No Decision Yet, but Discussions Held

By Bradley Graham and Dan Eggen Washington Post Staff Writers Monday, November 11, 2002; Page A07

Frustrated by obstacles in the civilian prosecution of Zacarias Moussaoui, the Bush administration is looking at changing course and attempting to bring the accused al Qaeda terrorist before a military tribunal, government officials said yesterday.

Lawyers for the Justice Department, Pentagon and White House have been discussing the matter, the officials said, confirming a report in yesterday's New York Times. But they said no decision has been reached to end the federal court case and turn Moussaoui over to military authorities.

A White House spokesman said, "There is no such proposal under review by the White House."

Moussaoui, 34, a French citizen, was arrested on immigration charges three weeks before the Sept. 11, 2001, terror attacks after his behavior raised suspicions at a Minnesota flight school. He was indicted last December and is facing trial in Alexandria on charges that he conspired with other al Qaeda members to hijack planes and crash them into the World Trade Center and the Pentagon last year. If convicted, he faces execution. He is the only person charged in a U.S. court with involvement in the Sept. 11 attacks, but while he has admitted belonging to al Qaeda, he has denied any link with the attacks.

Some officials within the White House and Defense Department have long advocated moving Moussaoui into military custody, citing the problems that have dogged prosecution of his criminal case.

But Justice Department officials, including criminal division chief Michael Chertoff and Northern Virginia federal prosecutor Paul J. McNulty, have strenuously argued in favor of keeping the Moussaoui case in a criminal venue and have expressed confidence about winning a conviction and the death penalty against him.

One Justice official said yesterday that no change in Moussaoui's status is imminent, and that reports to the contrary "are pure speculation."

"We have been and remain extremely confident of a successful prosecution," the official said. "We've got a great case."

But Justice's case has been complicated by the refusal of the Pentagon and intelligence authorities to meet Moussaoui's demands for access to some evidence and witnesses, including a number of captured al Qaeda members.

A military tribunal would restrict Moussaoui's right to press such demands. But opting for such a course might also be seen as an embarrassment for the administration and could confront President Bush with legal challenges to the constitutionality of using military judges to try terrorists as "unlawful combatants."

In a decision last month, U.S. District Judge Leonie M. Brinkema postponed the trial's start until June citing the enormous amount of evidence that must be digested by Moussaoui, who is serving as his own attorney.

The judge also granted Moussaoui's motion for larger quarters, calling his detention in a small, windowless Alexandria cell "both inhumane and an unreasonable barrier to his ability to work with the materials produced to him." The judge ordered the U.S. Marshals Service to give Moussaoui more space to review the reports, computer disks, audio and video tapes gathered by the government for possible use against him.

Moussaoui's stand-by lawyer, Frank W. Dunham Jr., said yesterday that he hasn't heard of any discussions to dismiss the case. Dunham, the federal public defender for eastern Virginia, was fired by Moussaoui but ordered by Brinkema to remain on the case should Moussaoui be disqualified from acting as his own counsel.

"My notion is there's been no decision made at the present time," Dunham said. "It may be something that's been talked about, but not decided one way or the other."

-- Anonymous, November 11, 2002