- The Washington Times - Thursday, March 9, 2006

ASSOCIATED PRESS

The judge in the trial of Zacarias Moussaoui warned prosecutors yesterday that they were on shaky legal territory in seeking the death penalty against the confessed al Qaeda conspirator.

“I must warn the government it is treading on delicate legal ground here,” U.S. District Judge Leonie Brinkema said at the conclusion of the day’s testimony, after the jury had left the courtroom. “I don’t know of any case where a failure to act is sufficient for the death penalty as a matter of law.”

The key issue in Moussaoui’s sentencing trial has been his failure to disclose his terrorist ties to federal agents when he was arrested in August 2001 on immigration-law violations. He is the only person charged in this country in connection with the September 11 attacks.

Both sides agree Moussaoui lied to the FBI, but they differ on what Moussaoui was legally obliged to do given the Fifth Amendment’s guarantee against self-incrimination.

Prosecutors argue that once Moussaoui agreed to talk to federal agents, he was required to tell the truth — to confess his ties to al Qaeda and his plans to fly an airplane into the White House. The defense argues he was not required to confess.

The issue is crucial because, to obtain the death penalty, prosecutors must prove that federal agents would have prevented at least one death on September 11, 2001, if Moussaoui had not lied. Their case would be much easier if that means Moussaoui also was obligated to disclose his al Qaeda membership and terrorist training.

Judge Brinkema made her comments as she rejected a defense motion for a mistrial.

Moussaoui’s attorneys were angry because they thought a question from prosecutor David Novak implied to the jury that Moussaoui had an obligation to speak to FBI agents even after he had invoked his right to a lawyer two days into questioning by the FBI. Agents immediately stopped questioning him at that point.

Judge Brinkema said she did not feel a mistrial was warranted because she struck Mr. Novak’s question from the record as soon as he asked it.

The issue developed as the FBI agent who arrested Moussaoui testified that he suspected the student pilot from France was a terrorist, but that Moussaoui’s lies impeded the investigation by sending agents on “wild goose chases” away from his links to al Qaeda and the terror network’s leader, Osama bin Laden.

Harry Samit testified that the lies sent agents futilely searching London — the home listed on Moussaoui’s passport — for associates he said had given him money, but that Moussaoui never mentioned the alias used by Ramzi Binalshibh, an al Qaeda operative, to wire him cash from Germany.

“The answers dictate the logical course of the interview,” said Mr. Samit, who arrested Moussaoui in 2001 for immigration-law violations. “You can’t ask logical follow-up questions if he provides misleading answers.”

The 37-year-old Frenchman of Moroccan descent did not admit getting money from Binalshibh for almost four years — not until he pleaded guilty last April to conspiring with al Qaeda to fly planes into U.S. buildings.

The jury here will decide whether that guilty plea will put Moussaoui to death or imprison him for life.

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