The court also ruled that the government could not present any evidence Moussaoui knew of or was involved in the attacks because the U.S. government refused to allow him to question three al-Qaida operatives currently in U.S. custody.
“That the United States has deprived Moussaoui of any opportunity to present critical testimony from the detainees at issue in defense of his life requires, as a sanction, the elimination of the death penalty as a possible sentence,” U.S. District Judge Leonie Brinkema wrote.
Moussaoui has requested the ability to interview top members of al-Qaida in U.S. custody — Khalid Sheikh Mohammed, the accused mastermind of the attacks; Mustafa Ahmed al-Hawsawi, believed to be one of the financiers of the attacks; and Ramzi bin al-Shaibah, the man suspected of coordinating them.
The government rejected the idea even after Brinkema ordered they allow Moussaoui to question the suspected terrorists.
In her ruling Thursday, Brinkema ruled that the government’s actions made it impossible for the court to issue a sentence of death.
“Consistent with well-established principles of due process, the United States may not maintain this capital prosecution while simultaneously refusing to produce witnesses who could, at a minimum, help the defendant avoid a sentence of death,” she wrote.
Although Brinkema did strike down the death penalty, she refused to dismiss the charges completely, a move both the prosecution and defense had sought.
Prosecutors asked last week that Brinkema throw out the charges hoping the move would allow an appeals court to rule on whether Moussaoui could interview the three Sept. 11 attack suspects.
“Essentially what the prosecution did was they said to the judge, we really want to get this out of the way and go up and appeal this to the federal appellate court in Virginia, so we will recommend that you dismiss the case, because that perfects the case procedurally, so that they can go and appeal Judge Brinkema’s decisions ordering access to enemy combatants held abroad,” former Justice Department official John Yoo told the NewsHour last week.
But Brinkema rejected the government’s requests saying they were not in the interest of justice.
“Finding that this case can be resolved in an open and public forum, the court concludes that the interests of justice would not be well served by dismissal,” she wrote in the 15-page ruling.
Although the decision is seen as a blow to the prosecution, Brinkema said her ruling would not immediately take effect, allowing the U.S. government the ability to appeal.
Analysts have said if the government loses on its appeal, it could drop the case against Moussaoui and instead force the French citizen of Moroccan descent to face trial before a military tribunal, which would give him fewer protections.