WASHINGTON - The White House is weighing a proposal to abandon the Justice Department's prosecution of Zacarias Moussaoui in a federal court, remove him from the United States and place him before a military tribunal in Guantanamo Bay, Cuba, administration officials say.
They said the proposal to shut down the civilian prosecution of Moussaoui, the only person charged in a U.S. court with involvement in the Sept. 11 attacks, reflected a growing fear in the government that legal problems faced by the Justice Department in pursuing the case might be insurmountable.
The officials, speaking on condition of anonymity, said that while there had been no final decision on moving Moussaoui to the U.S. military base in Cuba, the proposal had been discussed in recent weeks among lawyers at the White House counsel's office, the Pentagon and the Justice Department.
They said Defense Secretary Donald H. Rumsfeld was recently briefed by aides on the possibility that Moussaoui would be put under the Pentagon's control.
The officials said it was unclear whether Attorney General John Ashcroft had weighed in with the White House on the issue, but they said that other senior officials at the Justice Department did not want to lose control of the case to the Pentagon and were urging the White House to hold off on a decision to abandon the trial.
Moussaoui, a 34-year-old French citizen, is facing trial next year in Alexandria, Va., on charges that he conspired in last year's terror attacks.
Civilian and military lawyers said it was unclear whether the court-appointed lawyers assigned to advise Moussaoui would be able to prevent the administration from moving him to Cuba.
Moussaoui, who is trying to act as his own lawyer, has acknowledged that he is a member of al-Qaida, but he has insisted that he had nothing to do with the attacks.
The legal problems for the Justice Department center on the refusal of the Pentagon and intelligence agencies to meet Moussaoui's demand for access to witnesses and evidence that, his court-appointed lawyers say, could aid in his defense.
The defense is seeking access to a variety of recently captured al-Qaida figures, most notably Ramzi Binalshibh, a young Yemeni who was apprehended in Pakistan last month.
He is accused of being a crucial planner of the Sept. 11 attacks and is identified by name throughout Moussaoui's indictment.
"The Pentagon and the CIA argue, quite justifiably, that they want to keep these terrorists in isolation and under interrogation," even if that means abandoning the prosecution of Moussaoui, one official said.
Law enforcement officials have said that in secret court filings, Moussaoui's court-appointed lawyers have argued that without the access, he will be deprived of his Sixth Amendment right to seek out witnesses who might prove his innocence.
The officials said the judge in the case, Leonie M. Brinkema, had appeared to be sympathetic to the defense arguments and, in court orders not released to the public, had ordered that some of the witnesses be made available.
In a military tribunal, officials said, Moussaoui would almost certainly have fewer procedural rights to seek testimony from witnesses, including the captured al-Qaida leaders.
His transfer to a tribunal might also be a relief to the administration because it would end the chaos created at recent court hearings, which Moussaoui has used as opportunities to denounce the United States and its criminal justice system.
A senior administration official, speaking on condition of anonymity, said that the Pentagon's general counsel, William J. Haynes II, recently discussed the proposal to transfer Moussaoui to Guantanamo Bay with his counterparts in the White House counsel's office and at the Justice Department.
The official said that while Rumsfeld had been briefed on the proposal to move Moussaoui to Cuba, he had not been asked to lobby the White House in support of the proposal.
The officials emphasized that whatever was done with Moussaoui, he would face trial somewhere, in a civilian court or before a military tribunal.
"It's not a question of whether he'll be brought to justice," said an official, speaking on condition of anonymity. "It's a question of where and how."
Eugene R. Fidell, a Washington lawyer who is president of the National Institute of Military Justice, said that a decision to move Moussaoui from a civilian courtroom to a tribunal might be a sign of "nimbleness" by the government in dealing with the novel national security issue created in the prosecution of al-Qaida suspects since Sept. 11.
"A critical observer might say that this is an embarrassing change of course for the government, while a sympathetic observer would say this is the government showing flexibility in an evolving and complicated area of criminal law," Fidell said. "The last thing the government wants to do is lose a case like this because of some public relations problems."