Nothing Comes Easy

When American prosecutors charged the French Moroccan Zacarias Moussaoui 17 months ago with conspiring in the Sept. 11 attacks, they didn't count on the case becoming a Pandora's box of legal nightmares. First he fired his lawyers and peppered his court appearances with denunciations of the U.S. Then the judge ruled he had the right to question Ramzi Binalshibh, an al-Qaeda member now in U.S. custody who says he was central to the execution of the attacks and, according to some reports, that Moussaoui was not involved. Last week federal prosecutors — arguing that the threat to national security of allowing Moussaoui to question Binalshibh outweighs Moussaoui's rights as a defendant — asked an appellate court in Richmond, Virginia, to reverse the judge's ruling in Moussaoui's favor. "Of course it should be permissible" for Moussaoui to question Binalshibh, says former prosecutor E. Lawrence Barcella. "But post-9/11, they're looking at this as war, not justice."

If Moussaoui prevails in this legal round — the decision is probably several weeks away, and court observers say the conservative panel could go either way — he'll keep pressing. Sources familiar with the defense tell TIME that Moussaoui also wants to question at least two other al-Qaeda members now in U.S. custody. One of them is likely to be Khalid Sheikh Mohammed, thought to be the mastermind of 9/11. Rather than allow that, it's a safe bet the government would take the case out of civilian courts and transfer it to a military tribunal. Air Force Colonel Will Gunn, the acting chief defense counsel for the tribunals, has said he's convinced that "we're going to be able to provide a zealous defense for all detainees brought before trial." Still, it's all but certain that a military court wouldn't allow Moussaoui to call witnesses like Binalshibh. Meanwhile, at the U.S. base in Guantanamo, where most of the captured al-Qaeda members are being held and any military tribunals will take place, discussions have already started about the possible need to build an execution chamber.