NY Times
September 30, 2003

Appeals Strategy Lies Behind Prosecutors' Decision in Terror Case



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.

NY Times
October 1, 2003

The Roster of Ground Zero Architects Grows



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.