- The Washington Times - Wednesday, July 17, 2002

Prosecutors indicted Zacarias Moussaoui a third time yesterday to ensure he could face the death penalty if he is convicted of conspiring to commit the September 11 terrorist attacks.
The new indictment says Moussaoui, the only person charged in the attacks, "knowingly created a grave risk of death to one or more persons" and committed crimes in "an especially heinous, cruel and depraved manner involving torture and serious physical abuse."
Moussaoui, 34, was originally indicted in December when he was brought up on charges that he plotted with the September 11 hijackers.
The Bush administration has said it would seek to execute Moussaoui if he is convicted of conspiracy to commit terrorism and other charges related to the attacks on the World Trade Center and the Pentagon.
Legal analysts said the government filed the new indictment because of a recent Supreme Court ruling that requires prosecutors to explain before a jury the "aggravating factors" of a crime if they want to seek the death penalty. Under the June 24 Supreme Court ruling, only a jury can determine the facts justifying a capital sentence.
In anticipation of the new indictment, Moussaoui's court-appointed defense team last week filed a motion arguing the death penalty would be unconstitutional because the statements in the new indictment were left out of the original charges handed up by a grand jury last December.
The defense argued that Congress would have to get involved if prosecutors were going to be allowed to return to the grand jury to present a new indictment with the "aggravating factors" included.
"The real question now is whether it's necessary for Congress to get involved to amend the federal death penalty, or whether prosecutors can obtain [new] indictments to get the issue of aggravating circumstances properly before the jury," said Ira Robbins, an American University law professor following the Moussaoui case.
Moussaoui will be rearraigned under the terms of the new indictment tomorrow before U.S. District Court Judge Leonie M. Brinkema in Alexandria.
Moussaoui is accused of taking actions similar to the 19 hijackers who carried out the September 11 attacks, including enrolling in flight school. Prosecutors said he would have been "the 20th hijacker" had he not been in custody for immigration violations when the attacks occurred.
Under the standing indictment, Moussaoui is charged with conspiracy to commit terrorism, pirate aircraft, destroy aircraft, use weapons of mass destruction, murder U.S. government employees and destroy property. The trial for the Moroccan-born French citizen is scheduled to begin Sept. 30.
The court last week dismissed several of the more than 70 pretrial motions Moussaoui has filed, including one to "compel the FBI to confess publicly that they were lying."
Moussaoui successfully won the right to represent himself last month, but Judge Brinkema has instructed public defender Frank W. Dunham Jr. to sit with Moussaoui in case the defendant needs legal advice or becomes disqualified from self-representation.


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