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washingtpnpost.com > Metro > VirginiaMoussaoui Judge Expected Statements to Stay ClassifiedBy Jerry MarkonWashington Post Staff WriterFriday, June 18, 2004; Page A07A federal judge agreed to provide classified statements from top al Qaedadetainees to the commission investigating the Sept. 11, 2001, terror attacks onth e condition that they not be made public, but the information was released thisweek with great fanfare.

U.S. District Judge Leonie M. Brinkema, who isoverseeing the criminal case against ZacariasMoussaoui in Alexandria, granted the request offederal prosecutors to provide th e information to thecommission only after it assured her that the materialwould stay classified, letters exchanged between thejudge and prosecutors show."A s long as the Classified summaries remain out ofthe public's view, I have no objection," Brinkemawrote in an April 28 letter obtained by TheWashington Post.

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The commission subsequently asked that parts othvmateriaLbfijjeclassified, and Justice Department an dintelligence officials agreed, people familiar with th eprocess said. It is unclear whether the U.S. attorney'soffice in Alexandria, which is prosecuting th e casean d agreed to the judge's conditions, knew about thechange. Brinkema, through a court spokesman,declined to comment. It is unclear whether sh e knewbeforehand that th e statements would be madepublic.Th e release of the information could affect th ealready complicated case against Moussaoui, the

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only person charged in a U.S.courtroom in theattacks on the W orld Trade Center an d Pentagon.Prosecutors had tried to keep the detainees'statements classified, denying defense requests foraccess to the captives. Those statements, the extent towhich the defense can use them to help Moussaoui,and the issue of whether defense lawyers canquestion the detainees hav e kept the case tied up incourt for more than a year. The statements were keptsealed throughout the legal fight, and court officialstook great pains to redact an y information from thestatements from an y public documents.Some legal observers said Brinkema could now ordera hearing and force prosecutors to explain how thematerial became pu blic. "The judg e is probablyfrustrated to no end that she let this stuff go throughand is probably very upset about it," said W illiam B .Cummings, a former U.S. attorney an d longtimedefense lawyer. He added that he did not think thedisclosure wou ld violate federal court rules because"the representations of the prosecutors w as probab lymade in good faith, and somebody else has spun thataround, and they have no control over that."The statements received widespread media attentionthis week because the two detainees gave strikingand previously unheard details of the Sept. 11 plot.Moussaoui's attorneys have blasted the disclosure,saying it imperiled M oussaoui's right to a fair trial.Sources close to the case said the publicly releasedinformation was incomplete and did not includestatements saying Moussaou i was not part of theSept. 11 plot. Th e commission's staff report quoted one top al Qaeda detainee,Ramzi Binalshibh, as saying that M oussaoui w as directly involved in the Sept.11 plot, while another, Khalid Sheik Mohammed, said Moussaoui was slated fora second w ave of attacks on the West Coast.

Frank W. Dunham Jr., the federal public defender representing Moussaoui,declined to comment. A spokesman for the Justice Department referredquestions to Paul J. M cNulty, the U.S.attorney in Alexandria, who said, "Weare confident that Zacarias Moussaoui can and will receive a fair trial." Hedeclined to comment further.Al Felzenberg, a spokesman for the Sept. 11 commission, said the commissionha d cleared the staff report "with intelligence officials to be certain that w edidn't say anything that would inadvertently compromise sources and methods"of obtaining information. "W e didn't release it of our own volition," he said.The Justice Department has clashed with judges before in the case against

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Moussaoui, a French citizen who was indicted in December 2001. The issue ofal Qaeda detainees became paramount in January 2003, when Brinkema orderedthat defense lawyers be allowed to question Binalshibh, the self-describedcoordinator of the Sept. 11 plot. Defense lawyers believe he has informationthat could help their case.Brinkema subsequently ordered similar depositions of Mohammed and a thirddetainee. Prosecutors defied the judge and refused to produce the witnesses,sending the case to a federal appeals court in Richmond, w hich recently ruledthat defense lawyers could not question the detainees but could have access totheir statements.Prosecutors informed Brinkem a in an A pril 27 letter that they intended toprovide a copy of classified summaries of detainee statements to thecommission, at its request. Prosecutors wrote that they believed that providingthe summaries would not violate local court rules against discjjesiflgjnformationthat could jeopardize a defendant's right to a fair trial becaus "theyclassified and, therefore, cannot be released to the public."Brinkema responded in the April 28 letter and ordered prosecutors to "advisedefense counsel immediately." Defense lawyers later said they did not object, aslong as the material remained classified.Stephen Saltzburg, a law professor at George W ashington U niversity and anexpert on classified information, said that Brinkema probably will be upset andhold a hearing but that it will affect the case only "if it turns out that prosecutorswere aware of what was happening on the declassification and didn't tell her."He added that although Moussaoui's attorneys will "yell and scream" about thedisclosures, the information will help the defense, because the contradictoryinformation about his role in the attacks w ill make it harder for prosecutors tosecure a death sentence.

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