U.S. Attorney Paul McNulty last week asked the 4th U.S. Circuit Court of Appeals for a speedy review of the government's case against Zacarias Moussaoui. Defying speculation that the Bush administration might move the case to a military tribunal-or drop it altogether-Mr. McNulty instead petitioned a three-judge panel of the appeals court for something that may be riskier: to rule by early December on the case's current merits.
In an interview with WORLD, Mr. McNulty, the government's lead prosecutor of terrorism cases, said he and his team of lawyers reached the decision to appeal despite a federal district judge's throwing out most of the government's case, the first proceedings to arise from Sept. 11 attacks.
"We believe that the justice system has to be available as a tool to deal with terrorism cases. We cannot move to military tribunals as the only option," Mr. McNulty told WORLD.
He hopes the appeals panel will overturn the district court rulings, which effectively place Mr. Moussaoui's rights as a defendant ahead of the latitude sought by the government to prosecute terrorists in civil court.
Mr. Moussaoui is the alleged 20th hijacker. Authorities believe he should have been on United Airlines Flight 93, which headed to Washington but crashed in Pennsylvania. It had four hijackers onboard, while the other two planes had five hijackers apiece. The government is charging him with assisting the other hijackers and the al-Qaeda network in carrying out the strikes on New York City and Washington, D.C.
Federal District Court Judge Leonie M. Brinkema ruled that the government could not seek the death penalty against Mr. Moussaoui. She also ruled that prosecutors would be barred at trial from trying to link Mr. Moussaoui to Sept. 11 attacks-in short, gutting their case.
Her decision arose from the prosecution's refusal to allow Mr. Moussaoui access to three al-Qaeda prisoners who may be called as witnesses at his trial. Mr. McNulty insists that to grant that kind of prisoner-to-prisoner access would compromise classified information and possibly national security. Even so, the negative ruling did not stun him. "She had to punish us," he said. "It was her duty to sanction the government for refusing to comply with the order of the court."
But he admitted that the extent of the sanctions-denying capital punishment and denying the most substantial charges brought by the government-were more far-reaching than he anticipated. An outright dismissal, he said, "would have been the cleanest and clearest basis for an appeal."
As the case now stands, the appellate court can declare open season on both the prosecution's case thus far and Judge Brinkema's decisions. It could decide to reinstate the original charges. That would clear the way for the U.S. attorney to proceed as he originally planned.
Mr. McNulty told WORLD the government will continue to seek the death penalty.
But by appealing, Mr. McNulty also risks that the appellate judges will uphold the district court rulings. That not only would leave Mr. Moussaoui's case in doubt; it could also saddle the government with intolerable restrictions for bringing other terrorist cases to trial. Defendants will be encouraged to demand access to every al-Qaeda terrorist the government is holding, setting up lengthy maneuvers in a tactic the legal profession calls "graymail."
"All of this is about how to deal with classified information, which the government has an obligation to protect," Mr. McNulty said. "It is a fundamental question about the reach of the Sixth Amendment, the right of a defendant to have access to witnesses anywhere."
The Sixth Amendment of the U.S. Constitution guarantees the right to a "speedy and public trial." It also allows for "compulsory process" whereby defendants have the right to call witnesses and confront those presented by the prosecution. Courts have already ruled extensively on whether the government must identify its witnesses beforehand, just not in global terrorist cases. In the Moussaoui case, the court will have to decide, according to Mr. McNulty, "How far does the Sixth Amendment reach to protect defendants and how far does it go to protect the U.S. government?"
Some in the Bush administration have for two years argued that military tribunals would solve just that dilemma. President Bush signed an executive order in November 2001 authorizing military tribunals to try foreigners accused of terrorism. The tribunals would depend on a two-thirds vote of panels of three to seven members (except for death penalty cases, which would have to be unanimous), rather than the unanimous verdict of a 12-member jury, as in civil courts. Convicted defendants could not appeal their case to federal court. They would have to rely on a review panel, which could include civil and military officers. The tribunal rules do allow defendants to review the evidence against them.
Mr. McNulty declined to comment on whether the administration is actively considering the tribunal option in Mr. Moussaoui's case. "That's an issue that never enters into my world. It's a White House call," he said.
For many, the Moussaoui case should be open and shut, what an FBI agent once called "the brightest burning case." A French citizen with Moroccan background, Mr. Moussaoui was already in U.S. custody when the Sept. 11 attacks happened, arrested in Minnesota on an immigration violation after he raised the suspicions of flight-school instructors there.
In his home following his arrest, officers found two knives, a manual for a Boeing 747, along with items containing the name of Ramzi bin al-Shibh, a Sept. 11 planner now in U.S. custody. The federal indictment indicates that Mr. bin al-Shibh wired up to $30,000 to Mr. Moussaoui during his seven months in the United States prior to the attacks.
In handwritten notes he submitted to the court, Mr. Moussaoui declared himself "a dedicated enemy of the United States of America." He swore allegiance to Osama bin Laden but said in one motion, "The record can show that I constantly rejected any participation in 9/11.... Instead, as I said in open court, I was part of a different operation, with different al-Qaeda member and target."
At one point in his court appearances, Mr. Moussaoui gave a serene 50-minute statement quoting from the Koran and praying for the destruction of the United States and Israel.
According to The Washington Post, Mr. Moussaoui met with the suspected mastermind of the September attacks, Khalid Shaikh Muhammad, who provided him with money and contacts. That information came from Mr. bin al-Shibh.
At his request, Judge Brinkema granted Mr. Moussaoui access to three al-Qaeda captives: Mr. bin al-Shibh, Mustafa Ahmed al-Hawsawi, the paymaster, and Mr. Muhammed. The government refused to make the all-star witnesses-all subject to prosecution themselves-available. It claimed that Mr. Moussaoui's constitutional rights to seek defense testimony do not extend to enemy combatants held overseas by the United States.
Mr. McNulty said he offered Judge Brinkema a compromise. Mr. Moussaoui could not meet face-to-face with the prisoners but prosecutors were willing to submit their testimony in advance, in summary form, via the court. The judge rejected that option.
Mr. McNulty was confirmed as U.S. Attorney for the Eastern District of Virginia, a district that includes the Pentagon and much of the metro Washington area, three days after the Sept. 11 attacks.
As a special assistant to Attorney General John Ashcroft when the attacks took place, he helped man a command post at FBI headquarters that day. Driving home that evening past the burning Pentagon, he later told a Virginia newspaper, he realized that "all our lives have changed, really forever."
In two years' time, his office has prosecuted more terrorism-related cases than any of the 93 other U.S. attorneys across the country. They include the most high-profile cases involving Mr. Moussaoui and John Walker Lindh.
Mr. McNulty was central to crafting a plea agreement in the Lindh case, allowing Mr. Lindh to plead guilty to two counts of aiding the Taliban while dropping charges of assisting al-Qaeda and conspiring to kill Americans. Mr. Lindh is currently serving a 20-year sentence and cooperating with the government.
Mr. McNulty, reared in a Democratic home, shifted toward conservatism during four years at Grove City College outside his native Pittsburgh. During that time he also went from the Catholicism he grew up with to Presbyterianism, and has served as an elder at his Northern Virginia church.
At 45, he has spent two decades in Washington on Capitol Hill and at the Justice Department. He's grown accustomed to controversial tight spots. He served as chief counsel for the House Judiciary Committee during impeachment proceedings against former President Clinton. He was a spokesman at the Justice Department under the first President Bush. He directed the current President Bush's Justice Department transition team, helping to prepare Mr. Ashcroft for contentious confirmation hearings.
"The fact that we are experiencing challenges to work through is not a repudiation of the criminal justice system," Mr. McNulty said after leaving the 4th Circuit courthouse. Complicated cases proceed slowly. "We have to be patient as a community."
Mr. McNulty said he believes many people are confused by the goals of the court system-justice-and the job to uphold national security. "But I don't think they are mutually exclusive. They should work together."
Many of the terrorist-related cases originating in Mr. McNulty's Alexandria, Va., offices don't make above-the-fold headlines. When he announced this past summer the indictment of 11 men (nine of them U.S. citizens) on charges of conspiring to join Lashkar-e-Taiba, a Kashmir-based terror group believed to have ties to al-Qaeda, it was a little-noticed reminder "that terrorist organizations of various allegiances are active in the United States," he said at the time. "And these groups exploit America's freedom as a weapon to recruit and position themselves on our shores."
Stopping them before they pose significant threats to national security, he said, is the unique role of law enforcement and the criminal justice system. "We are trying to prevent someone from starting these sleeper cells, from concealing their identities in our communities. To hold someone accountable under the law, that is a different value. It sets us apart. It's something we have to pursue."