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Us appeals ban on death penalty moussaoui case { December 3 2003 } Original Source Link: (May no longer be active)
http://www.nytimes.com/2003/12/03/national/03CND-TERR.htmlhttp://www.nytimes.com/2003/12/03/national/03CND-TERR.html
December 3, 2003
U.S. Appeals Ban on Death Penalty in Moussaoui Case
By BRIAN KNOWLTON,
International Herald Tribune
WASHINGTON, Dec. 3 — Government lawyers asked a federal appeals court today to overturn a decision banning the death penalty for Zacarias Moussaoui, a confessed member of Al Qaeda who is charged with conspiring in the terror attacks of Sept. 11, 2001. But judges questioned whether Mr. Moussaoui could get a fair trial if the government blocked him from questioning three Al Qaeda figures in his defense.
The lawyers asked the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., to throw out a ruling made in Federal District Court in Alexandria, Va., that would bar the government from even seeking to link Mr. Moussaoui to the 2001 attacks unless such witnesses were allowed.
The Al Qaeda figures might reveal information of use to other terrorists, said Paul D. Clement, a lawyer for the government.
The government has maintained that the lower-court ruling could have a debilitating impact on the war on terror, threatening "the government's ability to prosecute any terrorists" for past or future attacks.
But a defense lawyer said today that the government sought to deprive Mr. Moussaoui of one of the most fundamental rights: a fair trial.
Mr. Clement, the deputy solicitor general, also told the court that it would be wrong for Mr. Moussaoui to profit from government advances in the war on terror by granting him access to the three men.
"What the defendant seeks is sort of a windfall" from the war on terrorism, Mr. Clement said.
The three judges, who are expected to rule within weeks, closely questioned lawyers for both sides.
Judge Karen J. Williams asked, "Is there no right" for Mr. Moussaoui to reach the witnesses and use their favorable testimony?
Mr. Clements said there was no constitutional right for defendants to benefit from such "a windfall."
But Frank Dunham, the public defender leading Mr. Moussaoui's legal team, said that windfalls happened all the time in criminal cases and that their fortuitous nature did not exclude their use.
Mr. Moussaoui had argued earlier, and a lower-court judge agreed, that he could not properly defend himself without the right to call witnesses who could cast doubt on the six charges against him, all of which seek to link him to the planning of the Sept. 11 attacks.
Mr. Moussaoui is the only person facing trial in a United States court on charges of conspiring in the suicide attacks on New York and Washington, which killed nearly 3,000 people.
Mr. Dunham asked whether the government should be able to seek the death penalty in connection with those attacks while blocking Mr. Moussaoui from calling witnesses with close knowledge of the planning of the attacks.
"The answer to that question is a resounding no," Mr. Dunham said. "Our system of American fair play and justice will not allow such a result."
He added, "This is more about who we are than it is about Moussaoui."
There seemed to be sympathy for that argument from the panel.
When Mr. Clement said the government could not make the witnesses available because they were part of a "military operation to prevent future terrorist attacks," Judge Roger L. Gregory asked, "At what point is national security so important that a person can't get a fair trial?"
On Oct. 2, Judge Leonie M. Brinkema of the Federal District Court in Alexandria issued the ruling that the government cannot seek death for Mr. Moussaoui unless it allows him to call the three detainees.
The Sixth Amendment to the Constitution sets out a defendant's right "to have compulsory process for obtaining witnesses in his favor."
But Mr. Clement said the amendment did not allow for evidence to be given by foreign witnesses held outside the United States. The government has not said specifically where the men Mr. Moussaoui seeks as witnesses are being held, only that they are outside the United States.
Also, the government has held out the possibility of dropping the trial in civilian court and moving him to a military tribunal.
In a series of legal actions since the 2001 attacks, the government has defended its sweeping authority in dealing with terror suspects. But some critics have said that defendants' fundamental judicial rights have been trampled.
In a separate case, the Defense Department said on Tuesday that it would, after all, allow an American citizen of Saudi descent being held as an enemy combatant to consult with his lawyer, who is Mr. Dunham. The man, Yaser Esam Hamdi, has been held in military brigs, first in Virginia and now in Charleston, S.C., since April 2002, apparently after capture on an Afghan battlefield.
The Pentagon said that it had determined that giving Mr. Hamdi access to legal counsel would not compromise national security. The case, it added, "should not be treated as a precedent."
Mr. Moussaoui has admitted to being a follower of Osama bin Laden, the leader of Al Qaeda, and to training for a terror attack. But he has denied having a part in the Sept. 11 planning.
Mr. Moussaoui has said that the three men he seeks as witnesses — Ramzi bin al-Shibh and Khalid Shaikh Mohammed, believed to have planned and coordinated the Sept. 11 attacks, and Mustafa Ahmed al-Hawsawi, suspected of helping finance them — would bear him out.
Judge Brinkema expressed frequent exasperation with Mr. Moussaoui in the months he represented himself in her court, and she finally ruled that he had lost the right to do so, but she supported him in some crucial pretrial rulings.
Mr. Moussaoui was arrested in August 2001 on immigration charges after trainers at a Minnesota flight school grew suspicious when he requested lessons in piloting large airplanes. That December he was charged with taking part in a broad Qaeda conspiracy to commit acts of terrorism, including those of Sept. 11.
Copyright 2003 The New York Times Company
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