US judge rules out death penalty for 9/11 suspect ( 2003-10-03 11:11) (Agencies)
A US federal judge ruled on Thursday that the government cannot seek the
death penalty against Zacarias Moussaoui and barred prosecutors from attempting
to link him to the terror attacks on Sept. 11, 2001, because of their refusal to
permit Mr. Moussaoui to interview captured terrorists whose testimony might aid
in his defense.
The ruling by Judge Leonie M. Brinkema was a sharp rebuke to the Justice
Department, which had previously attempted to portray Mr. Moussaoui as a central
figure in the Sept. 11 conspiracy whose actions could have prevented the attacks
on the World Trade Center and the Pentagon.
Mr. Moussaoui had been the only person facing trial in an American court for
conspiring in the Sept. 11 attacks. But in throwing out much of the case brought
against him, Judge Brinkema described Mr. Moussaoui as a `'remote or minor
participant" in Al Qaeda's plans for terrorism directed at the United States.
While refusing to a defense request to dismiss the indictment entirely, Judge
Brinkema said that Mr. Moussaoui could not get a fair trial on any of the
charges involving the Sept. 11 attacks if he was denied access to witnesses held
overseas who helped plan the attack.
Since the government has refused to make the terrorists available for
questioning by Mr. Moussaoui and his court appointed defense lawyers, "the
government will be foreclosed at trial from making any argument, or offering any
evidence, suggesting that the defendant had any involvement in, or knowledge of,
the Sept. 11 attacks," Judge Brinkema wrote on Thursday.
"It would simply be unfair to require Moussaoui to defend against such
prejudicial accusations while being denied the ability to present testimony from
witnesses who could assist him in contradicting these accusations."
The judge allowed the Justice Department to continue pursuing broader
conspiracy charges that alleged ties between Mr. Moussaoui and Qaeda terrorism
plots.
The Justice Department had no immediate comment today on whether it would
appeal Judge Brinkema's decision, and whether her ruling would increase pressure
on the Bush administration to abandon the prosecution of Mr. Moussaoui in a
civilian court and move him to a military tribunal.
Judge Brinkema's ruling here in Federal District Court in the Virginia
suburbs of Washington was a response to the Bush administration's refusal to
obey a pair of orders that she issued earlier this year allowing Mr. Moussaoui
to interview captured Qaeda terrorists held overseas who were involved in
planning the terrorist attacks.
Judge Brinkema said on Thrusday that defense lawyers had "adequately
demonstrated that the detainees could provide testimony supporting the
contention that Moussaoui may have been only a minor participant in the charged
offenses."
Mr. Moussaoui and his court appointed lawyers had sought access to, among
others, Ramzi bin al-Shibh, a captured Qaeda leader who had previously been
described by the Justice Department as Mr. Moussaoui's paymaster and as the
central go-between for Mr. Moussaoui and the Sept. 11 hijackers.
As to the prosecution's request for the death penalty, Judge Brinkema said:
"It simply cannot be the case that Moussaoui, a remote or minor participant in
`Al Qaeda's war against the United States,' can lawfully be sentenced to death
for the actions of other members of Al Qaeda, who perpetrated the Sept. 11
attacks, without any evidence" that Mr. Moussaoui had any direct involvement or
knowledge in the planning of the attacks.
In response to the ruling, the Justice Department released a statement from
Paul J. McNulty, the United States attorney in Alexandria, who said: "We are
studying the court's opinion to determine how best to proceed.
"The interests of justice require that the government have the opportunity to
prove the full scope of the conspiracy alleged in the indictment, which included
the brutal attacks on Sept. 11, 2001. We continue to believe that the
Constitution does not require, and national security will not permit, the
government to allow Moussaoui, an avowed terrorist, to have direct access to his
terrorist confederates who have been detained abroad as enemy combatants in the
midst of a war."
Senior Bush administration officials involved in the case, speaking on
condition of anonymity, predicted that the government would appeal Judge
Brinkema's decision to the United States Court of Appeals for the Fourth
Circuit, in Richmond, Va., in hopes of resurrecting many of the terrorism
charges that were struck in her ruling.
But other officials in the Justice Department insisted that the
administration was weighing several other options, including going forward with
the far more limited terrorism conspiracy case outlined by Judge Brinkema in
hopes of convicting Mr. Moussaoui on charges that might send him to prison for
life.
"We are weighing a large universe of possibilities," a senior department
official said. "Judge Brinkema has given us lots to think about."
John Yoo, a law professor at the University of California at Berkeley who
worked at the Justice Department for most of the last two years developing
prosecution strategy in terrorist cases, said in an interview that he would be
surprised if Judge Brinkema's ruling was not appealed.
"I think it's fair to say that the ruling is a rejection of the Justice
Department's whole theory of the case," Professor Yoo said. "I think this has to
go to the Fourth Circuit, and I think it's a tossup what the Fourth Circuit will
do."
Judge Brinkema had warned for months that she intended to sanction the
Justice Department, possibly even dismissing the entire indictment against Mr.
Moussaoui, because of its refusal to abide by her orders on the captured Qaeda
prisoners.
While Judge Brinkema has a reputation for unpredictability and has often been
overturned by the appeals court in Richmond, prosecutors and defense lawyers who
often practice before her routinely describe her as fair, thoughtful and
well-prepared. A former federal prosecutor herself, she was appointed to the
bench in 1993 by President Bill Clinton.
In this case, prominent criminal-law and constitutional specialists say her
decision to sanction the Justice Department was well-founded, and that Mr.
Moussaoui and his lawyers had a strong argument under the Sixth Amendment to
demand access to witnesses who might aid in his defense.
The Sixth Amendment provides criminal defendants with the right both to
confront accusers and to seek out testimony that might prove their innocence.
The Justice Department has argued that Sixth Amendment rights do not extend
overseas to testimony from enemy combatants held during a time of war ?in this
case, a war against terrorism.
Judge Brinkema did not expand on her description of Mr. Moussoui as "a remote
or minor participant" in Qaeda's plotting for terrorist attacks in the United
States.
But in nearly two years of directing trial preparations for Mr. Moussaoui,
she has been privy to highly classified intelligence information about his
background and about his possible ties to the terrorist network and the Sept. 11
attacks. Mr. Moussaoui was arrested on immigration charges in August 2001, after
arousing the suspicions of instructors at a flight school in Minnesota where he
had sought pilot training for passenger jets.
