New twist in Moussaoui case
on Nov 10, 2005 at 7:26 pm
(The Supreme Court on March 21 refused to hear an appeal by Zacarias Moussaoui, the only person charged with a crime in the U.S. for a role in the September 11, 2001, terrorist attacks. After that, he pleaded guilty. This post is part of continuing reports on the case as it moves toward a trial on the government’s plea for a death sentence.)
Giving Zacarias Moussaoui a partial but significant tactical victory, a federal judge in Alexandria, Va., has ruled anew that he will be able to put before the jury at his death sentencing hearing evidence that Al Qaeda operatives involved in the terrorist attacks have absolved him of a role. In an order signed Nov. 3 and released Thursday with deletions made by government security officers, U.S. District Judge Leonie M. Brinkema rejected a Justice Department argument that Moussaoui no longer needs evidence from those individuals, especially since he has pleaded guilty.
“The defendant’s guilty pleas to the indictment have not reduced the relevance of these witnesses to this case,” the judge found. “The Court finds that these witnesses’ statements remain extremely material to this case” as Moussaoui tries to head off a death sentence, presumably as mitigating evidence.
A complex dispute over how the death penalty proceeding is to be carried out has been waged for months, but mostly behind closed doors and through sealed documents. For example, an earlier order last May 2 in which Brinkema decided to allow Al Qaeda witness evidence into the case over government objections is still under seal, as is the government’s May 13 challenge to that order. Moussaoui’s reply to the government challenge has been released, but only with heavy deletions. Those are the documents behind the latest order by the judge.
The Al Qaeda operatives whose statements may help the defense in the fight against the death penalty have never been officially identified, and the statements they gave — in interrogation by U.S. authorities — remain classified and still subject to negotiation about how the information they contained might be brought into the case. The witnesses themselves need not appear, in person or via videotape, the Fourth Circuit had ruled earlier. Brinkema, however, is still working on ways to get the interrogation results into the death penalty hearing.
The government has made clear, as Judge Brinkema noted in her Nov. 3 order, that it is troubled by “broad disclosure of national security information of high sensitivity” in the Al Qaeda interrogation results. That is why it has fought so energetically to keep them out of the case in any form. Its latest argument about them seems to be that, not only are they not needed because of Moussaoui’s guilty plea, but also that they are unreliable as evidence. Moussaoui disagrees.
In order for the prosecution to have any chance to get a death sentence, it must show that Moussaoui was personally responsible, in some way, for some 3,000 deaths that occurred on 9/11. His defense team thus is intent on showing that he had no role at all in those deaths, and the Al Qaeda witnesses appear to be his best — and perhaps only — hope on that score. They expect to try to persuade the jury that those who actually carried out the attacks considered him to be “untrustworthy, unreliable and unqualified and, therefore, by design, uninvolved in and not aware of, the specific plot,” as a defense brief has put it. (In another behind-closed-doors aspect of this dispute, Moussaoui is seeking access to information from even more terrorist figures held as U.S. captives — an issue not yet resolved by Brinkema.)
Although Judge Brinkema’s new order appears to assure the defense some opportunity to use the Al Qaeda evidence she believes may help him, the order does give the prosecutors a partial victory, too. She agreed with a Justice Department claim that jury instructions could be fashioned to deal with this evidence, to “eliminate the need for the classified information.” She thus concluded that a proper instruction “might satisfy the Court’s concern” about giving the defense some way to use the material.
So, Brinkema said in her order, she would propose “language along the following lines” for such an instruction. But, after that, what she actually proposed was deleted. After the deletion, her order adds: “The specific statements which the parties want to introduce would then be listed in the jury instructions and this instruction would go to the jurors when they deliberate.” She noted, however, that she would impose other duties on prosecutors if the two sides cannot agree on how to craft a jury instruction.
Judge Brinkema has been pressing the officers who classify documents in the case to speed up their review process, so redacted versions could be made public to at least partially illuminate what is going on.
