Moussaoui: an acquittal in the offing?

By Lyle Denniston
on Feb 21, 2005 at 5:00 pm

The Justice Department chose to bring its terrorism case against Zacarias Moussaoui in Alexandria, VA, precisely because it believed that venue would significantly enhance its chances of getting a conviction and a death sentence in the only case in the U.S. charging an individual with crimes related to the September 11, 2001, attacks. Now, the Department, determined to keep the Supreme Court from reviewing the case before a trial could start, is relying upon Moussaoui’s long-shot chance of being acquitted or, at least, of avoiding the death penalty. It is a predictable strategy in a pre-trial case, but it hardly reflects the government’s real expectations.

Moussaoui “has not yet been tried or sentenced, and the course of proceedings below, let alone the outcome of his trial, cannot be definitively predicted,” the Department said in its just-released opposition to Moussaoui’s appeal. (The response was filed February 10, but its public release was held up while classified portions were being edited out.) Denial of review now, the government said, would not bar him from raising his claims after a trial, “if he is convicted on the charges against him.” It added that he ”has not been found eligible for the death penalty or received a death sentence.” It did not note that the government has strenuously resisted taking the death penalty off the table in the case.

Alexandria’s federal courthouse has been good to the Bush Administration in the legal side of its war on terrorism, just as the government expected. The most sweeping victory there, of course, came last year, when three Muslim men were convicted of training for a “jihad” – holy war – over the long-simmering dispute over Kashmir between India and Pakistan. They were charged with planning to aid a Pakistani terrorist group. The case became famous because a key part of the prosecution’s evidence was that the men had played paintball games on the weekends in a Virginia park. Prosecutors said this was “paramilitary training.” The sentences ranged from eight years in prison to life. They were convicted in a bench trial and sentenced by the same judge who is to try Moussaoui — U.S. District Judge Leonie M. Brinkema. (Brinkema protested the length of the sentences that she said the Sentencing Guidelines compelled – a situation that could be altered now that the Supreme Court has declared the Guidelines to be advisory, not mandatory.)

Moussaoui’s trial has been put on hold by Judge Brinkema – over the Justice Department’s firm objections — while he seeks Supreme Court review of a Fourth Circuit decision that denied him direct access to three Al Qaeda witnesses – now being held in a secret overseas location by U.S. intelligence agencies. Moussaoui believes, and the Fourth Circuit agreed, that those witnesses could provide evidence to show that he was not a part of the September 11 attacks. He is, however, charged with six counts of conspiracy tied directly to those attacks. The government will seek the death penalty on four of those counts.

The dispute centers on the Fourth Circuit’s novel decision to limit Moussaoui’s defense team to use rewritten summaries of government-prepared reports on what the Al Qaeda operatives said during interrogation sessions by U.S. authorities. Moussaoui may also submit written questions to those three individuals, with no guarantee of a response. The trial judge, the defense and the prosecution are to get together to fashion the interrogation summaries, according to the Fourth Circuit. Moussaoui’s appeal contends that this is in no way sufficient to make potentially favorable evidence useful in his defense, and is certainly not sufficient to help his lawyers head off a death sentence.

The Justice Department, treating the case as if it were a routine interlocutory appeal, reminded the Supreme Court that it “routinely denies petitions by criminal defendants challenging interlocutory determinations that may be reviewed at the conclusion of the criminal proceedings….The fact that this is a capital case does not change the calculus; indeed, this Court routinely denies review of capital cases in an interlocutory posture.”

And, it goes on, the summaries mandated by the Fourth Circuit have not yet been prepared, and, in any event, the possibility remains open that Judge Brinkema may find the resulting “substitutions” inadequate and strike the death sentencing option. “The remedy issues raised by petitioner could be mooted,” the Department suggests.

Moussaoui’s petition has not yet been scheduled for Conference by the Justices.