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McVeigh cannot get execution moved up

WASHINGTON (CNN) -- The government's decision to delay Timothy McVeigh's execution by 26 days (31 days from May 11) cannot be shortened -- even if McVeigh pleads for the execution to proceed as planned, officials say.

Senior Justice Department officials said there is no circumstance under which the execution can occur before June 11. But the high-level officials, who asked not to be identified, acknowledged that court actions could intervene to further postpone the execution.

McVeigh's defense team would be required to first take a request for an appeal of his conviction to a three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver, Colorado, the government lawyers said.


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But the Justice Department's view is that there is no legal basis for McVeigh's attorneys to succeed in court.

"They can try anything, but that doesn't mean it will succeed," said one of the officials.

The Justice Department lawyers said because of past appeals failures by McVeigh, the threshold in any further round of appeals would be extremely high.

The government attorneys repeated Attorney General John Ashcroft's assertion that the FBI documents in no way provide reasonable doubt about McVeigh's guilt.

The Justice Department officials provided new details of the way in which events unfolded once the FBI became aware of the documents.

The officials said the FBI apparently learned "recently" that some of the McVeigh case documents had not been turned over, but they did not know exactly how long the FBI had known.

"Let's not speculate on what they knew when. That's what the inspector general's investigation will determine," one official said.

The government attorneys said the FBI first informed a Justice Department attorney of the McVeigh investigation papers on Tuesday, but Ashcroft was not informed of the development until Thursday, according to the officials.

The first word of the thousands of pages of documents which the FBI had failed to provide came in a phone call Tuesday from the FBI's top agent in Dallas Danny Defenbaugh to Assistant U.S. Attorney Sean Connelly in Denver. Connelly promptly called the defense attorneys.

On Wednesday the FBI documents were given to Connelly and to the defense. The attorney general's office in Washington was informed of the problem on Wednesday, but Ashcroft was not told of the matter until Thursday, according to the officials.

"They were collecting all the information they needed to brief him," one Ashcroft aide said. "There was no affirmative decision, 'Let's not tell the attorney general,'" said another aide.

Ashcroft spoke with FBI Director Louis Freeh Friday morning, but the officials refused to characterize the conversation in any way.

The attorneys said the agreement in which the government promised to provide all documents to McVeigh's defense lawyers in the pre-trial discover phase was an oral agreement and was not approved by a judge.

The Justice Department officials said that raised the possibility that while the failure to turn over the documents violated their voluntary agreement, it did not mean the government had violated a court order or any provision of law.

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4:30pm ET, 4/16

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