U.S. Will Seek Death for Sept. 11 Suspect

Prosecutors told a federal court Thursday that they will seek the death penalty against suspected Al Qaeda terrorist Zacarias Moussaoui in connection with the attacks on the World Trade Center and the Pentagon, even though he was in jail Sept. 11 and apparently had no direct links to any of the 19 hijackers.

The 33-year-old French citizen deserves to die, prosecutors alleged in a much-awaited court filing, because his actions in support of the terrorist attacks were “heinous, cruel and depraved” and contributed to the deaths of more than 3,000 people and the destruction of billions of dollars in property.

The novel decision, which experts said stretches the limits of legal theory in capital cases, sparked immediate protests from death penalty opponents and deepened a diplomatic rift between the United States and Moussaoui’s native country. France, which banned capital punishment in 1981, had appealed to Washington two weeks ago, asking it not to seek Moussaoui’s execution.

French Justice Minister Marylise Lebranchu said Thursday in Paris that she regretted Atty. Gen. John Ashcroft’s decision to reject the French plea. She said that while France will continue to cooperate in the U.S. probe into the Sept. 11 attacks, “under no circumstances” would it turn over any evidence that could be used to press a death sentence against Moussaoui.

Ashcroft, a strong supporter of the death penalty, said he would not be swayed by foreign sentiment on an issue so crucial to American security.

“We ask our counterparts in the international community to respect our sovereignty, and we respect theirs,” he told reporters in Florida in announcing his decision on the Moussaoui death penalty issue.

“And to the extent that they can cooperate and help us, we welcome that cooperation, and we respect their views,” he said. “But . . . it’s clear that America is so concerned about the safety and security of its citizens that certain crimes against the people of this country have been designated as death-eligible by the Congress of the United States.”

Moussaoui is the only person charged in the United States with aiding in the Sept. 11 attacks, and his trial in U.S. District Court in Alexandria, Va., scheduled to begin in October, promises to be the government’s fullest airing of how the plot was carried out.

The FBI suspects that Moussaoui was supposed to be “the 20th hijacker” had he not been arrested in Minnesota in August after his odd behavior at a flight training school drew the suspicion of his instructors.

But investigators acknowledge that there is little strong evidence tying him directly to the plot. Although authorities allege that he was trained in Al Qaeda terrorist camps, received a $14,000 wire transfer in Oklahoma from a former roommate of hijacker Mohamed Atta, and was “an active participant” in the Sept. 11 plot, they have been unable to show that he had any direct contact with the 19 hijackers or suspected terrorist mastermind Osama bin Laden.

Moussaoui’s mother, Aicha Moussaoui, said in France on Thursday that U.S. authorities are using her son as a “scapegoat” because they “can’t find the people who are truly responsible for this crime.”

Moussaoui’s defense attorneys withheld comment on the Justice Department’s decision to seek the death penalty, saying they would respond in court. But they attacked Ashcroft for airing his decision publicly at a news conference just as court papers were being filed.

“The attorney general is breaking the spirit if not the letter of [court] rules every time he holds a press conference to announce a filing. It couldn’t be for any other purpose than to influence the potential jury pool,” said defense attorney Frank W. Dunham Jr.

The bench in the Eastern District of Virginia, where Moussaoui will be tried, is known as the “rocket docket” because of the speed with which it dispatches cases, and is known for its high rate of death penalty verdicts.

Legal analysts said the district’s conservative reputation appears to have played a key role in Ashcroft’s decision to bring a death case there. The capital charges may also increase pressure on Moussaoui to tell what he knows about Al Qaeda’s workings and begin cooperating with investigators to avoid a death sentence, analysts said.

“It’s certainly improper to seek the death penalty to pressure someone to give information,” said Richard Dieter, executive director of the Death Penalty Information Center in Washington. “I would hope that wouldn’t be the goal here, but that’s a worry.”

Justice Department officials refused to comment on Ashcroft’s public airing or the reasoning behind it. “The filing speaks for itself,” said spokesman Bryan Sierra.

In their defense of Moussaoui, his three veteran lawyers will point out that he had been in federal custody for nearly a month when the attacks occurred, a source familiar with their strategy said. They will also cite Bin Laden’s own statements--made on a videotape released by the White House--that many of the hijackers didn’t know until the morning of Sept. 11 they were embarking on a suicide mission.

It is by no means unprecedented for prosecutors to seek the death penalty in a conspiracy case in which the defendant did not actually carry out the killing. There have been at least half a dozen drug kingpins sentenced to death in federal court for the actions of their underlings, and many states have secured death sentences in murder-for-hire schemes and fatal robberies.

In the Oklahoma City bombing, Terry L. Nichols, an accomplice to Timothy J. McVeigh who was not at the scene of the explosion, faced a death sentence on murder and conspiracy charges in federal court, but was sentenced to life instead. A separate state case that could bring the death penalty is pending.

What is highly unusual in the Moussaoui case, analysts said, is that authorities have not alleged that he had any direct or overt role in the Sept. 11 tragedy or events leading up to it, but rather that he engaged in similar activities to the hijackers on a “parallel” track leading up to the attacks.

“This seems like quite a stretch to me,” said Stephen Bright, a law professor and prominent death penalty opponent in Atlanta. “This really tries to twist the law to apply . . . to this fellow. The Justice Department’s attitude seems to be that there’s a war on terrorism on, and we can bend the rules and do things we wouldn’t ordinarily do.”

Seeking the death penalty in such a case “is unique. It’s hard to identify any real precedents for it,” said Dieter of the death penalty center. “His connections to the whole case are somewhat tenuous.”

He noted that the Supreme Court, in a 1982 case throwing out a death sentence against a Florida man who waited in a getaway car during a fatal robbery, prohibited capital punishment against an accomplice who “did not kill or intend to kill.”

In a 1987 case, however, the Supreme Court offered an expanded interpretation, saying that a participant in a crime who shows “reckless indifference to human life” can be executed. In that case, two Arizona men were sentenced to death after they helped their father escape from prison, and the father later killed a family of four in the desert.

Kent Scheidegger, an attorney with the Criminal Justice Legal Foundation in Sacramento, which favors the death penalty, compared Moussaoui’s case to that of a drug kingpin who orders the killing of several rivals from a prison cell. Even though the perpetrator is behind bars when the killing takes place, he can be sentenced to death for the crime, Scheidegger said.

And Eric H. Holder Jr., the second-ranking Justice official under former Atty. Gen. Janet Reno, cited the assassination of Abraham Lincoln, in which several co-conspirators of John Wilkes Booth were convicted of conspiracy charges and hanged, even though none participated in the assassination itself.

“The basic conspiracy law is that if you did something that directly led to the death of people, you can be held liable,” Holder said. “Will the government be able to prove that Moussaoui did things that without a doubt led to the deaths? His actions mirror the actions of the other 19 hijackers, so that is good circumstantial evidence. And you have him getting money from the same source as the others.”

But Holder acknowledged that securing the penalty “is not an easy case. . . . Instinctively people will say, ‘Wait a minute, he was in custody.’ The government will have to overcome that and prove he was still engaged in the conspiracy on that day.”

Beyond the legal ramifications of employing a fairly untested court theory, analysts said Ashcroft’s decision to seek the death penalty against Moussaoui could prove counterproductive in sustaining international support for the U.S. war on terrorism--especially after criticism over the Bush administration’s pursuit of military tribunals for terrorist suspects.

“I think it is incredibly shortsighted,” said Juliette Kayyem, a terrorism expert at Harvard University’s Kennedy School of Government. “If we are serious about a war on terrorism being a coalition, and we want support from our Western European allies, no matter how good this [decision] makes us feel on some visceral level, we have to think of the long-term consequences of this.”

France contributed elements to the case against Moussaoui, particularly about his alleged rise in the Islamic extremist underground of Europe and his alleged stints at Al Qaeda training camps. Moussaoui has been a target of French investigators for years because of his alleged terrorist activity.

Remi Marechaux, a spokesman for the French Embassy in Washington, said France hopes to find a way to continue cooperating with the U.S. probe without furnishing evidence that could be used to put Moussaoui to death.

“We’re confident the Americans will provide for a fair trial,” he said. “But we oppose the death penalty--as do all the other countries of the European Union--whether it’s against Mr. Moussaoui or anyone else. That’s just a general principle.”

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Times staff writers David G. Savage in Washington and Sebastian Rotella in Paris contributed to this report.