A Federal judge ruled yesterday that prosecutors cannot seek the death penalty and cannot present any evidence Zacarias Moussaoui knew of or was involved in the September 11, 2001, attacks because the US Government refuses to allow him to question al Qaeda captives.
The sanctions imposed by US District Judge Leonie Brinkema go to the heart of the Government's case against Moussaoui, the only person charged in the United States in connection with the hijacked plane attacks that killed 3000 people.
Brinkema refused to take the expected step of dismissing all the charges against Moussaoui as the sanction for the Government's refusal to give him and his lawyers access to top al Qaeda operatives.
"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," she wrote.
Moussaoui, a Frenchman of Moroccan descent who was being held in Minnesota on immigration charges when the attacks occurred, could still be sentenced to life in prison if convicted. He is now in a Virginia jail, pending trial.
Brinkema said the prosecution of the case could still go forward with the sanctions she imposed.
"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," the judge wrote in the 15-page ruling.
Her decision was surprising, as Moussaoui and his lawyers had recommended dismissal, and even prosecutors said they would not object to dismissal of the indictment as the surest way to get prompt review of the issues on appeal.
Moussaoui says the al Qaeda captives can help to prove he was not involved in the September 11 attacks.
Although Moussaoui denies being involved in the attacks, he has admitted being a member of Osama bin Laden's al Qaeda network, which the US blames for the terrorism.
Brinkema explained why the death penalty could not be sought.
"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.
Brinkema also explained that prosecutors could not present any evidence or argument that Moussaoui had been involved in or knew about the planning and execution of the attacks.
"It would simply be unfair or require Moussaoui to defend himself against such prejudicial accusations while being denied the ability to present testimony from witnesses who could assist him in contradicting those accusations," she said.
Brinkema said her ruling shall not take effect until the United States Government has had a chance to appeal.
If the Government were to lose on appeal, it then could drop the case and decide to try Moussaoui before a military tribunal, which would give him fewer protections.
Prosecutors had argued that US national security would be gravely harmed if any details were revealed about the sensitive interrogations of the prisoners, who are held in undisclosed areas outside the United States.
The Bush Administration could decide to move Moussaoui's case to a military tribunal, where national security would likely trump a defendant's access to witnesses.