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March 29, 2002
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The Conspiracy Trial - U.S. to Seek Death Penalty for Moussaoui in Terror Case

by Philip Shenon and Neil A. Lewis, The New York Times

WASHINGTON - The Justice Department announced today that it would seek the death penalty for Zacarias Moussaoui, the only person charged in the Sept. 11 terrorist attacks.

The department said in papers filed in federal court in Alexandria, Va., a Washington suburb, that Mr. Moussaoui, a 33-year-old French citizen, deserved to die because he helped plan attacks that culminated in "the largest loss of life resulting from a criminal act in the history of the United States."

Mr. Moussaoui, who has pleaded not guilty, is charged with conspiring with Osama bin Laden and the Qaeda terrorist network in the attacks.

Law enforcement officials have said they believe that Mr. Moussaoui was sent to the United States by Al Qaeda last year to learn to fly and that he was intended to be the 20th hijacker on Sept. 11.

He was not been charged with carrying out the killings, however, since he was in a Minnesota jail cell on the day of the attacks. He had been arrested the month before for visa violations after he raised the suspicions of an instructor at an Eagan, Minn., flight school.

In announcing that he had approved a request from local prosecutors to seek the death penalty, Attorney General John Ashcroft said today that there were many reasons "we believe the death penalty is appropriate."

"Among these reasons," Mr. Ashcroft said, "is the impact of the crime on the thousands of victims."

Still, legal scholars said the department might find it difficult to convince a jury that Mr. Moussaoui should be executed for conspiracy to carry out murders, as opposed to direct involvement in the murders. Specialists in capital punishment said this appeared to be the first time prosecutors had sought the federal death penalty on the basis of conspiracy charges alone.

The Justice Department's decision drew protests from the French government, which had threatened to withhold cooperation in the investigation of Mr. Moussaoui if the death penalty was sought. France abolished the death penalty in 1981.

Still, Foreign Minister Hubert Védrine of France said his country would continue to cooperate with the United States in the larger war against terrorism.

Mr. Moussaoui's defense team had no immediate comment on the death penalty decision, saying they would respond in papers due next month in the court in Alexandria. But they were critical of Mr. Ashcroft.

"It's astounding that the attorney general would call a news conference, given the sensitivity that he should be showing to Moussaoui's right for a fair trial," one defense lawyer, Edward B. MacMahon Jr., said.

Under the federal death penalty law, prosecutors must show that Mr. Moussaoui met one of four conditions that show he was in some way responsible for the Sept. 11 deaths. Two of the conditions require that the defendant be involved in the killing itself, but in its filing today, the department said Mr. Moussaoui met the remaining two conditions.

The department said Mr. Moussaoui "intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victims died as a direct result of the act." It added that he "intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person."

Both conditions appear to refer to Mr. Moussaoui's behavior in taking flight lessons and receiving money from the same source as the hijackers, the elements that comprise the conspiracy charge.

Eric Holder Jr., the deputy attorney general in the Clinton administration who was involved in other death penalty cases, said that the obstacle prosecutors faced was substantial.

"But there's lots of evidence that shows his behavior mirrored that of the hijackers," Mr. Holder said.

James Orenstein, a former Justice Department official who helped write the procedures for prosecutors in death penalty cases, said, however, he thought there were serious obstacles to sustaining a death penalty judgment. For one, the Supreme Court suggested in a 1987 case that if the government wanted to execute someone who did not directly participate in a crime, prosecutors must show that person played a major role.

Mr. Orenstein, a lawyer at Baker & Hostetler in New York, also said the defense was certain to argue that Mr. Moussaoui was unaware of the plans to attack the Pentagon and the World Trade Center.






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