Could the Moussaoui trial get derailed because of the unavailability of captured Al Qaeda members who Moussaoui might want to call as defense witnesses? In U.S. Sees Threat to Terror Trial, published in today's New York Times, the answer according to Government officials and legal experts is "quite possibly."

Moussaoui has a Sixth Amendment right to confront the witnesses against him and to seek out and call witnesses on his own behalf. Ramzi Binalshibh, captured in Pakistan, has been in U.S. military custody since September where he continues to be interrogated.

"The officials said defense lawyers acting on Mr. Moussaoui's behalf were demanding access to the captured terrorists for interviews and trial testimony, notably Ramzi bin al-Shibh, who was arrested in Pakistan last month. Mr. bin al-Shibh, a 30-year-old Yemeni man, has been described by the United States as a ringleader of the Sept. 11 attacks. But the officials said the government was refusing access on national security grounds."

"That has provided the court-appointed defense team with a powerful legal argument that Mr. Moussaoui and other Qaeda defendants cannot receive a fair trial, since they are being deprived of their constitutional right to interview witnesses whose testimony might demonstrate their innocence."

"The officials said the issue had been the subject of secret hearings and a flurry of secret court filings in recent weeks in the Alexandria courthouse, where Judge Leonie M. Brinkema has sealed the record on the issue out of concern that publicity could lead to the inadvertent release of classified information."

Moussaoui's Indictment suggests that Binalshibh should have extensive knowledge about Moussaoui's involvement or lack of involvement in the Sept. 11 attacks.

"The indictment identifies Mr. bin al-Shibh repeatedly, both by his real name and a code name, Ahab Sabet, and charges that he was a key member of a terrorist cell in Hamburg, Germany, that carried out the Sept. 11 attacks. Specifically, the indictment says that Mr. bin al-Shibh wired $14,000 to Mr. Moussaoui from Germany in August 2001."

"The law enforcement officials said the controversy about the witnesses was almost certainly a factor in Judge Brinkema's decision last month to delay Mr. Moussaoui's trial by nearly six months, to next June. In her order, she referred, somewhat cryptically, to "compelling reasons justifying an extensive continuance of pretrial and trial proceedings."

We predicted this exact issue would arise back on September 18. Our other detailed discussions of the effect of Binalshibh's capture on the Moussaoui case are here and here.

As we said in some of our earlier posts, another option for the Government is to charge Binalshibh in federal court though a Superseding Indictment against Moussaoui that adds Binalshibh as a co-conspirator in the September 11 attacks. Since Binalshibh would have a 5th Amendment right to remain silent, Moussoui would not have the right to call him as a witness at a joint trial.

In order for Moussaoui to call Binalshibh as a witness if Binalshibh were charged as a co-conspirator in the same case, Moussaoui would have to move for a separate trial, and would have to make a compelling showing that Binalshibh had information that would exculpate Moussaoui. Moussoui would have to submit an affidavit from Binalshibh stating that not only did Binalshibh have such information but that he was willing to testify to it at a separate trial. If Binashibh were charged in federal court, he would have lawyers appointed to represent him. We think it's unlikely Binalshibh's lawyers would allow him to provide such an affidavit for Moussaoui.

We like this option because it means Binalshibh would not become the subject of a trial by secret military tribunal and it would result in his being provided with counsel and a trial that is open to the public.