Correction to This Article
The article incorrectly described the status of a subpoena for then-Rep. Curt Weldon (R-Pa.). Weldon had been subpoenaed, but the subpoena was quashed two days before the article was published.

The Man Who Wasn't There on 9/11

By Jerry Markon
Washington Post Staff Writer
Saturday, March 4, 2006

Zacarias Moussaoui was sitting in jail when the hijacked planes crashed into the World Trade Center and the Pentagon and in a field in Pennsylvania. Now, the government wants him executed for that day of terror because he did nothing to stop it.

After the jury is selected Monday, prosecutors will argue that even though Moussaoui wasn't there, he should be held accountable for the murders of nearly 3,000 people on Sept. 11, 2001. Their task, on its face, is formidable: Federal law says people can be executed only for killing someone or participating in a violent act that directly caused a death.

Yet legal experts say prosecutors stand a reasonable chance of securing a death sentence for the only person convicted in the United States on charges stemming from Sept. 11. The reason: Moussaoui's own words. When he pleaded guilty, he acknowledged that he had lied to the FBI when he was arrested a month before Sept. 11 "to allow his al-Qaeda brothers to go forward."

Relying on that admission, prosecutors will argue that Moussaoui might as well have pulled the trigger -- because if he had confessed his knowledge of the plot, the hijackings could have been stopped. "I think they have a good case, given his own statements," said Andrew McBride, a former federal prosecutor who has tried numerous death penalty cases. "He admits that he lied to further the conspiracy. Legally, that probably makes it."

Moussaoui, 37, pleaded guilty in April to charges that include conspiracy to commit aircraft piracy. He has become the poster boy for the deadliest terrorist strike in U.S. history, yet his precise role remains unknown, even to the government. If he had not been arrested, investigators have theorized, he could have been anything from the "20th hijacker" to a last-minute replacement to the pilot of a fifth plane intended to strike the White House.

Whatever Moussaoui's intentions were, the trial in U.S. District Court in Alexandria promises to combine weighty matters of national security with elements of the absurd. The trial is expected to last one to three months.

The anonymous 18-member jury, including six alternates, will watch the Justice Department lay out for the first time in a public courtroom its view of how the Sept. 11 attacks were planned and executed. A death sentence would do much to support the Bush administration's strategy of keeping the case in the criminal justice system -- instead of before a military court -- to show that the system can handle complex terrorism matters and punish the guilty.

Alexandria Location

The administration is also relying on jurors to validate its decision to try the case in Alexandria instead of New York, where most major terrorism cases had been prosecuted. Officials have said they felt the Northern Virginia jury pool is more conservative and pro-government. Yet they are fighting the weight of history: No Alexandria federal jury has ever returned a death sentence.

Defense attorneys will try to exploit that by probing the sensitive underside of the government's failure to stop the attacks. They will argue that U.S. officials knew far more about al-Qaeda's plans than Moussaoui did, according to court documents. Even if Moussaoui had told all he knew, the defense says, the government's own failures show that agents would not have acted properly on the information.

A hint of the high-level nature of the evidence emerged last week when the defense battled to secure the testimony of Rep. Curt Weldon (R-Pa.), who is trying to persuade a judge to quash a subpoena.

Weldon has alleged at congressional hearings that a secret Pentagon program, known as Able Danger, identified lead hijacker Mohamed Atta more than a year before Sept. 11. "This information is plainly helpful to the defense as it showed that the government possessed specific information about the presence of the ringleader of the Sept. 11 attacks in the United States before Sept. 11," defense attorneys wrote in a court filing.

Defense lawyers are also fighting a highly unusual opponent: their own client.

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