The Moussaoui Case

JEFFREY BROWN:

Today Justice Department officials considered their next move in the prosecution of Zaccarias Moussaoui. Yesterday, a federal judge in Virginia ruled the alleged terrorist would not be subject to the death penalty in the 9/11 conspiracy. The judge also barred any evidence tying him to the plot. The government has defied the court's order to let Moussaoui question three al-Qaida prisoners.

Joining us to sort through the latest developments in the case is Phil Shenon of the "New York Times." Phil, welcome back. Let's sort out the judge's rulings, if we could. First, she said the government cannot try to link Mr. Moussaoui to 9/11. What was behind that?

PHILIP SHENON:

Well, for most of the last year, we've been stuck in a large debate in her courtroom over the question of whether or not Moussaoui can have access to captured al-Qaida terrorists, who might be able to provide evidence and testimony that would support his contention that he had nothing to do with September 11. The Justice Department, acting on behalf of the White House, refused to make any of those witnesses available. Judge Brinkema said it would be grossly unfair to try Moussaoui for involvement in September 11 if the government won't make available witnesses who might be able to show that Moussaoui had very little to do with September 11.

JEFFREY BROWN:

So in other words she's saying if you won't let him defend himself against the charge, you can't try to link it himself?

PHILIP SHENON:

Precisely, the sixth amendment of the Constitution gives the criminal defendant the right to seek out testimony from witnesses who can support your defense. In this case, the government is saying no, you can't have access to these witnesses even though they most certainly know if you were a participant in 9/11.

JEFFREY BROWN:

The judge also said that the government cannot seek the death penalty. What's behind that ruling?

PHILIP SHENON:

Pretty much the same reason. She is saying how can you consider executing a man for crimes for which he is not permitted to seek out testimony on his own behalf.

JEFFREY BROWN:

The judge referred to Mr. Moussaoui as a remote or "minor participant."

PHILIP SHENON:

That was the most startling part of her ruling yesterday, that she found, after nearly two years of reviewing this case, that Moussaoui appears to be a pretty small fish in the world of international terrorism; raising the question as to whether or not Moussaoui was overcharged and suggesting that perhaps it may have been unfair to consider the death penalty in such case.

JEFFREY BROWN:

You said it was a surprise. You mean a surprise that she showed her hand that clearly?

PHILIP SHENON:

I think so. It's rare that a judge, at this point in the case, would make her own declaration of what she thought the culpability of a defendant was.

JEFFREY BROWN:

Now this was seen as a punishment by the judge, was it not?

PHILIP SHENON:

It was absolutely a punishment. It was the sanction she imposed on the Justice Department because of the Justice Department's repeated refusal to make available these witnesses, she's suggested for an awfully long time that this is what she was going to do or perhaps even dismiss the case. She chose not to do that but has imposed harsh sanctions on the government.

JEFFREY BROWN:

Right. There was some speculation she would dismiss the case. So this punishment caught some people by surprise, I gather.

PHILIP SHENON:

I think it's fair to say it caught everybody by surprise. The Justice Department had actually gone so far last week as to say it was willing to have her dismiss the case because that way they could go to the appeals court with a very clear-cut question — either reinstate all the charges or let Moussaoui go free.

JEFFREY BROWN:

Where does this leave the case now?

PHILIP SHENON:

In great confusion. The Justice Department as of an hour ago, late Friday afternoon, was saying it had no decision what its next step would be in this case. It won't even say if it intends to proceed with the case against Moussaoui, which seems to raise the question as to whether or not this case is headed for a military tribunal.

JEFFREY BROWN:

Well, why don't you lay out the options that the government has now.

PHILIP SHENON:

It can appeal this case to the Fourth Circuit Court of appeals in Richmond. And I think many people think that's the most likely route here, and ask the court to reinstate all the charges that Judge Brinkema knocked out yesterday and ask them to reinstate the death penalty. They could also, perhaps supercede an indictment, a new indictment against Moussaoui that would try to address some of the concerns that Judge Brinkema has raised. It could step up conversations with the Defense Department about moving to a military tribunal. They're saying at the Justice Department that everything really is on the table.

JEFFREY BROWN:

Are there any signs of how they're leaning at this point?

PHILIP SHENON:

I think if you had to ask around, people would say what is most likely finally is that they'll go to the appeals court and take their chances there. And this is an appeals court in the past has repeatedly shown that it is sympathetic to national security arguments from the executive branch.

JEFFREY BROWN:

The judge did leave open the possibility of just proceeding on the broader conspiracy case, whatever that is, I guess.

PHILIP SHENON:

And indeed that's the other option for the Justice Department, which is accepting what Judge Brinkema has done here and going forward with the trial on the more limited charges she will permit. And those are more general allegations of Moussaoui's ties to international terrorism. And the Justice Department could seek a life sentence on those charges.

JEFFREY BROWN:

You said it's all on the table even late this afternoon. Are we expecting a quick decision from the government?

PHILIP SHENON:

I think the Justice Department is playing with fire here and not making a decision quickly because I think they're making it clear to all of us that they really are uncertain what the future of this case is. They are suggesting though that they'll have some sort of decision early next week.

JEFFREY BROWN:

Okay. Phil Shenon, thanks for joining us.