Back in April, I addressed at some length the Fourth Circuit’s decision reviving the prosecution of Zacarias Moussaoui for complicity in the 9/11 plot. (See). The Appeals court ruled, contrary to Virginia federal district judge Leonie Brinkema, that Moussaoui would not be denied a fair trial by the government’s denial to him of access to captured al Qaeda prisoners (like Khalid Sheik Mohammed) as long as the Justice Department prepared an adequate substitution — a written summary that would allow the defendant to place before the jury any interrogation statements these terrorists had made that might be helpful to his case.

At the time, both sides appeared cautiously optimistic that they’d be able to work out a substitution. But as we noted at the time,”both sides will have reason to consider an appeal to the Supreme Court. Even if there is no immediate appeal, it is a lot easier [for a court] to order parties to work out a substitute than it is actually to work out a substitute. Additional long delay is certainly conceivable.”

Yesterday, nine months later, Moussaoui — unhappy with the government’s proposals — appealed to the Supreme Court. (see.) Even assuming a decision in favor of the government by the end of the current term (i.e., by late June), it is hard to imagine Moussaoui’s trial beginning before 2006. (If they tried to start in the fall, one assumes Moussaoui would vigorously object to a trial that began anytime close to September 11, which annually causes a spate of publicity about the attacks.)