A third defendant in the Buffalo Six alleged "sleeper cell" case pleaded guilty today to providing support to Al Qaeda, which carries a sentence of up to ten years.

The Government has disclosed that all six of the defendants will plead guilty.

In an unprecedented ruling today, the Fourth Circuit Court of Appeals ordered that a May 6 hearing on Zacarias Moussaoui's right to interview Al Qaeda member Ramzi Binlashibh will be closed to the public.

Is such secrecy justified when the Government publicized the case at every turn prior to its determnination that national security concerns were more important?

Larry Ottinger, senior staff attorney for the liberal People for the American Way Foundation, said he found the secrecy "very troubling. An open court system and open hearings are fundamental to the American system of justice," he said.

The trial judge had granted Moussaoui's request to interview Binalshibh because he has a right to exculpatory information, and Binalshibh could refute parts of the Government's case--specifically the allegation that Moussaoui was part of the 9/11 conspiracy. The difference between being a member of Al Qaeda and intending to commit a different terrorist act against the U.S., and intending to participate in 9/11, is significant because it could determine whether Moussaoui, if convicted, gets life or death. Supplying material aid or resources to terrorists does not carry the death penalty. Conspiring to commit the 9/11 attacks does.

It is widely expected that if the Government loses its bid to overturn the trial court's ruling that Moussaoui is entitled to interview Binalshibh, the Government will dismiss the federal case and try him in a military tribunal proceeding.

Moussaoui is the only person in America who has been charged with committing the 9/11 attacks. It is essential that his trial and all proceedings be open to the public. In the event of a guilty verdict, and particulary a death sentence, the American public has to be able to trust in the integrity of the process. As another Judge recently said in a case involving closure of deportation hearings, "Democracy dies behind closed doors."

For more on Moussaoui and the events in his case to date, go here.

"A second of six Yemeni-American men accused of training at an al Qaeda camp in Afghanistan months before the Sept. 11 terrorist attacks pleaded guilty today to charges he supported al Qaeda."

"Shafal Mosed, 24, entered the plea to a charge of knowingly and unlawfully providing and attempting to provide material resources to a foreign terrorist organization, namely al Qaeda.
Authorities indicated they would seek an eight-year prison term."

The Judge in the Michigan terror trial now underway in federal court has refused to adjourn the trial because of the preducial effect on the jury of the War on Iraq. The men on trial are charged with providing material aid to terrorists --the Government alleges they were in a sleeper cell. Our most recent, detailed explanation of the case is here.

Zacarias Moussaoui has advised the federal court that he wants to call two top Al Qaeda captives as witnesses in his trial. They are Khalid Shaikh Mohammed, the alleged mastermind behind 9/11 and Mohamed al-Hawsawi, who allegedly shipped credit cards to the 19 hijackers in Florida for expenses.

We think the Court has to grant Moussaoui's request, particularly as to Mohammed, if reports are true that after his capture, he told the Government that Moussaoui was never a part of 9/11, but was going to be used in a different attack. That testimony is exculpatory as to Moussaoui, and he has a right to know about it and call witnesses to bring it before the jury. An agent can't testify to it instead of Mohammed because that would be hearsay. Since Mohammed's statement to the agent was made after the charged conspiracy ended, it is not a statement in furtherance of the charged conspiracy and therefore is not subject to the coconspirator exception to the hearsay rule.

However, Moussaoui may get himself in deeper trouble by insisting on calling Mohammed--if the Court grants the request, it may be the final straw for the Government in deciding to dismiss Moussaoui's federal case in favor of a trial by military tribunal. Moussaoui will have far fewer rights in such a proceeding, and his fate will not be determined by jurors but by military officials.

The Judge has previously ruled that Moussaoui could have access to captured Al Qaeda member Ramzi Binalshibh. Binalshibh allegedly wired money to the hijackers and his name appears throughout Moussaoui's Indictment. The Government is appealing that ruling to the 4th Circuit.

According to the CNN article, Government sources have reported that Binalshibh, in statements made after his capture, has told the Government that Moussaoui was never intended to be part of 9/11--absent a last minute emergency. Moussaoui says the Government is torturing Binalshibh to say things that aren't true. It's not clear whether Binalshibh is claiming Moussaoui knew he could be called upon to help the 9/11 operation if needed.

Mohammed and al-Hawsawi were captured together in Pakistan on February 28, and are reprotedly being held at Bakram Air Base in Afganistan.

One other captive that Moussaoui wants to have testify at his trial is Abu Zubaydah, alleged to be a top associate of bin Laden who was captured in March, 2002. In a handwritten motion, Moussaoui told the Court, ""Abu Zubaydah must talk to the world about September 11."

Legal experts say that the terrorism trial now in the jury selection stage in Detroit could have a major impact on the Government's credibility . The defendants were arrested on September 17, 2001, following a raid on an apartment in which the Government was looking for a former cabdriver who was on the FBI's terrorism watch list. They didn't find the cabdriver, but they arrested three other men present, all of whom said they didn't know the cabdriver.

Since then, one potential witness has apparently committed suicide by jumping off an overpass; a potential defendant has become the government's key witness; and the original target of the raid may testify at trial but faces no terrorism charges of his own.

Jury selection has been closed to the public, at the request of the defense. These Dearborn, MI detainees are the first to face a federal terrorism trial, post-9/11.

Prosecutors have called the defendants a "combat operational sleeper cell" and allege they were conspiring to blow up U.S. targets both overseas and in the United States. One key piece of evidence is a videotape of Disneyland and a Las Vegas hotel that authorities describe as the result of scouting efforts in preparation for attacks.

Defense attorneys have indicated in court filings and courtroom statements that they believe the government's key witnesses are unreliable, and they say that much of the rest of the evidence presented by the government is circumstantial at best. Three of the defendants say they were simply caught in the wrong place -- the Dearborn apartment -- at the wrong time, just six days after Sept. 11.

Attorney General John D. Ashcroft and other top officials have repeatedly cited it as an example of their war on terrorism.

"This case is going to be very closely watched both locally and nationally," said David Moran, a law professor at Wayne State University. "If the government is not able to convince a jury that these men were an actual terror cell, that will have real impact. . . . If it can't actually produce the goods here, the government's credibility will be hurt nationwide."

Looks like the feds case against Moussaoui is falling apart even further. CBS reports that captured Khalid Mohammed backs up Moussaoui's innocence with respect to Sept. 11 and says he's a small fry.

Khalid Shaikh Mohammed, the al Qaeda leader captured earlier this month in Pakistan, has told U.S. intelligence officials that Moussaoui was not involved in the Sept. 11 hijacking plot. This supports what Moussaoui for months now has been telling anyone who would listen: he's al Qaeda, all right, but wasn't supposed to be the "20th hijacker." He was a terror conspirator but not a part of the devastatingly coordinated conspiracy that resulted in the death of nearly 3,000 people.

We've argued this for many months. It's time for Justice to bite the bullet on this one: let Moussaoui plead to providing material support to Al Qaeda and drop the death penalty demand. Save us all a few million dollars in prosecution costs. If Supermax is okay for "Shoe-bomber" Richard Reid, it's okay for Moussaoui as well. Why believe Mohammed? Tha Government has to, says CBS, and we agree:

If the feds come out and say that Mohammed is wrong about Moussaoui, then why should anyone be expected to believe Mohammed when he says anything about anyone else?

That's one of the problems with informants--its can be like buying a pig in a poke and they don't always tell the truth --but once the Government gets in bed with them, they're pretty much stuck with the first story--at least the first one that's taped or recorded or transcribed.

"Have you ever heard the word 'jihad'? Do you speak Arabic? Are you a member of the National Rifle Association? Have you visited Ground Zero of the World Trade Center? "

These are some of the questions being asked of prospective jurors in the Detroit trial of four men accused of plotting terror activities.

The case is being shrouded in secrecy, which the media and defense find objectionable.

The questions will help choose a 16-member jury that will preside over the United States' first terrorism trial since the Sept. 11 attacks. The jury will be under such close watch that members won't even be allowed outside for lunch. Their names will remain hidden from everyone but a single clerk. The high secrecy and security are attracting objections from The Detroit News and defense lawyers for four men arrested Sept. 17, 2001, and charged with providing material support for terrorism. Legal experts said the unusual jury-selection process could set an early tone for the trial.

The case is expected to test the Government's ability to prove terrorist claims.

Eighteen months after a raid on an apartment uncovered what prosecutors say was a conspiracy to support terrorist strikes in Jordan, Turkey and the United States, four men charged in the case are coming to trial today. The trial will be one of the first for an alleged terror cell in this country since the Sept. 11, 2001, attacks, and it may test the government's ability to prove accusations about terror plots in the making. "The government has not yet been compelled to show its hand in these cases," said Juliette Kayyem, a terrorism expert and professor at Harvard University. "There have been a lot of press conferences and indictments, but those are not facts."

The Chicago Tribune today has a long investigative article on how the recent arrests of allegedly high ranking Al Qaeda members reopen questions about military tribunals. The article contains this description of the difference between tribunal and federal court proceedings:

How military and civilian courts would differ

The Bush administration wants to try suspected terrorists in a special military commission that would likely act in secret. Here is how a military commission, as proposed by Defense Secretary Donald Rumsfeld, would differ from a federal criminal court:

MILITARY COMMISSION

CRIMES: Defined by the Defense Department

PRESIDING OFFICIAL: A military lawyer, called a judge advocate, who is appointed and acts as a member the panel.

DELIBERATORS: A panel of three to seven military officers.

DEFENSE : Appointed by the defense secretary or someone he names as the appointing authority.

RULES OF EVIDENCE: A military lawyer is assigned to represent the accused, who can hire a civilian lawyer as well. The civilian lawyer could be barred from sensitive proceedings and evidence. The presiding officer decides whether admit or exclude evidence. There are rules governing suppression of evidence.

SECRECY: The presiding officer has broad discretion to close the proceedings.

DECISIONS: Conviction and sentencing require a two thirds vote.

DEATH SENTENCE: Only by unanimous vote of a commission of seven members.

RIGHT OF APPEAL: The accused cannot appeal to a civilian court. A review panel of three military officers or commissioned civilians, including judge, can recommend new proceedings.

FEDERAL CRIMINAL COURT

CRIMES: Defined by Congress and state legislatures

PRESIDING OFFICIAL: A federal judge, nominated by the president, confirmed by the Senate and appointed for life.

DELIBERATORS: A jury of 12 civilians, randomly drawn from voter lists, sometimes combined with driver lists. The lawyer for the accused can eliminate potential jurors.

DEFENSE: The Constitution requires that the judge appoint a defense attorney if the accused cannot afford one.

RULES OF EVIDENCE: Federal rules and case law exclude certain types of evidence, such as hearsay and illegally obtained statements.

SECRECY: The Constitution guarantees a public trial, except in certain cases, normally involving children.

DECISIONS: Must be unanimous in conviction and sentencing.

DEATH SENTENCE: As in all sentencing, the jury must be unanimous.

RIGHT OF APPEAL: The accused has the right to appeal the conviction or sentence to a higher (appellate) court.

Sources: U.S. Department of Defense, National Institute of Military Justice, FindLaw, Cornell Law School

Legal analysis and criticism of the proposed military tribunals is available from the National Association of Criminal Defense Lawyers (NACDL) here. The draft of the rules released by Rumsfeld are here. Here are the principal NACDL objections, as contained in its report:

"Politics" was how Tampa computer science professor Sami Al- Arian summed up the motivation behind the phone book- sized indictment statement levelled against him by United States Attorney-General John Ashcroft." Has Ashcroft made Al-Arian "guilty until proven innocent?" His associates think so.

The Justice Department is considering a compromise in the Moussaoui case concerning defense access to Ramzi Binalshibh.

"Victims of the Sept. 11 terrorist attacks can watch closed-circuit coverage of the trial of alleged conspirator Zacarias Moussaoui in courthouses in Washington, New York and New Jersey, a federal judge has ruled."

"But U.S. District Judge Leonie M. Brinkema rejected a plea by federal prosecutors to set up additional viewing sites in Pennsylvania, California and Massachusetts."

"The decision Tuesday triggered an immediate outcry from victims' families and public officials in Pennsylvania, where United Airlines Flight 93 crashed, killing all 44 people aboard."