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.,
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
"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
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
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.
"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.,
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
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
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.