Moussaoui decision casts doubt on terrorist cases

White House lawyers say ruling could undermine civilian prosecutions


WASHINGTON - Bush administration lawyers said yesterday that a judge's decision to throw out most of the case against Zacarias Moussaoui, a confessed al-Qaida member, might undermine efforts to prosecute terrorists in civilian courts and increase the pressure on the government to move terrorism suspects to military tribunals.

The concern was clear at the Justice Department, which was unwilling yesterday to say how - or even whether - it would proceed with the case against Moussaoui, the only person charged in an American court with conspiring in the terror attacks of Sept. 11, 2001.

On Thursday, the judge, Leonie M. Brinkema of U.S. District Court in Alexandria, Va., ruled that the government could not seek the death penalty against Moussaoui and that prosecutors would be barred at trial from trying to link him in any way to the Sept. 11 attacks.

Brinkema said it would be unfair for the government to seek Moussaoui's execution, given its refusal to allow him to interview captured al-Qaida terrorists who might provide useful testimony for his defense. In raucous court hearings last year, Moussaoui, a French national, declared his loyalty to al-Qaida and to Osama bin Laden but insisted that he had nothing to do with the Sept. 11 attacks.

Justice Department officials said late yesterday that they were still weighing several options in response to the ruling.

The options, they said, included appealing the decision to the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., with the hope that the court would reinstate the original prosecution case; proceeding with the more limited conspiracy case that Brinkema's ruling would permit and seeking a life sentence for Moussaoui; or pursuing a new grand jury indictment of Moussaoui that would try to deal with some of the judge's fair-trial concerns.

They acknowledged that talk had resurfaced at the White House and the Pentagon about the possibility of abandoning the civilian prosecution of Moussaoui and turning him over to the Defense Department for a military tribunal, a trial under military law in which he might have more limited rights to seek testimony from the captured terrorists.

"Everything is under discussion," said a senior Justice Department official, speaking on condition of anonymity. "I can't be certain of it, but I'm still optimistic that the Justice Department will keep control of the case and that we will bring Moussaoui to justice."

Administration lawyers conceded yesterday that Brinkema's ruling, if challenged in an appeals court, might well survive an appeal, setting a precedent that would hinder the Justice Department every time it sought to bring a major terrorism suspect to trial in the civilian justice system.

"If Judge Brinkema's ruling stands, it means that every single person tried in federal court for terrorism will do exactly what Moussaoui has done," said John Yoo, a University of California law professor who worked at the Justice Department for most of the past two years, helping develop the department's policies on terrorism prosecution.

"Like Moussaoui, they will call for access to every al-Qaida terrorist in U.S. custody somewhere in the world," he said. "It will be terrorism graymail, and the government will be very vulnerable to it." Graymail is a term used in criminal courts, typically in espionage and other national security cases, in which prosecutors are forced to deal with defense maneuvers that threaten the public disclosure of classified information.

The issue began to threaten the Moussaoui prosecution last fall, after the United States captured Ramzi Binalshibh, a Yemeni in his early 30s who was a key logistician for the Sept. 11 attacks.

In Moussaoui's indictment, Binalshibh was listed as the key go-between for Moussaoui and the Sept. 11 hijackers. After learning of his capture, court-appointed lawyers for Moussaoui quickly demanded access to Binalshibh for questioning, saying he might have valuable information for the defense.

In two separate orders this year, Brinkema ordered the Justice Department to make Binalshibh available to the defense, but the Bush administration refused, saying that defense testimony from captured al-Qaida terrorists could endanger national security.

The Justice Department has argued that Moussaoui's constitutional rights to seek defense testimony do not extend to enemy combatants held overseas by the United States - an argument that Brinkema and many prominent criminal-law scholars have rejected.

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