Judge Rules Out Death Penalty for Moussaoui

A federal judge Thursday banned prosecutors from seeking the death penalty against Zacarias Moussaoui or using any evidence or testimony at his trial that links the alleged terrorist conspirator to the Sept. 11 attacks.

The decision by U.S. District Judge Leonie M. Brinkema of Alexandria, Va., leaves the government with several options for prosecuting the only person charged in connection with the attacks on the World Trade Center and the Pentagon, which killed about 3,000 people.

Prosecutors could turn to the federal appeals court in Richmond, Va., to reverse the judge’s order and allow them to return to her courtroom with the death penalty and Sept. 11 evidence reinstated in the case.

Or they could transfer the case against the former flight student to a military tribunal, where the government would have more control over how Moussaoui is tried and what punishment he might receive. Paul J. McNulty, the U.S. attorney overseeing the case, said the government was still considering its options.

The judge found that Moussaoui could not get a fair trial in her courtroom after prosecutors defied her order to allow other captive terrorist suspects to assist him by testifying that he was not a part of the Sept. 11 operation.

The government contended that such an arrangement would seriously compromise national security by allowing terrorists to communicate with one another and try to circumvent the U.S. judicial system.

That clash -- pitting the desire of the executive branch to prosecute suspected terrorists against fundamental principles of the judicial system -- has delayed the case for nearly a year. It was initially billed as the first, and perhaps only, open civilian court trial to rise out of the terrorist tragedy.

The stakes are enormous for the government, especially as the Bush administration seeks to hold someone other than the 19 suicide hijackers accountable for the mass murders at the World Trade Center, the Pentagon and a farm field in Pennsylvania.

A trial on the Sept. 11 charges in an open, federal court had promised to allow victims and relatives of the dead to have their say before a judge and jury, and it would have provided the government’s first public airing of evidence obtained in the massive federal investigation.

Defense lawyers assisting Moussaoui suggested that prosecutors should not appeal and instead take Moussaoui to trial before Brinkema on the remaining counts in the indictment, which contend that he was aligned with Osama bin Laden’s Al Qaeda terrorist network. If convicted of those charges, he could receive a maximum of life in prison.

“The government has said before that the dispute over access to these witnesses had put it to a Hobson’s choice of compromising national security or allowing an accused terrorist to go free,” the attorneys said. “Today’s opinion allows the government to avoid that dilemma entirely.”

But McNulty insisted that Moussaoui, a 35-year-old French citizen who sought airplane pilot training in Oklahoma and Minnesota in the months before the attacks, should be held responsible for the deaths.

“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,” McNulty said.

“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.”

Brinkema said her order would not take effect “until after the United States has been given an opportunity to appeal.”

She also strongly suggested that she did not necessarily believe that Moussaoui had a significant role in the Sept. 11 operation -- a contention that she implied could be affirmed with the testimony on his behalf by three Al Qaeda leaders in U.S. custody.

They have been identified as Ramzi Binalshibh, Khalid Shaikh Mohammed and Mustafa Ahmed al-Hawsawi.

“The defense,” she said, “has made sufficient showings that the detainees at issue could offer testimony which would undermine the government’s contention that the defendant intentionally ‘participated in an act’ or ‘engaged in an act of violence’ that directly resulted in thousands of deaths on Sept. 11, 2001.

“The defense has also adequately demonstrated that the detainees could provide testimony supporting the contention that Moussaoui may have been only a minor participant in the charged offenses.”

She explained that since she was confining the government to putting on a conspiracy case against Moussaoui, rather than one in which he allegedly was a key player in the Sept. 11 attacks, the death penalty should not be an option.

“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 the defendant, himself, had any direct involvement, or knowledge of, the planning or execution of those attacks,” she said.

She also said that because Sept. 11 would not be the focus of the case and there would be no death penalty phase of the trial, she would not allow government evidence such as cockpit voice recordings from the hijacked planes, video footage of the World Trade Center collapse or photographs of the Sept. 11 victims.

Moussaoui was arrested in August 2001 in Minnesota, after coming under suspicion because of his erratic behavior by a flight instructor, who alerted the FBI.

In countless handwritten messages to the court, many filled with epithets and slurs against America, Moussaoui has steadfastly denied any role in the attacks.

But he has vowed his allegiance to Bin Laden and hinted that he was being prepared for some other terrorist attack.

The government, however, has maintained that Moussaoui was active in the conspiracy. It has said he attended training camps in Afghanistan, traveled to the United States, enrolled in and attended flight schools in this country, purchased weapons, purchased flight deck videos and received money from Binalshibh.