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The Justice Department wants accused terrorist Zaid Safarini put to death for his alleged role in a 1986 hijacking that left22 people dead, including two Americans. It won’t be easy. The capture of Safarini in October 2001 was touted by President George W. Bush as one of the government’s successes in its “war on terror.” While Safarini, a Jordanian citizen, has yet to be tried, a battle is already underway in the U.S. District Court for the District of Columbia over whether the government can even pursue the death penalty in his case. Safarini’s lawyers argue the government can’t seek capital punishment because their client’s alleged crimes were committed eight years before the Federal Death Penalty Act was enacted. In addition, they argue that the death penalty law on the books in 1986, when the crimes occurred, was unconstitutional and was repealed in 1994. The government, meanwhile, contends that the death penalty would have been available if Safarini had been prosecuted in 1986 and remains an option now. Safarini, now 40, has been charged with 95 federal offenses � one of which the government says carries the death penalty. The case is a test of the federal death penalty law on several fronts, including whether the 1994 law can be applied retroactively and whether the government has the authority to resurrect portions of a criminal law that has been revoked. At a Feb. 12 motion hearing, U.S. District Judge Emmet Sullivan noted the difficulty and the seriousness of the issue. “These cases are a lot trickier than they look,” Sullivan said. “But this case is past tricky.” OUT FOR BLOOD On Sept. 5, 1986, four gunmen hijacked a Pan American commercial jet while it was on the tarmac, and still boarding passengers, in Karachi, Pakistan. At the time, according to the DOJ, there were 379 passengers on board � 78 of them Americans. The pilot, co-pilot, and flight engineer were alerted to the hijacking and escaped through a hatch in the cockpit. According to the government’s account, Safarini, whose full name is Zayd Hassan Abd al-Latif Masud al Safarini, was the leader of the hijackers and began ordering flight attendants to collect passports from passengers in an effort to find Americans. Safarini demanded that the airport provide a crew to fly the plane to Larnaca, Cyprus. He then executed Rajesh Kumar, an American, shooting him in the head and throwing his body to the tarmac. At the time, Safarini was wearing a belt strapped with explosives and threatened to blow up the plane with everyone on board if his demands were not met. When negotiations broke down, Safarini and his crew herded the passengers and flight staff to the center of the aircraft and opened fire with their machine guns from both sides of the crowd. They also threw hand grenades into the crowd. At that point, several people were able to escape and Safarini, who was wounded in the crossfire, and the three other hijackers were captured, according to the government. A fifth person, who helped coordinate the attack, was arrested a few days later. Twenty-two people were killed and more than 100 wounded. In addition to Kumar, another American, Surendra Patel, was one of the dead. Four days after the incident, Sen. Arlen Specter (R-Pa.) complained on the Senate floor that “the United States has not legislated the death penalty for acts of terrorism and for any hijacking where mass murders are involved.” The New York Times also carried an article quoting unnamed Justice Department sources saying that the harshest penalty Safarini could face was life in prison if he were tried in the United States in 1986. Safarini and his alleged accomplices were found guilty of several crimes by a Pakistani court and sentenced to death in 1988, though their death sentences were later commuted to life in prison. In 1991, a federal grand jury in the District indicted Safarini and five co-defendants on 126 counts, including conspiracy, air piracy, hostage taking, and murder. The indictment was sealed until 2000, when DOJ officials learned that Safarini might be released from custody, according to the government. Safarini was released shortly after the Sept. 11 attacks. As he tried to get back to his home country of Jordan, he was arrested by agents of the Federal Bureau of Investigation. U.S. Attorney Roscoe Howard Jr. of the District announced soon afterward that his office would prosecute the case; in August 2002, a superseding indictment was handed up charging Safarini with 95 federal offenses. EYE FOR AN EYE The government says it can seek the death penalty because Safarini violated Title 49 of the U.S. Code � attempt to commit aircraft piracy resulting in death. “There’s no pretense that this man went out, commandeered a plane, and slaughtered innocent people,” Assistant U.S. Attorney Gregg Maisel said at the Feb. 12 hearing before Judge Sullivan. Safarini’s court-appointed defense team � made up of death penalty expert David Bruck, Assistant Federal Defender Robert Tucker, and Timothy Simeone of D.C.’s Harris, Wiltshire & Grannis � say the government is prevented from seeking the death penalty because Title 49 was repealed when the Federal Death Penalty Act became law in 1994. Furthermore, they argue that Title 49 � while never tested by the courts � would likely have been found unconstitutional because it was similar to other capital punishment provisions that were ultimately struck down by the U.S. Supreme Court. “This cannot be enforced,” said Bruck of the Federal Death Penalty Resource Counsel Project at the Feb. 12 hearing. “No court ever struck it down because no prosecutor ever wanted to waste his time arguing it.” Maisel, who is prosecuting the case with Jennifer Levy from Main Justice, argued that Safarini has the right under the old law to certain protections: jury instructions noting mitigating factors found in Title 49 that are not available under the current law. But he argued that the government is not prevented from seeking Safarini’s execution under the 1994 law. Maisel said it was not Congress’ intent when passing the Federal Death Penalty Act to “extinguish” the government’s right to seek the death penalty in earlier cases “if punishable by death when the crime was committed.” At the hearing, Sullivan said part of his analysis would entail looking “back in time and see what the Supreme Court would have done.” He said he planned to issue a written opinion on the issue before May. If he rules against the government, prosecutors can request an emergency appeal. If Sullivan allows the death penalty to go forward, Safarini could not challenge the ruling unless he was convicted and sentenced to death, according to statements made by the defense team in court. Safarini’s trial is scheduled for September.

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