The Fourth Circuit today delivered a big blow to Zacarias Moussaoui. While agreeing the Government improperly refused to allow him to interview witnesses being held as enemy combatants who may be able to show he was not a member of the 9/11 attack conspiracy, it said the Judge's remedy of preventing the Government from seeking the death penalty was excessive:

In affirming a lower court ruling, the three-judge panel found "that the enemy combatant witnesses could provide material, favorable testimony on Moussaoui's behalf." But the panel said the lower court's remedy of removing the death penalty was not the proper way to penalize the government for refusing to grant Moussaoui adequate access to the witness statements.

Rather, the court said, the solution should have been for the defense, the prosecution and the judge to decide, for presentation to a jury, statements that would support Moussaoui. The defense must have a major role in crafting a compromise, the court said.