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Justice Department interviews Sept. 11 families

The families of September 11 victims are being screened as potential witnesses in the trial of suspect Zacarias Moussaoui.
The families of September 11 victims are being screened as potential witnesses in the trial of suspect Zacarias Moussaoui.  

From Phil Hirschkorn

NEW YORK (CNN) -- The Justice Department has begun interviewing relatives of those killed in the September 11 attacks to assemble stories for possible use in at least the first criminal trial stemming from the worst terrorist incident in U.S. history.

On Tuesday, the families of New York police, fire, and rescue workers who died in the attacks will have an opportunity to be debriefed by federal prosecutorial staff and FBI agents at hotel in midtown Manhattan.

In the first day of interviews Monday, dozens of families who lost loved ones who worked at firms inside the World Trade Center had appointments at the hotel.

"The world needs to know who's missing," said Cynthia McDay. "They need to know the impact that it's having on families. This is devastating." Her 23-year-old daughter, Tonyell, worked for Marsh & McLennan -- an insurance firm near the top of Tower One that lost 295 employees. "She was killed in this. I thought it to be very important to be here to say that," McDay said.

Prosecutors are screening families for use as potential witnesses in testimony about the personal impact of the hijackings and subsequent crashes into the Trade Center, the Pentagon and a field near Shanksville, Pennsylvania.

U.S. Attorney General John Ashcroft has until Friday to decide whether to seek the death penalty against Zacarias Moussaoui. CNN's Deborah Feyerick reports (March 25)

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The initial legal outlet for these stories would be any death penalty phase in the trial of Zacarias Moussaoui, 33, of France, who is scheduled to go on trial in federal court in Alexandria, Virginia, in September.

Prosecutors are expected to decide by Friday whether to seek the death penalty against Moussaoui.

A letter earlier this month from the U.S. Attorney from the Eastern District of Virginia told families that approximately 30 of them would be used as a representative sample of those who lost loved ones in the attacks. Their possible appearance as witnesses is contingent on Attorney General John Ashcroft approving the prosecutors' death penalty application, which must be filed with U.S. District Judge Leonie Brinkema by Friday.

Moussaoui has been indicted on six conspiracy charges -- to commit an act of terrorism, to pirate and destroy aircraft, to use weapons of mass destruction, to destroy property, and to murder Americans. Though four of the counts are death penalty eligible, Moussaoui is not accused of killing anyone himself.

"I am very ambivalent on the death penalty. But I think it's important if the government is going to ... that they have the faces of the people that were murdered," said Stephen Holland, whose wife Cora died aboard American Airlines Flight 11, which departed from the Hollands' hometown of Boston and was crashed into Tower One.

In April, Justice Department officials plan to meet families in Boston and Virginia.

The interviews in New York will run all week, with Saturday set aside for families of United Flight 93 passengers, who are believed to have overpowered the hijackers and forced the plane down in Pennsylvania. Ashcroft has suggested the government's theory of the case is that Moussaoui was the intended fifth terrorist on that flight, or the 20th hijacker on September 11.

The interviews are by appointment, one-on-one and private, lasting up to an hour. Families have been asked to bring photographs of their loved ones to be shown in court. The Justice Department has extensive experience preparing victims' relatives and survivors for terrorist trials, both domestic and involving al Qaeda, from the Oklahoma City bombing of the Murrah federal building in 1995 to the twin bombings of U.S. embassies in Kenya and Tanzania in 1998.

In both of those cases, the government sought the death penalty. As a result, last June, the convicted Oklahoma City bomber, Timothy McVeigh, was executed by lethal injection in Indiana, in the first federal execution since 1963.

But over the next month, a federal jury in New York rejected the death penalty for two men convicted in the East Africa embassy bombings. Among their reasons for failing to reach a unanimous verdict in favor of execution: some jurors felt lethal injection is a humane and less severe punishment than life in prison.

Mohamed al-'Owhali, found guilty of murdering 213 people in the Kenya bombing, and Khalfan Khamis Mohamed, found guilty of murdering 11 people in the Tanzania bombing, were instead sentenced to life in prison without the possibility of parole.

"They found that executing both clients ... risked making them martyrs for al Qaeda, and that by sending them to prison they would simply disappear, " said defense attorney David Ruhnke, who represented K.K. Mohamed.

Both Ruhnke, and defense attorney David Baugh, who represented al-'Owhali, found fault with the government's intent to seek the death penalty against Moussaoui.

"I haven't seen anything that was said that he knew that by learning to fly an airplane, one: it would be used to hurt Americans, and two: it would occur in the United States," Baugh says.

Among the evidence of guilt cited in Moussaoui's indictment: paramilitary training in al Qaeda's camps inside Afghanistan, pilot training in the U.S., and receiving money wires from same overseas sources as the 19 hijackers.

"If there was a case where it should be sought, for someone who did not have a direct hand in the death of anyone -- it's this one," says Pete White, a former federal prosecutor in the Eastern District of Virginia.

"I think the strongest argument for the government is, if the death penalty is not appropriate for someone who had a hand in an attempt to undermine the entire American system of military, industry, and government, then who is it appropriate for?" White says.

White prosecuted one of the four recent capital cases in Arlington's federal courthouse that resulted in convictions but no death sentences. Still, Virginia retains a reputation as a "death friendly" state: five of the 26 inmates on federal death row were convicted in Virginia, which stands second only to Texas in volume of state executions since 1976.

"The depravity of this case is such that a message needs to be sent to the community, and a message needs to be sent to the world, this is not something that America will tolerate. And that message is strongest sent by a death verdict," White says.

Moussaoui's best defense may be that after a run-in with a Minnesota flight school, he was jailed last August on immigration charges, about a month before the attacks.

"I think it's an overreaching prosecution to seek capital punishment against someone who was out of the conspiracy at the time it was culminated in the attacks on September 11 -- sitting in custody somewhere unable to participate," Ruhnke says.

"You also have the problem that Osama bin Laden is on a videotape supposedly telling someone that he didn't tell anyone what the objectives were until the very last moment and indeed that some of the people didn't even know what the objectives were," he says.

The mother of Tonyell McDay has no qualms about seeing Moussaoui -- should he be convicted -- put to death.

"What does the Bible say about that? Live by the sword -- die by the sword," said McDay.




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