The Justice Department is not objecting to the dismissal of Zacarias Moussaoui’s indictment in order to present an appeals court with a blunt choice: reinstate the charges or acknowledge that civilian courts cannot prosecute a terror suspect like Moussaoui, the New York Times reports.
U.S. District Judge Leonie M. Brinkema is expected to rule this week on a defense motion to dismiss the case against Moussaoui, the only person charged in a U.S. court with conspiring in the Sept. 11, 2001, terror attacks. The judge may throw out the case because of the government’s refusal to obey her order to make captured members of Al Qaeda available to testify for the defense. The Justice Department bases its action on the possible public disclosure of classified information.
E. Lawrence Barcella, a former federal prosecutor, said it appeared that prosecutors wanted to avoid a situation in which the judge reduced the charges but did not dismiss the indictment. That might make it easier for the U.S. Court of Appeals for the Fourth Circuit to uphold her ruling. The court is viewed as the most conservative federal appeals court, usually sympathetic to national security arguments by the executive branch.