Moussaoui Interview

Frank Rubino: Judge likely to drop terror case

Tuesday, September 30, 2003 Posted: 3:25 PM EDT (1925 GMT)

(CNN) -- A federal judge is expected to rule this week whether or not to drop the case against Zacarias Moussaoui, the only suspect in the United States accused of being a part of the September 11, 2001, terror attacks.

Tuesday morning, criminal defense attorney Frank Rubino joined CNN anchor Heidi Collins to discuss the legal maneuvering in the case, which centers around Moussaoui's request to interview three al Qaeda detainees as witnesses for his defense. Below is an edited transcript of that conversation.

COLLINS: Federal prosecutors and Moussaoui's defense team have both asked for a dismissal but, as you might imagine, for very different reasons. With us now from Miami to talk about the legal maneuvering [is] criminal defense attorney Frank Rubino.

How likely is it that the judge will actually dismiss this case?

RUBINO: I think it's very likely the judge will dismiss the case.

COLLINS: Why is that?

RUBINO: Well, what'll happen is, if the judge does not dismiss the case at this stage, it will turn into a chess game. Now what'll happen is she will reissue her order allowing them to take the three depositions. The government, then, will not allow this to occur. It will then evolve into a sanctions hearing and the only appropriate sanction would be at that time for the judge to then dismiss the case for the government's failure to comply. It's almost like a dog chasing its tail; it's going to end up at the same place.

COLLINS: Now, as we already mentioned, we know that both parties have asked for a dismissal. I want to know why. And then, also, I know that you say that usually it's unlikely that a judge will deny a request like this when both parties have asked, but that this case is so very different it could have a different outcome.

RUBINO: Well, as I say, the judge is in the position where ultimately the government is not going to comply. Therefore, she's going to have to dismiss it anyway. The reason both sides want it is, the defense wants it, of course, because how could they possibly go forward with a trial when their client would be denied his constitutional right to call witnesses on his behalf.

On the other hand, the government wants it, obviously, to maneuver him into a military trial instead of a civilian trial.

COLLINS: All right, let's talk for a moment, if we could, about the three al Qaeda captives. Why is the government blocking Moussaoui's access to them? And [it is] important to point out, as well, to just remind everyone, that Moussaoui is representing himself and what that might have to do with this.

RUBINO: That's the whole problem. If Moussaoui were represented by active counsel, not standby counsel, then they would receive a security clearance under what we call CIPA, Classified Information Procedures Act, and they would be able to receive classified information. And I don't think the government would then oppose the depositions because they could then take them out of Moussaoui's presence.

In this case, we can't allow Moussaoui to be taking these depositions and receiving classified information. It's kind of like sending the fox into the hen house.

COLLINS: The defense, you say, can obtain this classified information, but there are safeguards.

RUBINO: Yes, it's a particular law called CIPA, Classified Information Procedures Act, where we have in place and have had in many, many cases a framework for receiving classified information. And that would be utilized but for the fact Moussaoui does not have an active defense attorney.

COLLINS: All right. So, if he is brought before a military tribunal, then, if that is the next step, how will he fare? Is this going to be a more difficult process and possibly a more difficult sentence?

RUBINO: It will be, obviously, a more difficult process for Moussaoui. It will be a much easier and less complex process for the government because you will not have the same strict rules of evidence and won't have the public scrutiny.