U.S. judge deals setback to Moussaoui terror case

Punishing government, Brinkema bars execution, excludes evidence on 9/11

October 03, 2003|By Naftali Bendavid | Naftali Bendavid,CHICAGO TRIBUNE

WASHINGTON - In a ruling that stunned lawyers on both sides, a federal judge decreed yesterday that prosecutors cannot seek the death penalty against Zacarias Moussaoui, the only person charged in connection with the Sept. 11 terrorist attacks, and prohibited the government from trying to link Moussaoui to the attacks.

The decision is a sharp setback for Attorney General John Ashcroft and for the Justice Department, which has portrayed Moussaoui as intimately involved in the conspiracy to attack the Pentagon and World Trade Center. The ruling leaves intact prosecutors' broader charges that Moussaoui was part of al-Qaida's general plans to kill Americans.

U.S. District Judge Leonie Brinkema suspended her decision so prosecutors could appeal. The government also could withdraw Moussaoui's case from the civilian courts and try him before a military tribunal, meaning that much of the trial would be closed to the public.

Brinkema's ruling stems from the government's refusal to allow Moussaoui access to several men suspected of direct involvement in the Sept. 11 attacks. Letting suspected al-Qaida murderers talk - and possibly plot - among themselves would be a foolhardy threat to national security, prosecutors argue.

But Moussaoui says those detainees could clear him of involvement in the attacks. Moussaoui's lawyers have argued that he has a right to question the witnesses under the Constitution's guarantee of a fair trial, and the judge agreed.

"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 those accusations," Brinkema wrote.

As for the death penalty, she added: "The United States may not maintain this capital prosecution while simultaneously refusing to produce witnesses who could, at minimum, help the defendant avoid a sentence of death."

Both sides had assumed Brinkema would dismiss the case. Prosecutors expected to appeal the dismissal, believing the Richmond-based appeals court would overturn it.

Brinkema's more complex ruling - leaving the case intact while throwing out the central charges - makes it less certain the appeals court would overrule her. Prosecutors appeared taken aback, and said they are considering how to proceed.

"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 war," said U.S. Attorney Paul McNulty.

Moussaoui is serving as his own lawyer. But the court has appointed "standby counsel" to look out for his interests, and those lawyers applauded yesterday's ruling.

Edward MacMahon, one of the standby lawyers, said Brinkema's ruling should resolve the government's concern that it would have to choose between letting Moussaoui interview the other suspects or letting him go free. Her decision allows prosecution of the case without the threat to national security, he said.

While the government might still appeal, its prospects seem less promising than they did before Brinkema's ruling.

Although the 4th U.S. Circuit Court of Appeals is considered among the most conservative appeals courts in the nation, its judges might be reluctant to overturn Brinkema's opinion, analysts said.

"To the extent that it's more narrowly drawn, it may make it harder for the court of appeals to overturn," said Eugene Fidell, a Washington lawyer specializing in military law. "It's a more nuanced approach. The court of appeals in Richmond has an allergy to meat-axe approaches."

President Bush also could decide to declare Moussaoui an enemy combatant subject to a military tribunal, which would remove him from the civilian justice system. Many believe the rules in a tribunal would favor the prosecution.

But such a decision could prove an embarrassment. When Moussaoui was indicted in December 2001, the government made much of its decision to prosecute him in open court, saying it could convict suspected terrorists with all the protections the Constitution affords ordinary criminal defendants.

"When they announced this prosecution, it was to demonstrate that the alleged terrorist Zacarias Moussaoui could receive a fair and just trial in the criminal justice system of the Eastern District of Virginia," said Steven Benjamin, a defense lawyer who practices in the area. "It's pretty obvious that they didn't really mean that."

The Chicago Tribune is a Tribune Publishing newspaper.

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