- The Washington Times - Thursday, October 2, 2003

A federal judge in Alexandria ruled yesterday that the Justice Department cannot seek the death penalty for Zacarias Moussaoui, the only man charged in U.S. criminal court in connection with the September 11 attacks.

The ruling was a punishment to the Justice Department for refusing an earlier order by the judge to allow Moussaoui access to other detained al Qaeda suspects, who he says will clear him of involvement in the September 11 plot.

The Justice Department denied Moussaoui such access on grounds that it would compromise national security.

In U.S. District Court in Alexandria, Judge Leonie M. Brinkema also ruled that the Justice Department “may not present at trial any evidence or argument that [Moussaoui] was involved in, or had knowledge of, the planning or execution of” the terror plot.

A more-severe punishment would have been for Judge Brinkema to dismiss all charges against Moussaoui, a French citizen of Moroccan descent. The judge also postponed the effect of her ruling until the Justice Department has an opportunity to appeal it.

Moussaoui, 34, is defending himself in court.

The office of U.S. Attorney Paul J. McNulty, the lead prosecutor in the case, released a statement yesterday that it is still studying Judge Brinkema’s ruling to determine “how best to proceed” with the case.

Two weeks ago, the Justice Department asked Judge Brinkema to drop all charges against Moussaoui, in an effort to expedite its appeal of the judge’s ruling that Moussaoui can question detained al Qaeda suspects.

Among those Moussaoui has asked to interview are suspected September 11 mastermind Khalid Shaikh Mohammed and a key planner of the attacks, Ramzi Binalshibh. The third is Mustafa Ahmed al-Hawsawi, a suspected paymaster for al Qaeda.

In the past 12 months, the case has been ground into legal gridlock by the detainee-access issue, prompting some to wonder why President Bush has not intervened and changed Moussaoui’s status to ‘enemy combatant.’

Doing so would take Moussaoui out Justice Department hands and place him under the Defense Department, where he would wait like other enemy combatants for his fate to be decided in a private military tribunal.

In a military tribunal, national-security interests would likely trump his access to witnesses such as Binalshibh, and military prosecutors would be able to pursue the death penalty for Moussaoui, whose rights would be considerably limited.

It is for that reason that Ira Robbins, a death-penalty expert and professor at American University’s Washington College of Law who is following the Moussaoui case closely, believes that Judge Brinkema has acted very cautiously in her pretrial decisions.

“It seems to me that she is taking small steps to see if this case can be kept in a criminal court rather than have it turned over to a military tribunal,” he said.

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