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."