U.S. District Judge Leonie Brinkema said she was disturbed the government had classified so many pleadings, orders and court opinions. Brinkema said she joined in Moussaoui's skepticism about the government's ability to prosecute him in open court.
Brinkema's order came at a crucial time, when the government has appealed her secret order granting Moussaoui access to captured al Qaeda prisoner Ramzi Binalshibh.
If the 4th U.S. Circuit Court of Appeals upholds the defendant's constitutional right to potentially favorable material, the government could decide to drop the case in a civilian court and proceed to a military tribunal where greater secrecy would be allowed.
The case has become a dispute between the government's right to protect national security and a defendant's constitutional right to information and witnesses who could help his case.
A key problem is that Moussaoui is representing himself and is not cleared to receive the information he says he would need to defend himself, and he cannot attend hearings where classified matters are discussed.
While court-appointed lawyers remain in the case to represent his interests, Moussaoui has chosen to avoid contact with the attorneys — who do have clearances and access to the classified material.
Moussaoui, the lone defendant in the United States accused of conspiring with the Sept. 11 hijackers to commit terrorism, could face the death penalty if convicted.
The French citizen, arrested a month before the attacks in 2001, has requested unclassified, uncensored copies of the transcript of a closed, Jan. 30, 2003, hearing and a secret opinion of the court issued last March 10.
Brinkema ordered the government to respond. Prosecutors had no immediate comment.
"In particular, the defendant complains that he first learned of the prosecution's theory of the case in reading the heavily redacted version of the court's memorandum opinion and argues that he is entitled to know the facts underlying the government's theory so that he can prepare his defense," Brinkema said.
The judge pronounced herself "disturbed by the extent to which the United States' intelligence officials have classified the pleadings, orders and memorandum opinions in this case; and further agrees with the defendant's skepticism of the government's ability to prosecute this case in open court in light of the shroud of secrecy under which it seeks to proceed."
Brinkema added the government apparently has taken inconsistent positions on whether the theory of its case can be classified.