"Statements made by him are hearsay - he is available as a witness," Lodge said. "It is his choice whether he chooses to testify or not."
Angry prosecutors had demanded the move, still seething over yesterday's cross-examination of one of their star witnesses, a terrorist recruit who had testified that viewing web sites and videos prompted him, in part, to take up arms. On cross-examination, the recruit, Khaja Hasan, acknowledged that the Sept. 11 attacks and a trusted cleric's urging were what really prompted him to turn to violence. Both sides had agreed before the trial to stay away from mentioning Sept. 11 and Osama bin Laden, because both say Al-Hussayen had nothing to do with those attacks.
The judge also blocked Al-Hussayen's doctoral adviser, retired University of Idaho professor John Dickinson, from testifying until the defense submits an expert witness report to the prosecutors. The judge expressed anger about complaints from both sides throughout the trial about notice and paperwork.
"It just seems like this whole trial has been proceeding that way - keep the court in the dark, see if the court makes a mistake, and then take advantage of it," the judge fumed.