Judge bars death sentence for September 11 accused
A judge dealt a severe setback to the only US prosecution arising from the September 11 attacks, ruling that the government cannot seek to execute Zacarias Moussaoui or introduce trial evidence linking the al-Qaida loyalist to the suicide hijackings.
US District Judge Leonie Brinkema punished the government yesterday for refusing court orders to make three high-level al-Qaida prisoners available to Moussaoui.
She forced the Bush administration to choose between taking the dispute over witnesses to a federal appeals court or moving Moussaoui’s case from a civilian court to a military tribunal.
Prosecutors rejected the third option of presenting the government’s case without September 11 testimony, even though the indictment alleges that Moussaoui was part of a much broader al-Qaida conspiracy against the US.
“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 September 11, 2001,” US Attorney Paul McNulty said in reaction to the ruling.
Judge Brinkema rejected dismissing all charges, a punishment proposed by Moussaoui and his lawyers and not contested by the government – which saw dismissal as the surest way to trigger an appellate court intervention.
The judge expressed doubt about a military tribunal, which could include closed proceedings, saying Moussaoui should be tried in the “open and public forum” of a civilian court.
The trial of Moussaoui has been delayed by the unprecedented legal dispute over his access to al-Qaida captives, enemy combatants held abroad in secret locations.
Judge Brinkema concluded that the defendant, a French citizen, had a constitutional right to witnesses who might exonerate him or save him from the death penalty.
The government countered that Moussaoui has no right to question al-Qaida prisoners, whose every word of trial testimony could reveal classified information and harm the war against terrorism.
Prosecutors were especially chagrined at the possibility of Moussaoui directly questioning his al-Qaida colleagues, a right he would normally have because he’s representing himself.
“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,” Mr McNulty said.
But Judge Brinkema said Moussaoui deserved access to witnesses who might back up his claim that he was not part of the September 11 attacks.
The judge concluded that “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”.
Explaining the elimination of the death penalty, she said: “That the United States has deprived Moussaoui of any opportunity to present critical testimony from the detainees at issue in defence of his life requires, as a sanction, the elimination of the death penalty as a possible sentence.
“The defendant remains exposed to possible sentences of life imprisonment.”
The judge postponed the effect of her ruling so the government could appeal.
