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US judge rules out death penalty for 9/11 suspect
( 2003-10-03 11:11) (Agencies)

A US federal judge ruled on Thursday that the government cannot seek the death penalty against Zacarias Moussaoui and barred prosecutors from attempting to link him to the terror attacks on Sept. 11, 2001, because of their refusal to permit Mr. Moussaoui to interview captured terrorists whose testimony might aid in his defense.

The ruling by Judge Leonie M. Brinkema was a sharp rebuke to the Justice Department, which had previously attempted to portray Mr. Moussaoui as a central figure in the Sept. 11 conspiracy whose actions could have prevented the attacks on the World Trade Center and the Pentagon.

Mr. Moussaoui had been the only person facing trial in an American court for conspiring in the Sept. 11 attacks. But in throwing out much of the case brought against him, Judge Brinkema described Mr. Moussaoui as a `'remote or minor participant" in Al Qaeda's plans for terrorism directed at the United States.

While refusing to a defense request to dismiss the indictment entirely, Judge Brinkema said that Mr. Moussaoui could not get a fair trial on any of the charges involving the Sept. 11 attacks if he was denied access to witnesses held overseas who helped plan the attack.

Since the government has refused to make the terrorists available for questioning by Mr. Moussaoui and his court appointed defense lawyers, "the government will be foreclosed at trial from making any argument, or offering any evidence, suggesting that the defendant had any involvement in, or knowledge of, the Sept. 11 attacks," Judge Brinkema wrote on Thursday.

"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 these accusations."

The judge allowed the Justice Department to continue pursuing broader conspiracy charges that alleged ties between Mr. Moussaoui and Qaeda terrorism plots.

The Justice Department had no immediate comment today on whether it would appeal Judge Brinkema's decision, and whether her ruling would increase pressure on the Bush administration to abandon the prosecution of Mr. Moussaoui in a civilian court and move him to a military tribunal.

Judge Brinkema's ruling here in Federal District Court in the Virginia suburbs of Washington was a response to the Bush administration's refusal to obey a pair of orders that she issued earlier this year allowing Mr. Moussaoui to interview captured Qaeda terrorists held overseas who were involved in planning the terrorist attacks.

Judge Brinkema said on Thrusday that defense lawyers had "adequately demonstrated that the detainees could provide testimony supporting the contention that Moussaoui may have been only a minor participant in the charged offenses."

Mr. Moussaoui and his court appointed lawyers had sought access to, among others, Ramzi bin al-Shibh, a captured Qaeda leader who had previously been described by the Justice Department as Mr. Moussaoui's paymaster and as the central go-between for Mr. Moussaoui and the Sept. 11 hijackers.

As to the prosecution's request for the death penalty, Judge Brinkema said: "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 Mr. Moussaoui had any direct involvement or knowledge in the planning of the attacks.

In response to the ruling, the Justice Department released a statement from Paul J. McNulty, the United States attorney in Alexandria, who said: "We are studying the court's opinion to determine how best to proceed.

"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. 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."

Senior Bush administration officials involved in the case, speaking on condition of anonymity, predicted that the government would appeal Judge Brinkema's decision to the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., in hopes of resurrecting many of the terrorism charges that were struck in her ruling.

But other officials in the Justice Department insisted that the administration was weighing several other options, including going forward with the far more limited terrorism conspiracy case outlined by Judge Brinkema in hopes of convicting Mr. Moussaoui on charges that might send him to prison for life.

"We are weighing a large universe of possibilities," a senior department official said. "Judge Brinkema has given us lots to think about."

John Yoo, a law professor at the University of California at Berkeley who worked at the Justice Department for most of the last two years developing prosecution strategy in terrorist cases, said in an interview that he would be surprised if Judge Brinkema's ruling was not appealed.

"I think it's fair to say that the ruling is a rejection of the Justice Department's whole theory of the case," Professor Yoo said. "I think this has to go to the Fourth Circuit, and I think it's a tossup what the Fourth Circuit will do."

Judge Brinkema had warned for months that she intended to sanction the Justice Department, possibly even dismissing the entire indictment against Mr. Moussaoui, because of its refusal to abide by her orders on the captured Qaeda prisoners.

While Judge Brinkema has a reputation for unpredictability and has often been overturned by the appeals court in Richmond, prosecutors and defense lawyers who often practice before her routinely describe her as fair, thoughtful and well-prepared. A former federal prosecutor herself, she was appointed to the bench in 1993 by President Bill Clinton.

In this case, prominent criminal-law and constitutional specialists say her decision to sanction the Justice Department was well-founded, and that Mr. Moussaoui and his lawyers had a strong argument under the Sixth Amendment to demand access to witnesses who might aid in his defense.

The Sixth Amendment provides criminal defendants with the right both to confront accusers and to seek out testimony that might prove their innocence. The Justice Department has argued that Sixth Amendment rights do not extend overseas to testimony from enemy combatants held during a time of war ?in this case, a war against terrorism.

Judge Brinkema did not expand on her description of Mr. Moussoui as "a remote or minor participant" in Qaeda's plotting for terrorist attacks in the United States.

But in nearly two years of directing trial preparations for Mr. Moussaoui, she has been privy to highly classified intelligence information about his background and about his possible ties to the terrorist network and the Sept. 11 attacks. Mr. Moussaoui was arrested on immigration charges in August 2001, after arousing the suspicions of instructors at a flight school in Minnesota where he had sought pilot training for passenger jets.

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