The Justice Department's hopes of salvaging its case against Zacarias Moussaoui in civilian court rested on Tuesday with a no-nonsense federal trial judge who has repeatedly questioned the government's efforts to prosecute Moussaoui with so much of the case against him kept secret from the public -- and from Moussaoui.
The case against Moussaoui, the only person charged in an American court with conspiring in the Sept. 11 terror attacks, is nearing collapse because of the government's refusal to comply with a ruling by Judge Leonie Brinkema that would allow Moussaoui to interview a captured member of al-Qaeda.
On Monday, the department announced that it would refuse to make the captured terrorist available for testimony on national-security grounds, a move it acknowledged could force Brinkema to dismiss the indictment.
Whatever Brinkema does, the Justice Department has made clear that it will likely appeal her decision to the 4th US Circuit Court of Appeals in Richmond, Virginia, which oversees the work of the Alexandria court and is generally considered the most conservative federal appeals court in the nation.
Administration officials said that if the charges were dismissed, Moussaoui would almost certainly be moved to a military tribunal, ending the Justice Department's involvement in the case and jeopardizing plans to prosecute other al-Qaeda suspects in civilian court.
The captured terrorist, Ramzi Binalshibh, a confessed participant in the Sept. 11 attacks who figures prominently by name in Moussaoui's indictment, was taken into custody last year in Pakistan.
In January, Brinkema ruled that Moussaoui, who is facing the death penalty and is trying to act as his own lawyer, had a right under the Constitution to interview such an important witness. She ordered that a deposition be taken in a videoconference at an undisclosed overseas location.
Brinkema, a former federal prosecutor who was named to the bench by President Bill Clinton in 1993 and is considered one of the least predictable judges in the district court in Alexandria, Virginia, gave no hint on Tuesday of what she would do about the government's defiance of her ruling, or when she would act.
But it is clear from opinions dating back to last year that Brinkema has suspected that the government's insistence on keeping secrets in its case against Moussaoui would lead to the stalemate.
In a ruling in April, Brinkema criticized the government for the "shroud of secrecy under which it seeks to proceed" in prosecuting Moussaoui, adding that she sided with defense lawyers in their "skepticism of the government's ability to prosecute this case in open court."