Moussaoui judge: Terror trials work

The judge who presided over Zacarias Moussaoui's trial questioned the government's decision to seek a death sentence against the Sept. 11 conspirator, and offered a strong defense of federal courts' ability to handle terror trials.

U.S. District Judge Leonie Brinkema said in a speech Friday at the American University law school that the government's decision to seek a death sentence against Moussaoui appeared to be politically motivated, and that the zealous pursuit of a death sentence opened up numerous issues of exposing classified information that otherwise could have been avoided.

"The war on terror is an important piece of political leverage," Brinkema said. "Don't lose sight of the political realities."

Because the trial was a capital case, Moussaoui was allowed access to a wide array of evidence that would have been irrelevant in a non-capital case, including statements from captured al-Qaida leaders that Moussaoui was at best a bit player in their plans.

The court struggled for nearly two years in trying to balance Moussaoui's right to have access to those witnesses with the government's right to continue its ongoing interrogations of those witnesses, including Sept. 11 mastermind Khalid Sheikh Mohammed, without interruption. Eventually the 4th U.S. Circuit Court of Appeals ordered that summaries of the men's statements be prepared for trial without allowing defense depositions.

At one point Brinkema barred the government from pursuing the death penalty as a sanction for its refusal to make key witnesses available, although an appellate court later lifted that sanction.

Moussaoui pleaded guilty in 2005 to conspiring with al-Qaida to hijack aircraft, among other crimes. In a 2006 sentencing trial, a jury concluded that Moussaoui's actions furthered the Sept. 11 plot. But the jury ultimately decided to spare his life and sentence him to life in prison.

Rob Spencer, the lead prosecutor in the Moussaoui case, who is now in private practice at Lockheed Martin Corp., agreed that the case would have been much simpler as a non-capital case.

"But it was the greatest mass murder in our history, and it should have been charged as a death-penalty case," Spencer said in a telephone interview.

Both Brinkema and Spencer are in agreement, though, that the federal courts are equipped to handle terror trials, despite suggestions by Attorney General Michael Mukasey and others that some sort of new national security court should be considered to handle such cases.

Brinkema, who has presided over multiple terror trials in Alexandria, Va., in addition to the Moussaoui case, said the notion of a national security court should "send shivers down the spine of everyone."

The judge said she bristles at descriptions of Moussaoui's trial — which included frequent outbursts by the defendant and a retracted confession — as a circus. Instead, she said the trial included a variety of challenges, like a defendant serving as his own lawyer and a block of classified evidence. Individually those circumstances are not unusual, but they were uniquely concentrated in the Moussaoui case, she said.

"I've reached the conclusion that the system does work," Brinkema said.

Spencer said a jury trial "serves a useful public purpose. It lets the public see what a terrorist really looks like. It lets the victims participate in the process."

David Laufman, a former assistant U.S. attorney in Alexandria who prosecuted Ahmed Omar Abu Ali, a U.S. citizen from Falls Church who was convicted of joining al-Qaida and plotting to assassinate President Bush, acknowledged that such trials can be complicated. But he said in a telephone interview that courts have "legitimate constitutionally defensible mechanisms to allow these cases to go forward while protecting the rights of the accused." Laws exist, for example, to develop declassified substitutions at trial for classified evidence under a judge's supervision.

Brinkema also said in her speech that there is no room in the American justice system for evidence obtained through torture, saying that "coerced testimony is inherently unreliable."

She cited Moussaoui as an example of an individual who likely would have cooperated with the right kind of questioning.

"I'm convinced that if someone sat down and had tea with him and could put up with his ramblings, that they could have gotten some information from him because he couldn't keep his mouth shut," Brinkema said.