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COVER STORY: 9/11 terrorists exploited our open society, started a war, and retreated to the shadows. Now these shadow warriors want to take advantage of another of our open institutions: the criminal court system. Will the system work for us-or for them? The lead prosecutor in the case of terrorist Zacarias Moussaoui last week asked an appeals court to make the system protect Americans

Issue: "Terror on trial," Oct. 18, 2003

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.

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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.

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