The US Justice Department said on Monday that it would defy a court order and refuse to make a captured member of al-Qaeda available for testimony in the case of Zacarias Moussaoui.
The department acknowledged that its decision could force a federal judge to dismiss the indictment against Moussaoui, the only person facing trial in the US in connection with the attacks of Sept. 11, 2001.
In court papers, the department said Attorney General John Ashcroft had determined that testimony from the accused terrorist Ramzi Binalshibh, a confessed participant in the Sept. 11 attacks, "would necessarily result in the unauthorized disclosure of classified information" and that "such a scenario is unacceptable to the government."
"The government recognizes that the attorney general's objection means that the deposition cannot go forward and obligates the court now to dismiss the indictment unless the court finds that the interests of justice can be served by another action," the department said in the papers filed in federal district court in Alexandria, Virginia.
Bush administration officials have said for months that if Moussaoui's indictment were dismissed, his prosecution would almost certainly be moved to a military tribunal, where Moussaoui would be expected to have fewer rights to gather testimony from witnesses like Binalshibh.
The Justice Department's decision had long been expected and came after extended courtroom battles before Judge Leonie Brinkema, the trial judge, in which the department had insisted that testimony from Binalshibh would damage national security. Brinkema had set a deadline of Monday for the department to state its plans for the case.
Binalshibh, of Yemen, was captured last year in Pakistan. He is identified in Moussaoui's indictment as the go-between for Moussaoui and the Sept. 11 hijackers.
Administration officials say that they are worried that if Moussaoui is allowed to interview Binalshibh, it will open the door for other terrorist suspects to demand access to captured Qaeda members, undermining those prosecutions as well.
Despite the government's objections, Brinkema has ruled that Moussaoui, who has pleaded not guilty and is facing the death penalty, has a constitutional right to question Binalshibh, and the US Court of Appeals for the Fourth Circuit, in Richmond, Virgina, has declined to overrule her decision.
In its latest ruling, the appeals court said on Monday that it had rejected a government motion that would have effectively frozen activities in Brinkema's courtroom. On a 7-5 vote, the court also turned down a Justice Department request that the full court reconsider a decision made last month by a panel of three of its judges that upheld Brinkema's decision to allow Moussaoui access to Binalshibh. The three-judge panel said that, at this point in the pre-trial preparations, it had no jurisdiction to intervene.