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.
In what legal observers call a first for the U.S. justice system, Moussaoui -- an avowed al-Qaeda member who swore a blood oath to Osama bin Laden -- is being given a public forum. He has said he plans to testify, and sources familiar with the case say his attorneys have no idea what he might say.
The French citizen has already shown he will make the most of the opportunity. He was repeatedly ejected from the courtroom by U.S. District Judge Leonie M. Brinkema during jury selection for erupting at his attorneys, the judge and prosecutors. Even when he was allowed back in, he muttered blessings for bin Laden and curses for America after the judge had left.
His behavior will be witnessed by family members of Sept. 11 victims, who are gathering to watch the trial at remote viewing locations at five federal courthouses across the country. If jurors decide that Moussaoui is eligible for the death penalty, a second phase of the trial will feature highly emotional testimony from family members and people injured on Sept. 11.
If Moussaoui's own words could hurt him before the jury, they may have already helped prosecutors make their case. Prosecutors will argue, court documents say, that Moussaoui should die because he allowed the plot to proceed by lying to the FBI and that his deception was a direct cause of the deaths.
When Moussaoui was arrested in Minnesota a month before Sept. 11, he told federal agents that he was training as a pilot for personal enjoyment and that after finishing, he intended to visit New York and Washington as a tourist.
When he pleaded guilty, Moussaoui signed a statement of facts admitting that he had lied to the FBI to allow al-Qaeda "to go forward with the operation to fly planes into American buildings." Prosecutors pointed to this admission in proposed jury instructions they submitted to the judge last week.
Stephen A. Saltzburg, a George Washington University law professor, said the government should be able to prove much of its case. "There is no doubt they can prove that he joined the conspiracy . . . and that he didn't do anything to stop
9/11," Saltsburg said.Prosecution's Task
The harder part, Saltzburg said, is showing that Moussaoui's lies directly contributed to the murders. In the end, he said, it may depend on how Brinkema instructs the jury on the law. "How is he responsible for Sept. 11 and the deaths on Sept. 11?" Saltzburg said. "It's that last step, the last link."
Prosecutors declined to comment but have indicated in court documents that they do not feel they need to prove that Moussaoui had a specific task on Sept. 11.
"I think no one will ever know," McBride said. "The only people who have an idea are Osama bin Laden and some of his lieutenants."
Moussaoui's intentions have been mysterious ever since his name first emerged in press reports -- he was called Habib Zacarias Moussaoui then -- a few days after Sept. 11.
He was born in the Basque region of France, to a Moroccan father and a French mother, according to interviews and court documents. His father was an abusive alcoholic, and Moussaoui spent his first five years in and out of orphanages, according to court records filed by the defense.
Although Moussaoui grew up only nominally practicing Islam, he moved to London as a young man to master English and became exposed to "the radical mosques which flourished in London in the 1990s," the court papers said.
Hooking up with bin Laden's organization, Moussaoui trained at an al-Qaeda camp in Afghanistan and managed an al-Qaeda guesthouse in Kandahar, he acknowledged in the court document he signed. He entered the United States in 2001 and began taking flying lessons at Airman Flight School in Norman, Okla.
As Sept. 11 approached, Moussaoui took a series of actions that closely mirrored those of the hijackers. He bought two knives and made sure their blades were short enough to get through airport security, according to court documents and the independent commission that investigated the 9/11 attacks. In August 2001, he received nearly $15,000 from al-Qaeda and began training on a 747 simulator at a flight school in Minnesota.
The 9/11 commission later concluded that Moussaoui was most likely being primed as a Sept. 11 replacement pilot and that the hijackers probably would have postponed their strike if his arrest had been announced.
Moussaoui's conduct raised suspicions at the flight school because he wanted to fly large jets when he had little training. He did not want a pilot's license. His instructor reported him to the authorities, and Moussaoui was arrested on immigration charges Aug. 16, 2001.
Moussaoui's actions were considered suspicious enough that the then-director of the CIA, George J. Tenet, was briefed, but a series of government missteps, chronicled at length by the 9/11 commission, prevented investigators from piecing together Moussaoui's intentions -- or the Sept. 11 plot.
After Sept. 11, Moussaoui emerged as a key suspect. Some government officials, including Vice President Cheney, suggested that he might have been the 20th hijacker, referring to the fact that the plane that crashed in a field in Pennsylvania had only four hijackers aboard. The other three planes had five hijackers each.
Moussaoui signed his plea agreement as the "20th hijacker," though he often called himself that in handwritten motions filed from jail, usually in a mocking tone.
But prosecutors have vehemently pointed out that they never called Moussaoui the 20th hijacker in any court proceeding, even as he has become known as that to many people. "Instead, the '20th hijacker' theory appears to be a creation of the media coverage and the isolated statements of certain government officials in the immediate aftermath of the Sept. 11 attacks," prosecutors wrote in an appellate court brief filed in 2003.
Although the government has never spelled out his role, a federal grand jury in Alexandria indicted Moussaoui in December 2001 on conspiracy charges.
In July 2002, Moussaoui interrupted a routine court hearing and tried to plead guilty, claiming an intimate knowledge of the hijackings.
"I have certain knowledge about September 11," Moussaoui said, according to a transcript. "I know exactly who done it. I know which group, who participated, when it was decided. I have many information."
After Brinkema gave him a week to think about it, Moussaoui withdrew his plea and claimed that although he is an al-Qaeda member, he had no advance knowledge of the hijackings.
A constitutional showdown over Moussaoui's access to top al-Qaeda detainees, who Moussaoui's attorneys said had information that could clear him, then delayed the case for more than two years. 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.
Last April 22, Moussaoui pleaded guilty to six conspiracy counts. Yet the day's proceedings only added to the uncertainty.
The court document Moussaoui signed said that he had participated in the al-Qaeda plot that culminated in Sept. 11 and that bin Laden had personally instructed him to fly an airplane into the White House. But when Moussaoui stepped to the lectern, he denied any role in Sept. 11 and said the White House attack would be an attempt to free Sheik Omar Abdel Rahman, who is imprisoned for the 1993 World Trade Center bombing.
"This conspiracy was a different conspiracy than 9/11," Moussaoui said.
As he was led from the courtroom by security officers, he shouted: "Lord! God curse America!"