Anti-terror dud
Last week's decision by a US federal judge to throw out charges linking Zacarias Moussaoui with the 11 September attacks was a huge setback for the prosecution, writes David Tresilian
The case against French national Zacarias Moussaoui, the only person to have been charged in the United States with involvement in the 11 September 2001 attacks on New York and Washington, came close to collapse last week with the announcement by the judge, Leonie M Brinkema, that she was barring US government attempts to secure the death penalty against Moussaoui and throwing out charges linking him to the 2001 attacks.
However, the judge ruled that lesser conspiracy charges against Moussaoui, accusing him of ties to Al-Qa'eda plots, were admissible.
The ruling, made by the judge in the Virginia Federal District Court where the trial is being held and catching both prosecution and defence by surprise, came in the wake of the US government's refusal to allow Moussaoui or his lawyers access to alleged Al-Qa'eda members currently being held in the United States.
In July 2003, the judge had ruled that Moussaoui, who is conducting his own defence with the assistance of court-appointed lawyers, must be allowed access to the alleged Al-Qa'eda members, since interviewing them could be crucial in his attempts to prove his innocence and is guaranteed under the Sixth Amendment to the US Constitution, which guarantees access to witnesses and other evidence to ensure a fair trial.
However, the US Justice Department refused any suggestion that Moussaoui or his lawyers have access to the Al-Qa'eda suspects, citing national security concerns. This led to the defence requesting that the judge dismiss the case to sanction the prosecution's refusal to follow the July 2003 ruling, something expected by both defence and prosecution before last week's ruling and not contested by the prosecution.
But instead of dismissing the case, the judge ruled that "the government will be foreclosed at trial from making any argument, or offering any evidence, suggesting that the defendant has any involvement in, or knowledge of, the Sept. 11 attacks."
"It would be simply 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 wrote.
Regarding the prosecution's demand that Moussaoui receive the death penalty if found guilty of the charges against him, the judge wrote that "it simply cannot be the case that Moussaoui, a remote or minor participant in 'Al Qaeda's [sic] 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 Moussaoui was directly involved.
The defence lawyers had "adequately demonstrated that the [Al-Qa'eda] detainees could provide testimony supporting the contention that Moussaoui may have been only a minor participant in the charged offenses," the judge wrote.
The alleged Al-Qa'eda members to whom Moussaoui had requested access are Khaled Sheikh Mohamed, alleged to be the "mastermind" behind the 11 September attacks, Ramzi Binalshibh, alleged to have planned the attacks, and Mustafa Ahmed Al-Hawsawi, alleged to have financed Al-Qa'eda. All three suspects are being held in military custody in secret locations in the US.
Earlier, the US Justice Department had announced that it would not contest any move by the judge to dismiss the case against Moussaoui, since this would have allowed the prosecution to appeal both the dismissal and the Virginia court's July decision to allow Moussaoui access to the Al-Qa'eda suspects in a higher-level court, the Federal Fourth Circuit Appeals Court.
The Bush administration has also repeatedly warned that if Moussaoui cannot be prosecuted in a civilian court because of Sixth Amendment guarantees or other impediments, he will be tried before a military tribunal, where he will be classified as an "enemy combatant" and benefit from none of the usual constitutional guarantees of a fair trial.
It was not clear how the Justice Department would now respond to the judge's rulings. Contradictory statements released last week indicated either that the US government would now appeal the new rulings in the Fourth Circuit Court in the hope of resurrecting the charges against Moussaoui, or that the government would now settle for the more limited charges accepted by the judge.
Prominent US criminal-law and constitutional specialists speaking to the US newspaper The New York Times last week indicated that the judge's decision to sanction the Justice Department for refusing to follow the court's rulings was "well-founded" and "Moussaoui and his lawyers had a strong constitutional argument to demand access to witnesses who might aid in his defence."
Moussaoui, from Narbonne in the south of France, was arrested in August 2001 for not keeping his papers up to date while in the United States, where he had been since February 2001 learning to fly aircraft at flying schools in Oklahoma and Minnesota.
Following the 11 September attacks, Moussaoui was transferred to a prison in New York and charged with being the "20th man" in the group of 11 September hijackers. While there were five hijackers on each of the planes that hit the World Trade Center in New York and on the plane used to hit the Pentagon in Washington, there were only four on United Airlines Flight 93, which crashed in Pennsylvania not far from Pittsburgh.
According to US prosecutors, had Moussaoui not been arrested in August he would have been the fifth hijacker on UA Flight 93.
In hearings held in July 2002, Moussaoui at first pleaded guilty to four of the six counts originally filed against him, all of which could bear the death penalty, but then withdrew his plea on the advice of the judge, deciding to plead not guilty.
Moussaoui's dramatic changes of plea, his early decision to dismiss his court-appointed lawyers and carry out his defence himself despite his lack of knowledge of the US legal system and imperfect command of English, and his eccentric behaviour have focussed attention on the conditions in which he is being kept in prison in the United States.
Several years kept in a small cell in solitary confinement with lights on 24 hours a day and little contact with the outside world may have affected Moussaoui's mental health, causing him to become incoherent and aggressive.
These developments, together with the ever-present threat of the death penalty, outlawed in all the countries of the European Union, have caused concern in France, where the French Magistrates Union and Human Rights League have requested that the French government not cooperate with the US authorities in prosecuting Moussaoui.
The international human rights organisation Amnesty International has also protested against US government attempts to "circumnavigate normal criminal justice procedures" and against "the growing trend [in the US] to have people classified as enemy combatants and moving such cases into the sphere of military justice".
