But should he die for it? Sometime later this year Moussaoui will go on trial in Alexandria, Va., for allegedly taking part in the 9-11 conspiracy–and if he is convicted, Attorney General John Ashcroft announced last week, the government will seek the death penalty. Given the fact that the defendant was sitting in jail on 9-11, and given the lingering questions about his connection to the hijacking plot, critics say Ashcroft is pushing the boundaries of federal death-penalty law. Moussaoui’s lawyers wondered whether Ashcroft was trying to influence the jury pool, and criminal lawyers like Michael Tigar, who defended Terry Nichols in the Oklahoma City bombing case, said the death penalty was “inappropriate” and possibly unconstitutional given Moussaoui’s limited role. But Eric Holder, a deputy attorney general under President Clinton, said the decision was consistent with the conspiracy law. “This is meant to send a signal to people who are in custody or who might come into custody,” Holder said. “Failure to cooperate is going to carry the ultimate sanction.”
It sent an unmistakable message to the French government as well. Since Moussaoui is a French citizen, France has a stake in the way the case is handled–and in Paris last week, the operative word was non. Government officials said France would continue to share intelligence in the war on terrorism but that it would not supply evidence that U.S. prosecutors could use in court to get the death penalty for Moussaoui. U.S. officials say cooperation between U.S. and French investigators, always sensitive, has gotten even more difficult. Questioned about the French reaction, Ashcroft sniffed: “We ask [other nations] to respect our sovereignty, and we respect theirs.”
This chilly exchange may have been triggered by an abortive U.S. attempt to coax Moussaoui’s family into helping the prosecution. Last month, NEWSWEEK has learned, a three-member U.S. team showed up in Montpellier, France, to question Moussaoui’s mother, Aicha, and brother, Abd-Samad Moussaoui, both of whom reject his militant politics. The goal: to get an advance reading on any sympathetic testimony the defense could present during the penalty phase of the trial. The lead prosecutor in the case, David Novak, wrote a 1999 law-review article emphasizing this strategem in death-penalty cases–and Novak is known as “Dr. Death” among his courtroom adversaries.
Moussaoui’s lawyers reached out to Ann-Charlotte Dommartin, an anti-death-penalty activist based in Paris, who warned Moussaoui’s relatives to avoid giving the U.S. investigators any damaging information. Moussaoui’s mother refused to meet with the U.S. team. His brother, Abd-Samad, agreed to meet but mostly kept mum. “I told them they only wanted to question me for the death-penalty issue,” he said. “They did not contradict me.” Dommartin said she pushed the French government to get tough with the United States, and it did. “We want those responsible for September 11 to be punished,” she said. “But in France, as in Europe, everybody has a problem with the death penalty.”
The prosecution may have a problem, too–for the case against Moussaoui is no slam-dunk. Essentially, the government will ask jurors to follow the money and connect the dots, for there is no evidence he was in touch with the hijackers. “There’s a lot of nervousness about this case,” an administration official concedes. But there is also no question about the government’s determination to bring the full weight of American justice on the only September 11 suspect it has been able to catch thus far.
