The Bush administration's hopes of trying the only person charged over the 11 September 2001 attacks in a civilian court were drastically reduced yesterday after a judge said prosecutors could not seek the death penalty against Zacarias Moussaoui and neither could they use evidence that linked him to the terror attacks on New York and Washington.
US District Judge Leonie Brinkema said she was punishing the Government for refusing to obey her ruling that would allow Mr Moussaoui the right to calls as witnesses three alleged al-Qa'ida members. The Bush administration argued that doing so would be damaging to national security.
Government prosecutors had expected that Judge Brinkema would actually dismiss the case, allowing them to then appeal to a different court and proceed with their prosecution of the French citizen charged with conspiracy.
Her decision, to rule against the death penalty and bar any evidence linking him to the attacks of 11 September, was not expected. It means it is much more likely the administration will place Mr Moussaoui before a military tribunal.
"The interests of justice require that the government has the opportunity to prove the full scope of the conspiracy alleged in the indictment, which included the brutal attacks on September 11, 2001," US Attorney Paul McNulty said after the judge's decision. "We continue to believe that the Constitution does not require, and national security will not permit, the government to allow Moussaoui, an avowed terrorist, to have direct access to his terrorist confederates."
Mr Moussaoui is accused of participating in a broad conspiracy to commit terrorism against the US, allegations that include but are not limited to the September 11 attacks. He has denied being involved in the planning of the hijackings and the judge has said he had a Constitutional right to call witnesses that could support his claim and prevent him facing the death penalty.
In her ruling she said: "That the United States has deprived Moussaoui of any opportunity to present critical testimony from the detainees at issue in defence of his life requires, as a sanction, the elimination of the death penalty as a possible sentence. The defendant remains exposed to possible sentences of life imprisonment."
She said she was banning any 11 September evidence because "it would be unfair to require [him] to defend against such prejudicial accusations while being denied the ability to present testimony from witnesses who could assist him in contradicting the accusations".
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