New York Times
November 22, 2001

Debate Centers on Which Court Will Decide Fate of Arab Man


WASHINGTON -- Senior Bush administration officials have begun to discuss whether a man in custody in New York should be tried on terrorism charges by a military tribunal rather than a civilian criminal court, senior law enforcement officials said today.

The debate over the fate of the man, Zacarias Moussaoui, is only preliminary, the officials cautioned. But they added that some senior administration officials had recommended making Mr. Moussaoui, a 33- year-old French citizen of Moroccan descent, the first foreigner to be tried on terrorism charges before a military tribunal, an initiative announced on Nov. 13 by President Bush.

Mr. Moussaoui was arrested in Minneapolis on Aug. 17 on immigration charges after he sought lessons from a flight school on how to fly Boeing jets. Since shortly after Sept. 11, Mr. Moussaoui has been held in a federal prison in New York as a material witness. Some officials said they suspected he was a member of the terrorist cells responsible for the attacks on the World Trade Center and the Pentagon, but no charges have been filed.

It is not known whether Mr. Moussaoui is being represented by a lawyer.

Mr. Moussaoui has stymied federal investigators. But despite their acknowledgment today that they had little evidence that Mr. Moussaoui was involved in the Sept. 11 attacks, three senior government officials said he very likely would be indicted on terrorism conspiracy charges.

The argument now is over whether he will be tried by a military tribunal or a federal criminal jury, either in New York or Northern Virginia, the officials said.

"This is the big question of the day," said a senior official, who spoke on condition of anonymity. "I think every option is on the table."

Over the past several weeks, federal prosecutors have weighed whether to seek a conspiracy indictment against Mr. Moussaoui, including the possible charge of "seditious conspiracy to levy war against the United States."

"An indictment is being considered," a senior government official said. But the official quickly conceded, "We don't have a lot of great stuff on him."

Several other law enforcement officials also said they were worried there was not enough evidence to convict Mr. Moussaoui before a 12- member federal criminal jury. Those officials have argued that a proceeding before a military tribunal is a poor substitute for a grand jury indictment. A tribunal can convict by a two-thirds vote and can impose any sentence, including the death penalty.

Another senior government official said Attorney General John D. Ashcroft and other senior law enforcement officials had not been part of the recent discussions about whether to bring Mr. Moussaoui before a military tribunal. A senior government official said, "No one has asked me whether Moussaoui should go before a tribunal."

Mr. Ashcroft has not expressed a view on the matter, said the official, who added that the discussions by other officials were still preliminary.

Contrary to some reports today, Defense Secretary Donald H. Rumsfeld has not endorsed the idea of a tribunal for Mr. Moussaoui or anyone else, a senior Pentagon official said. The official said Mr. Rumsfeld generally favored tribunals over civilian jury trials for foreigners charged with terrorism but had not said how quickly the first one should be convened.

Since Mr. Bush signed the executive order establishing military tribunals for foreigners charged with terrorism, the initiative has been criticized by some members of Congress and legal scholars who have questioned its constitutionality.

The possibility that Mr. Moussaoui might be tried before a military tribunal was first reported today in The Wall Street Journal.

Last month, Vice President Dick Cheney suggested that Mr. Moussaoui might have been meant to be part of the terrorist team that took command of United Airlines Flight 93, which crashed in a field in Stony Township, Pa., after the passengers apparently stormed the cockpit and attacked the hijackers. Federal investigators have said that they now believe a Yemeni citizen may have been meant to be a hijacker aboard that plane, but that he failed to enter the United States despite three attempts.

The man, Ramzi Omar, also known as Ramsi Binalshibh, is the subject of a worldwide manhunt.

Investigators have been trying to determine whether Mr. Moussaoui is connected to Mr. Omar, a suspected member of a Qaeda cell in Hamburg, Germany, that included Mohamed Atta, who has been considered the ringleader of the Sept. 11 hijackings.

One link investigators have been able to establish was that Mr. Omar received money in Hamburg from the United Arab Emirates and sent some of it in August to Mr. Moussaoui in Norman, Okla., where he was attending a flight school.

But a senior government official said today they were struggling to develop strong evidence that closely tied Mr. Omar to Mr. Atta. The official also said that investigators had recently found evidence that demonstrated Mr. Moussaoui had attended a Qaeda training camp.

In the past, investigators had struggled to find a hard link to the 19 hijackers or their associates. The German authorities have said that Mr. Moussaoui had at least one telephone conversation with the landlord of an apartment rented by Mr. Atta.

There have been some reports in recent days that investigators have wondered whether Mr. Moussaoui had prepared last summer not for Sept. 11, but for a second round of terrorist attacks, possibly in Europe. But a senior investigator dismissed that theory as "nothing more than conjecture."

Copyright 2001, New York Times Company. All rights reserved.

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