An edited transcript of the June 3 closed hearing before the Fourth Circuit Court of Appeals in the Moussaoui case has been released

The Government, in arguing to overturn the trial judge's order that Moussaoui must be allowed to interview Ramzi Binalshibh because he may have evidence that would helpful to Moussaoui's defense, told the Court that Moussaoui's involvement was greater than just September 11, and that Binalshibh would do more harm than good to Moussaoui's case.

We're skeptical of the first claim. A key issue at trial will be whether Moussaoui was involved in planning or participating in 9/11 at all --as opposed to a plan to engage in different and later activities.

Second, it's not up to the Government to assess Binalshibh's value as a whole to Moussaoui's case. It's their job to turn over any evidence that shows Moussaoui may not be guilty of the charged crime, may be guilty of a lesser crime, or, and this is important, may indicate that a lesser penalty is warranted.

The Government is seeking to execute Moussaoui. That Binalshibh may have provided information that inculpates Moussaoui is irrelevant to their duty to turn over anything he said that indicates Moussaoui is either innocent of the charged crimes, guilty of a lesser offense or not deserving of the death penalty .

Once they have turned over that information, it is up to Moussaoui and his lawyers to decide whether they want to develop the information further by interviewing Binalshibh, and then, whether they want to call Binalshibh as a trial witness.

The Fourth Circuit is one of the most conservative in the nation. Thus, we are not predicting the Government will lose this appeal. But it should.