Convicted terrorist Zacarias Moussaoui's drawn-out appeal is revealing new information about interrogation tapes in possession of the CIA and that prosecutors on the case knew that a CIA interrogation tape of Abu Zubaydah had been destroyed.
The main argument of Moussaoui's appeal is that the government withheld evidence from his defense and that the CIA had submitted declarations in 2003 to the U.S. District Court in Alexandria that no recordings of detainee interrogations existed.
The government first admitted it had tapes of interrogations in a letter, dated Oct. 25, 2007, which was disclosed last November. In that letter the Justice Department acknowledged the CIA had filed inaccurate declarations in Moussaoui's case.
"Further the CIA came into possession of the three recordings under unique circumstances involving separate national security matters unrelated to the Moussaoui Prosecution," the letter said.
The CIA acknowledged on Dec. 6, 2007, that interrogation videotapes of two al Qaeda detainees who had been waterboarded had been destroyed.
That same day in a top secret court motion rebutting the appeal by Moussaoui's lawyers, prosecutor David Novak acknowledges, "Moussaoui's proposed areas of inquiry address the existence of recordings for the six other enemy combatant witnesses." A footnote in the filing denies allegations of torture, claiming "to the contrary, the videotapes show [redacted] sitting in a chair answering questions."
In a top secret court filing dated Nov. 21, 2007, that was declassified today, Moussaoui's appeal lawyers Justin Antonipillai and Barbara Hartung said in their argument for a hearing on the issue before the Fourth Circuit Court of Appeals that "the October 25th letter fails to provide any adequate reassurances that there are not other recordings of pertinent detainee interrogations either in the government's possession or in the possession of foreign governments but accessible to the United States."
Moussaoui's request to have the U.S. District Court review and consider the tapes was denied by the 4th Circuit Court of Appeals in a January 16, 2008 order. Moussaoui's overall appeal of his case could be considered and argued before the 4th Circuit in the future.
Additional declassified material that has been revealed as a result of Mousaoui's appeal included a Dec. 18, 2007 letter filed by the government in the case, which notes that Robert Spencer, the lead attorney on the Moussaoui prosecution team, had been informed that the interrogation tape of Abu Zubaydah had been destroyed.
"It appears that the former prosecutor in this case, Robert Spencer, may have been told in late February or early March 2006 about videotapes of Abu Zubayah's interrogations and their destruction," the letter says.
"Mr. Spencer, who was one of three AUSA constituting the prosecution team in March 2006, does not recall being told this information, but another eastern district of Virginia AUSA who was not on the prosecution team, recalls telling him on one occasion," the letter continues.
"The other AUSA , who learned about the video taping of Zubaydah in connection with the work he preformed on a Department of Justice project unrelated to the Moussaoui case recalls brining the matter to Mr. Spencer's attention in Mr. Spencer's Capacity as Chief of the Criminal Division, not because of any issue of which the AUSA was aware in the Moussaoui case," it says.
The U.S. Attorney's office for the Eastern District of Virgina, besides handling the Moussaoui prosecution, also oversaw a task force on detainee abuses.
Before Moussaoui's trial the defense attempted to gain witness testimony from senior al Qaeda commanders who could have discussed Moussaoui's role in the terrorist organization and operations he was involved in. Litigation over access to the detainees delayed Moussaoui's trial until 2006, even though he had been arrested in August 2001, before the 9/11 attacks.
During the trial the defense submitted written substitutions of what al Qaeda commanders would have testified to if they had been allowed to testify in person.
Moussaoui's appeal lawyers now argue that the revelation of interrogation tapes may have influenced different rulings from the trial judge and previous Appeal Court rulings in the case.
"If the tapes showed, for example, that the witnesses were subject to torture or other coercive methods of interrogation, the district court or this court may have reached a different conclusion about the adequacy of substitutions," the appeal states.
In a Dec. 6, 2007 motion filed with 4th Circuit Court of Appeals in Richmond, David Novak, one of the Moussaoui trial prosecutors, argues that the CIA's errors do not bear any weight on Moussaoui's appeal.
"The government's disclosure on October 25, 2007, explaining that it had learned that previous declarations by the CIA contained an error because the CIA had in its possession recordings [redacted] has no bearing on the voluntariness of Moussaoui's guilty plea… the existence of the recordings did not prejudice Moussaoui in the district court," the motion said.
"The transcripts that we have produced for the Court demonstrate the recordings do not contain information about Moussaoui or the September 11th plot, let alone any 'egregiously impermissible conduct," Novak's motion said.
As part of his appeal, Moussaoui's lawyers have asked that the District Court judge who presided over the trial, Judge Leonie Brinkema, be able to view recording the government does have in its possession, noting they may contain "torture and coercive methods of interrogation." In the government's motion Novak rebuts any notion of torture writing."
Novak also asserts in the filing from Dec. 6: "To date we have been informed that no other tapes exist… as of this writing, we have been unable to verify whether the recording still exists."
Novak also states that Moussaoui by pleading guilty in April 2005 had waived any right to appeal his case, "In this case… Moussaoui acknowledged that he understood his guilty plea precluded him from raising any constitutional challenges to his guilt."