WASHINGTON, 6 May 2006 — Zacarias Moussaoui, the only person prosecuted so far in connection with the worst terrorist attack in American history, did not get the death penalty because some jurors concluded he had little to do with Sept. 11.
Yet two key planners of the Al-Qaeda plot, Khalid Shaikh Mohammed and Ramzi Binalshibh, have not been charged, though they have been in US custody for more than three years.
A central contradiction in the Bush administration’s fight against terrorism is that bit players often have been put on trial, while those thought to have orchestrated the plots have been held in secret for questioning.
The difference in treatment, government officials say, stems from the fact that gathering intelligence from suspected terrorists is more important than publicly punishing them.
That’s why Muslim men from Portland, Ore., Lackawanna, N.Y., and Lodi, Calif., have been prosecuted and imprisoned for having attended training camps in Afghanistan. Facing charges such as conspiracy and providing “material support’’ to terrorists, they had little of substance to reveal to US intelligence authorities.
Similarly, the Bush administration sought life in prison for John Walker Lindh, the California-born Muslim convert who went to Afghanistan to fight for the Taleban regime prior to the US invasion. He pleaded guilty in exchange for a 20-year sentence.
But it was a different matter when the FBI arrested Jose Padilla in Chicago in 2002. The Brooklyn native, a convert to Islam, was suspected of leading a plot to set off a radioactive “dirty bomb’’ inside the United States.
Rather than file terrorism charges against him, the government branded him an “enemy combatant’’ and confined him to a military brig for three years. He was not allowed to speak to his family or to a lawyer while interrogators pumped him for information about the supposed plot.
Current and former intelligence officials have said that the CIA has used aggressive interrogation techniques on captured Al-Qaeda leaders. As a result, many legal experts say it may be too late to try Mohammed and Binalshibh in a regular court of law.
“They cannot be prosecuted because of the way they have been interrogated,’’ said University of Maryland law professor Michael Greenberger, a terrorism expert who served in the Clinton administration. “They have been subjected to very aggressive questioning, and any statements they made now can’t be used against them.’’
An open trial for the Al-Qaeda leaders could reveal that US agents used harsh methods, even torture, to extract information, he added.
“That has been the irony of the Moussaoui case from the beginning. We have prosecuted a marginal character who appeared unmoored from reality, while the real planners of the crime will not be brought before justice in the United States,’’ Greenberger said.
