By Jerry Markon
Washington Post Staff Writer
Monday, November 14, 2005
As preparations intensify for the upcoming death penalty trial of Zacarias Moussaoui, newly unsealed court documents are laying out the arguments prosecutors and defense attorneys plan to make in what is likely to be the only judicial reckoning for the Sept. 11, 2001, terrorist attacks.
Prosecutors will tell an Alexandria federal court jury that Moussaoui deserves to die because he lied to the FBI when he was arrested a month before the terrorist assaults that killed nearly 3,000 people, the papers indicate. If the French citizen had confessed his knowledge of the hijacking plot, the government is expected to argue, the carnage of Sept. 11 could have been prevented.
To build their case that Moussaoui should die, prosecutors are planning to use admissions he made in April, when he became the first person convicted in a U.S. case stemming from the attacks on the World Trade Center and the Pentagon. When he pleaded guilty, Moussaoui signed a statement of facts admitting that he "lied to federal agents to allow his al Qaeda 'brothers' to go forward with the operation to fly planes into American buildings."
Defense attorneys, while arguing that Moussaoui actually knew very little about Sept. 11, are also preparing to put the government itself on trial.
Both the Bush and Clinton administrations were warned that Osama bin Laden wanted to strike the United States, the attorneys are arguing, but did little to prepare. In fact, they say, the government knew far more about bin Laden's intentions than did Moussaoui -- and also knew enough about Moussaoui to realize that he could pose a threat.
"We need to know, almost frozen in time, what was known by the government before the planes hit the World Trade Center," Moussaoui attorney Edward B. MacMahon Jr. said at a classified hearing whose contents were made public last week. Defense attorneys said that before Sept. 11, former CIA director George J. Tenet was briefed about Moussaoui after Moussaoui was arrested because his behavior at a Minnesota flight school was suspicious. The title of the briefing: "Islamic Extremist or Islamic Fundamentalist Learns to Fly."
Moussaoui, 37, pleaded guilty to six counts of conspiring with al Qaeda and said that bin Laden had personally instructed him to fly an airplane into the White House. But he denied that he was planning to be a Sept. 11 hijacker and said his attack was to come later. A trial, starting Jan. 9 with jury selection, will now convene to determine if he should be executed or spend the rest of his life in prison.
The trial itself, expected to last several months at a courthouse just miles from the Pentagon, promises to be extraordinary. Scores of reporters will descend on a building already under extremely tight security due to numerous other high-profile cases. Jury selection alone, from a pool filled with government workers, is expected to take almost a month, according to a schedule set by U.S. District Judge Leonie M. Brinkema -- far longer than most high-profile cases.
During the proceedings, relatives of Sept. 11 victims will have their day in court for the first time since the attacks. An unknown number are expected to testify as part of a massive and unprecedented outreach the government mounted, both to secure relatives' cooperation in court and to help them deal with their loss.
Prosecutors acknowledged in a recent filing that their so-called victim impact evidence will be "emotionally charged." The trial will also be aired on closed-circuit television to Sept. 11 family members at highly secure, remote locations outside Alexandria.
At the defense table, the trial could feature wild unpredictability. Moussaoui, an admitted al Qaeda member, is known for rambling speeches and heated courtroom outbursts. When he pleaded guilty, he called one of his attorneys a "Judas" and screamed: "Lord! God curse America!"
Sources familiar with the case said that Moussaoui has not talked to his attorneys in months. It is unclear how this will affect the defense case or how Brinkema will react to any outbursts. Brinkema initially granted Moussaoui the right to represent himself but revoked it after he scrawled blistering handwritten motions from jail in which he taunted the government and compared the judge to a Nazi SS officer.
Moussaoui has indicated that he wants to testify, sources said, which is his right under the U.S. Constitution. At his plea hearing, he said he would "fight every inch against the death penalty."
Prosecutors and defense attorneys would not comment beyond the court filings.
Moussaoui has been in the Alexandria jail for nearly four years. He was arrested more than three weeks before Sept. 11 and was charged in December 2001 with conspiring with al Qaeda in the Sept. 11 attacks.
A constitutional showdown over access to top al Qaeda detainees delayed the case for more than two years. Moussaoui wanted to interview the captives, saying they could clear him. Brinkema agreed, but the government vehemently resisted on national security grounds.
Eventually, a federal appeals court ruled that Moussaoui could not interview the detainees but could present to the jury portions of statements they made to interrogators.
The two sides are still fighting over the issue. In May, defense attorneys sought access to other detainees, recently unsealed court filings show. Brinkema has yet to rule on the request. And the government urged Brinkema to reconsider her earlier rulings, saying the al Qaeda witnesses are not relevant to the sentencing trial.
Brinkema declined to do so in an order unsealed Thursday, writing that the witnesses' statements "remain extremely material to this case."
It is unclear how the statements will be presented at the trial, but what is clear is that much will turn on whether jurors conclude that Moussaoui lied to federal agents after his arrest. The newly unsealed documents indicate that is the heart of the government's case.
According to a transcript of the Oct. 12 hearing unsealed last week in U.S. District Court in Alexandria, Brinkema said to prosecutors: "I think your theory of the case now is that his failure to tell the agents what he knew about Sept. 11 resulted in death."
"You are correct, your honor," responded Assistant U.S. Attorney Robert A. Spencer. Later in the hearing, Spencer referred to Moussaoui's admissions in the statement of facts and said: "We know he knew that much and lied, and instead of giving those answers, he gave false answers."
The hearing transcript was released with redactions; much of the material in the case is classified. Attorneys can view classified material only in two locked rooms -- a defense room in the basement of the federal courthouse in Alexandria and a government room within the U.S. attorney's office, located in the same building, sources said.
At the Oct. 12 hearing, defense attorneys outlined their argument that Moussaoui knew very little about Sept. 11 and that his confession wouldn't have stopped the attacks anyway because the government had repeatedly failed to act on warnings about al Qaeda's plans.
"We're trying to pinpoint what information the government had before 9/11 . . . to compare it with what Mr. Moussaoui may or may not have known or what they did even with the information that they had," MacMahon said.
Another recently unsealed defense filing says that President Bill Clinton was warned in 1998 "that bin Laden was preparing to hijack United States aircraft." The same filing cites a controversial August 2001 briefing given to President Bush titled "Bin Laden determined to strike in U.S."
The White House declassified that briefing last year after a request from the commission investigating the Sept. 11 attacks. It warned Bush that the FBI had information that terrorists might be preparing for a hijacking in the United States and might be targeting a building in Lower Manhattan.
"Substantial evidence will be presented at trial," Moussaoui's attorneys wrote in their filing, "that the United States government knew more about al Qaeda's plans to attack the United States than did Mr. Moussaoui."