Government to appeal judge's ruling barring death penalty for Moussaoui

Prosecutors also forbidden from trying to link him to Sept. 11 terrorist attacks


WASHINGTON - The Justice Department announced yesterday that it will appeal a judge's ruling that would bar federal prosecutors from seeking the death penalty against Zacarias Moussaoui and from trying to convince a jury that he was linked to the terrorist attacks on Sept. 11, 2001.

The Justice Department's move, made in a brief filing with the 4th U.S. Circuit Court of Appeals in Richmond, Va., suggests that the case against Moussaoui in a civilian court will go on for at least several more months and that the government has put off a decision on whether to move him to a military tribunal. Moussaoui had been the only person facing trial in a U.S. court on charges of conspiring in the Sept. 11 attacks.

In its court filing, the Justice Department did not offer a detailed explanation of the reasons for the appeal. The filing was a formal notice of its intention to appeal and a request for an expedited hearing.

Bush administration officials, speaking on condition of anonymity, said the Justice Department is eager to reinstate the death penalty as a possible punishment for Moussaoui and, more important, to establish a clear precedent in the appeals court allowing the government to block terrorist suspects from gaining access to defense testimony from captured al-Qaida terrorists.

The issue of witness access has threatened to derail Moussaoui's prosecution for nearly a year. The trial judge, Leonie M. Brinkema of U.S. District Court in Alexandria, Va., ruled last week that Moussaoui could not face the death penalty and that prosecutors could not try to link him to Sept. 11 because the government refuses to allow him to interview al-Qaida leaders who are being held overseas as enemy combatants.

Defense lawyers argued, and Brinkema agreed, that the captured terrorists might offer important testimony to support Moussaoui in his insistence that he had nothing to do with the Sept. 11 attacks. Moussaoui, a French citizen who acknowledges being a follower of Osama bin Laden, was arrested in August 2001 after arousing the suspicion of instructors at a flight school where he was in training.

The 4th Circuit is considered the most conservative federal appeals court and is generally receptive to government arguments about national security, but lawyers say the court might be unwilling to block a criminal defendant from having access to potentially important defense witnesses who are in the government's custody.

A Justice Department spokesman, Bryan Sierra, said the department plans to ask the appeals court to overturn every element of the sanctions imposed by Brinkema on the government. "We're not in a position to say on what grounds, but the issues have been clearly identified," he said.

In its filing, the Justice Department asked the appeals court in Richmond to schedule hearings in early December and requested permission to file longer court filings than usually might not be permitted.

Administration officials said last week that government lawyers had considered other options after Brinkema's ruling, including moving Moussaoui immediately to a military tribunal, where his ability to gain access to captured terrorists for testimony might be limited.

Also considered, they said, was allowing Brinkema's ruling to stand and prosecuting Moussaoui on the broader terrorism conspiracy charges that he faces

One of Moussaoui's court-appointed defense lawyers, Frank W. Dunham Jr., said yesterday that he was not surprised by the government's decision to appeal. "I thought Judge Brinkema had come up with a good proposal to protect national security and to allow the prosecution of Moussaoui to go forward," he said. "But they've got to litigate their case, and we've got to litigate ours."

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