ERROR IN BARRING MOUSSAOURI DEATH PENALTY

[AussieMark]

U.S. Says Error in Barring Moussaoui Death Penalty

WASHINGTON (Reuters) - U.S. prosecutors argued that a judge abused her power by barring the death penalty for accused Sept. 11 conspirator Zacarias Moussaoui as punishment for the government's refusal to allow him to question al Qaeda captives, according to court documents released on Friday.

The prosecutors said in written arguments to a U.S. appeals court in Richmond, Virginia, that the sanctions imposed by the judge "will deny the jury key evidence and deny the public and the victims of September 11 full justice."

U.S. District Judge Leonie Brinkema on Oct. 2 barred the death penalty and said prosecutors could not present any evidence about Moussaoui's knowledge of, or involvement in, the Sept. 11 attacks because the government has refused to allow him to question three al Qaeda captives.

Moussaoui is the only person charged in the United States in connection with the hijacked plane attacks that killed nearly 3,000 people.

He wants to question 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.

All three were captured abroad and are being held by the United States at an undisclosed location overseas. Moussaoui says they could help prove his innocence at his trial.

The prosecutors also argued that enemy combatants seized and detained overseas are beyond the reach of a U.S. court's jurisdiction, and they cited national security grounds.

They said the judge failed to properly balance the government's "overwhelming" interest in protecting national security against Moussaoui's "deficient" showing of the need for the testimony at trial.
The prosecutors warned that Brinkema's analysis "threatens the government's ability to prosecute any terrorists for the crimes of September 11 or any terrorists for any future attacks."

Moussaoui denies being involved in the Sept. 11 attacks but has admitted being a member of Osama bin Laden's al Qaeda network, which the United States blames for the attacks.

Prosecutors said that barring the death penalty "arbitrarily deprives the victims and the greater community of the appropriate and just sentencing process."

"The sanction deprives the community of its voice in sentencing defendant, an admitted member of al Qaeda, who participated in the most heinous crime ever committed on American soil," they said in the 96-page brief.

Moussaoui's court-appointed lawyers will file written briefs next, and oral arguments are scheduled in early December.

If the government loses its appeal, it could decide to shift the case to a military tribunal which would give Moussaoui fewer protections.