The Fourth Circuit Court of Appeals will hear argument tomorrow on Zacarias Moussoui's claim that the Government has to allow him to interview captured Al Qaeda suspect (and alleged 9/11 coconspirator) Ramzi Binalshibh because Binalshibh has information that would show Moussaoui was not part of the 9/11 conspiracy with which he is charged. If convicted of that conspiracy, Moussaoui could get the death penalty.

Documents released today show that the trial judge, Lonnie Brinkema, has previously found that Binalshibh's testimony "could undermine the government's prosecution of Zacarias Moussaoui and possibly prevent his execution."

The Justice Department has previously said Mr. bin al-Shibh, a Yemeni in his 30's, was the go-between for Mr. Moussaoui and the Sept. 11 hijackers.

But it is seeking to deny Mr. Moussaoui access to Mr. bin al-Shibh as a defense witness, asserting that an interview would endanger national security secrets and interrupt the government's campaign to pre-empt new terrorist attacks.

Judge Brinkema said in her opinion that in trying to deny Mr. Moussaoui access to captured terrorists , the Justice Department was seeking a "categorical, `wartime' exemption" to the Constitution's Sixth Amendment protections of criminal suspects, including their right to seek testimony from witnesses who might help prove their innocence.

She made clear she believed there was no such exemption, saying, "When the government elected to bring Moussaoui to trial in this civilian tribunal, it assumed the responsibility of abiding by well-established principles of due process. The government's good-faith interest in protecting national security does not categorically override a defendant's right to a fair trial."

In comments that could be referring to Mr. bin al-Shibh, Judge Brinkema said she was "fully satisfied" that testimony from at least one Qaeda figure now in American custody would be "both material and exculpatory" if believed by Mr. Moussaoui's jury.

We have written about Binalshibh and his relationship to Moussaoui since Binalshibh's capture. You can access all our posts here.

If the Government loses, it will likely drop its federal prosecution of Moussaoui and have him tried before a military tribunal. This was supposedly Ashcroft's showcase trial, the one that would establish that the U.S. could try terrorists in civilian courts.

The government and others boasted that Moussaoui would receive swift justice in an open courtroom as a showcase for the world about the fairness of the U.S. judicial system. Now those same people say privately that the system has been turned on its head.