privacy and free speech and against unreasonable searches and seizures.

The groups filed their challenge as a "friend of the court" brief Friday in the so-called Portland Seven case, in which seven people were charged with conspiring to fight against U.S. troops in Afghanistan. Three of the defendants have pleaded guilty.

Defense lawyers in the Portland case have challenged the government's use of secret court-approved wiretaps, the collection of e-mail messages and the planting of microphones in the home of one of the suspects. They claim the covert surveillance approved by a special court under the Foreign Intelligence Surveillance Act, or FISA, should not have been granted in the case because the defendants are not agents of foreign powers, spies or terrorists, as defined in the act.

A hearing on the motion will be held October 14. Here's more on the action.

For a comprehensive look at the Patriot Act in one place, visit the ACLU's Patriot Act Page.

Atrios has an update on the motion to hold Attorney General John Ashcroft in contempt in the Detroit terror trial for his improper comments. The defense had requested a contempt order against Ashcroft for violating the Court's gag order. The matter was postponed until the trial was over. It's now over. And being considered.

Here's some background on the incident. After learning of the remarks back in October, the Judge declared:

I was distressed to see the attorney general commenting in the middle of a trial about the credibility of a witness who had just gotten off the stand," Rosen said. Later, Rosen added, "The attorney general is subject to the orders of this court. ... The attorney general has specifically been put on notice about the scope of its gag order."

Our opinion at the time:

The Attorney General of the United States knows better than to comment on trial evidence at a press conference. It's the second time he has violated the gag order in the case, according to defense counsel. The Judge may make Ashcroft explain himself after the trial. That hardly helps the defendants overcome the prejudice caused by his comments if one of the jurors saw the conference or had his comments repeated to him or her. Jurors weigh the credibility of witnesses and strength of evidence, not proseuctors.

Bump and Update: Two brothers, Ahmed and Muhammad Bilal, pleaded guilty today as announced yesterday. One agreed to an 8 to 14 year sentence and the other to a 10 to 14 year sentence. What did they admit to doing?

In the plea agreement, the brothers said they "were prepared to take up arms and die as martyrs if necessary to defend the Taliban government in Afghanistan."

The agreement also noted the brothers began training in summer 2001, in advance of the September attack, "to prepare themselves to fight a violent jihad in Afghanistan or in another location at some point in the future."

The text of the plea agreement is here.

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(original post, 9/17, 5:25 pm)

Two more defendants, Ahmed and Muhammad Bilal, will plead guilty Thursday in the Portland, Oregon terror case.

The men are accused of traveling to China in a failed attempt to enter Afghanistan shortly after the Sept. 11, 2001, terrorist attack in order to assist al-Qaida and the Taliban.

This is the case in which Mike Hawash pleaded guilty a few months back. It's also the case which the the LA Times concluded the Indictment "is more suggestive of bumbling, would-be holy warriors than of soldiers training for deadly missions."

Our view back then was:

We haven't seen this reported in very many American papers, but it is all over the European press. A terror suspect arrested and jailed in Great Britain for five months as a result of a U.S. extradition request has sued the U.S. and the F.B.I. for $10 Million in Damages :

A pilot who spent five months in a British jail accused of training Sept. 11 hijackers has filed $10 million claims against both the FBI and U.S. Justice Department for ruining his life, his lawyer said Tuesday.

Lotfi Raissi, a British-based Algerian who studied at a flight school in Arizona, was arrested in London 10 days after the Sept. 11, 2001, attacks and held at the high-security Belmarsh prison.

Washington accused Raissi, 29, of training some of the hijackers. But he was later cleared of wrongdoing by a British judge, who said U.S. officials had failed to present any evidence to back up accusations that he had links to terrorism.

Lawyer Jules Carey in London said Raissi's legal team had filed claims with the Justice Department and the FBI in the United States seeking damages for wrongful prosecution and imprisonment. Even though the allegations against him were proved false, no airline will now employ Raissi as a pilot, Carey said.

"The consequences for Mr Raissi have been utterly ruinous," he said. "His entire life, both personal and professional has been blighted by the allegations and it is time for the US and UK authorities to acknowledge their part in his undoing."

The Sunday Mirror reported on the case (3/4/03, available on Lexis.com):

Last year the US accused Lotfi Raissi, an Algerian pilot living in Britain, of being the "lead instructor" of the 9/11 hijackers. There was, said the FBI, video evidence and telephone records to back up their case and Raissi could face the death penalty. But then nothing, no evidence was produced and after months in custody he was freed.

The Guardian reported on the details of the U.S. case against Raissi (7/4/03, available on Lexis.com):

According to Amnesty International: "The US authorities' reasons for seeking Lotfi Raissi's extradition included the fact that his identity and profession fit a certain profile: an Algerian man and a Muslim, a pilot and a flight instructor in the USA." So what if he's not guilty. He just has to look the part.

The case sounded familiar to us, and we remembered that we too had commented on the case during Mr. Raissi's imprisonment, agreeing with the British Courts decision to release him on bail, over the objections of the U.S. The U.S. had gone to great lengths to argue to the British court that he should remain behind bars. The case was continued a few times while the Court gave the U.S. more time to produce evidence against Raissi, which it was never able to do.

New York Attorney Lynne Stewart lost her bid to suppress wiretaps and videos yesterday. The federal court in New York ruled that the electronic surveillance was proper under FISA.

In July, the Court threw out terrorsim charges against Stewart. She remains charged with conspiracy to defraud the United States making false statements.

More than 85,000 audio recordings of voice calls, faxes and computer transmissions were made by the government during its seven-year investigation as it worked to build a case that Stewart and the three men were conduits for the sheikh to his terrorist followers, and helped him, among other things, to communicate to them his desire for a resumption of terror attacks.

The defendants argued before Koeltl that the government violated the U.S. Constitution and procedures under FISA, 50 U.S.C. § 1801 and following, and that evidence obtained in the surveillance should be not used at trial.

Stewart was not named as a target in the surveillance applications under FISA. As to the 20 videotapes of her, her client Sheikh Abdel Rahman, and an interpreter at the jail, the Judge ruled:

.... Stewart "simply ignores the cases ... that have squarely held that surveillance authorized and conducted in accordance with FISA does not violate the Fourth Amendment rights of those whose communications are intercepted."

Our full Lynne Stewart coverage is here.

Accused terrorist Zacarias Moussaoui won another round in court in his battle for witness access.

Friday, U.S. District Judge Leonie Brinkema in Alexandria, Virginia, granted Moussaoui's request for testimony from Khalid Shaikh Mohammed, the reputed architect of the hijacking attacks on New York and Washington, according to sources familiar with the ruling.

A joint team of Pakistani and FBI agents caught Mohammed and Mustafa Ahmed al-Hawsawi, one of the hijackers' alleged moneymen, March 1 at an al Qaeda safe house in Rawalpindi, Pakistan, a few miles from the capital, Islamabad.....Mohammed and al-Hawsawi are both being held at undisclosed military locations.

Previously, the Judge ruled Moussaoui must be allowed to interview Ramzi Binalshibh. He has also asked to interview al-Hawsawi.

The Government is expected to appeal this latest ruling which remains under seal.