Despite being told by the trial court judge to allow Zacarias Moussaoui to question Al Qaeda member Ramzi Binalshibh , and despite the fact that the Fourth Circuit has twice now refused to overturn that order, the Government has announced it will not comply.

The Government cites national security concerns.

Chief Judge William Wilkins, who was against rehearing the case, said the appeals court could not just rule in favor of the government because it asserts national security interests.

"Siding with the government in all cases where national security concerns are asserted would entail surrender of the independence of the judicial branch and abandonment of our sworn commitment to uphold the rule of law," he wrote.

Trial Judge Leonie Brinkema now must decide whether to dismiss the case against Moussaoui, or impose some other sanction. If the case is dismissed, Moussaoui's case will likely be transferred to a military tribunal. Moussaoui has more rights in a federal criminal trial than he will in a tribunal.