By PHILIP SHENON and
NEIL A. LEWIS
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ASHINGTON, Sept. 29
ó Bush administration officials said today that federal prosecutors had decided
not to object to a motion to dismiss the indictment of Zacarias Moussaoui
because they wanted to present an appeals court with a blunt choice: reinstate
the charges or acknowledge that civilian courts cannot prosecute a terror
suspect like Mr. Moussaoui.
The trial judge,
Leonie M. Brinkema of Federal District Court in Alexandria, Va., is expected to
rule this week on a defense motion to dismiss the indictment of Mr. Moussaoui,
the only person charged in an American court with conspiring in the terror
attacks on Sept. 11, 2001.
Judge Brinkema has
suggested she may dismiss 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. Court-appointed lawyers for Mr. Moussaoui have argued, and the judge
has agreed, that the prisoners may be able to offer testimony showing he had no
part in the conspiracy.
But the Justice
Department has said the government cannot produce captured Qaeda witnesses,
even those who may have helped direct Mr. Moussaoui's actions, because of the
possible public disclosure of classified information. Prosecutors have argued
that Mr. Moussaoui has no right to question witnesses held overseas as enemy
combatants.
The Justice
Department announced last week that it would not object if Judge Brinkema
dismissed the indictment. Government lawyers and outside specialists in
criminal law called that a logical maneuver, even if it was initially startling
in view of the prominence of the case.
They said that if
Judge Brinkema imposed a lesser sanction against the government ó like striking
portions of the indictment dealing with the Qaeda prisoners or barring use of
the death penalty ó prosecutors might have a harder time convincing an appeals
court to overrule her.
Appeals courts are
usually reluctant to interfere in criminal cases before trial, and in this case
the United States Court of Appeal for the Fourth Circuit, in Richmond, has
already refused once to overrule Judge Brinkema on the issue of Qaeda
witnesses, saying it would be premature until she had officially sanctioned the
Justice Department.
A department
official acknowledged that by agreeing to allow the judge to drop the
indictment, the government would have some explaining to do with the public,
since dismissal might suggest that the case had collapsed.
"On the face
of it, it's not easily understood," the official said. "But with a
little explanation, this is understandable. And we think that there's no
question but that this is the right move."
In a statement last
week, the Justice Department said: "If the District Court now dismisses
the indictment ó which is the procedural step contemplated by both the earlier
ruling of the Court of Appeals in this case and by the laws governing
classified information ó the government will be ensured its opportunity to
obtain prompt appellate review of the direct-access issue. We believe this will
allow the Department of Justice to resolve the impediments to trial."
E. Lawrence
Barcella, a Washington lawyer and a former federal prosecutor, said that the Justice
Department decision to agree to dismissal of the charges might seem odd at
first glance.
"Under normal
circumstances if one side were to receive a sanction, the lawyers would want it
to be as minimal as possible," Mr. Barcella said. "But the situation
here is quite different."
Mr. Barcella said
that 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 Court of Appeals to uphold her ruling.
"They don't
want to be stuck with a lesser sanction and the appeals court affirming Judge
Brinkema's ruling," he said. "They would have to go ahead with the
prosecution but with a weaker case."
The lawyers for Mr.
Moussaoui said they, too, were not surprised by the Justice Department's
tactics, because dismissal of the indictment created a clear path for the case
to be reviewed by the Fourth Circuit.
The Fourth Circuit
is considered the most conservative federal appeals court and is usually
sympathetic to national security arguments by the executive branch.
"If the
indictment is dismissed, there's no question that the government's appeal will
be heard by the Fourth Circuit," said one of the defense lawyers, Edward
B. MacMahon Jr. "If the court imposed sanctions other than dismissal,
there might be jurisdictional issues."
Another defense
lawyer, Frank W. Dunham Jr., said that outright dismissal would offer the
appeals court "a starker choice, in which they either dismiss the case
against an alleged 9/11 participant or allow the government some leeway in
holding back witnesses from the defense."
Administration
officials have said that if the case against Mr. Moussaoui could not be pursued
in a civilian court, he would be prosecuted in a military tribunal, where he
would have fewer rights to obtain the testimony of witnesses.
By DAVID W. DUNLAP
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hree celebrated
architects ó including Norman Foster, who offered his own vision last year of
twin towers rising from ground zero ó were added yesterday to the growing
roster of international designers working on the World Trade Center site.
Lord Foster, of
London, Jean Nouvel of Paris and Fumihiko Maki of Tokyo joined Daniel
Libeskind, the master planner, and David M. Childs and T. J. Gottesdiener of
Skidmore, Owings & Merrill, which will design the first, and tallest,
building, Freedom Tower, with Mr. Libeskind. Larry A. Silverstein, who chose
all but Mr. Libeskind, said, "They're the best in the world."
It was an
impressive array of architectural celebrity. But their involvement raises the
question of whose aesthetic vision will prevail and whether it is possible to
build distinctive towers that bear the idiosyncratic hand of famous designers
within a coherent master plan.
In addition to the
architects who gathered with Mr. Silverstein, Santiago Calatrava of Spain is
working on the new transit hub with DMJM & Harris and the STV Group. A
memorial design has yet to be chosen.
Mr. Silverstein
described the group as "one massive collaborative effort." Mr.
Libeskind professed his pleasure at what he called an "incredible
day."
He had anticipated
the designation of other architects for a number of buildings at the site.
"It requires a heterogeneous and interesting development," he said
recently.
Heterogeneity would
seem to be guaranteed in the arrangement described by Mr. Silverstein.
"Each architect will design his own high-rise building and Dan will
collaborate on each of them," he said.
Only five days ago,
Mr. Silverstein suffered a setback in his legal battle with insurers over the
amount of the settlement for the Sept. 11, 2001, attack; a sum that will
finance redevelopment. Whether the payout is $7 billion or $3.5 billion turns
on whether the attack is construed as two discrete events or one.
Asked whether
yesterday's announcement was meant to bolster his public image as the best
possible developer of the trade center, Mr. Silverstein said the meeting with
the architects had been scheduled weeks ago. He said he was confident he would
prevail when the legal case went to a jury.
One of the firms
chosen by Mr. Silverstein, Foster & Partners, had competed last year with
Mr. Libeskind for designation as overall site planner. Among its other
projects, the firm designed the Hearst Corporation headquarters being built at
Eighth Avenue and 57th Street.
Lord Foster said
yesterday that he would "start from scratch" on his trade center
design. "You can only have one master plan," he said.
Ateliers Jean
Nouvel has designed apartment buildings in the meatpacking district and in
SoHo.
Maki &
Associates is working on a building at the Massachusetts Institute of
Technology. Mr. Maki won the prestigious Pritzker Architecture Prize in 1993.