United States v. Moussaoui

No Delivery from Evil

By Andrew D. Cohen
special to washingtonpost.com
Monday, March 6, 2006; 12:00 AM

Don't expect the looming trial of confessed Al Qaeda trainee Zacarias Moussaoui to answer your remaining questions about the terror attacks of September 11, 2001. Do not expect it to satisfy your desire for revenge, or justice, or whatever people mean when they use the word "closure." He's the wrong guy, and this is the wrong case, to accomplish those meaningful things despite the collective cathartic exercise we all are about to endure.

Moussaoui's federal sentencing proceeding is really just a hollow shell -- he's a prop and little more -- and when it is over the government, win or lose, will have paid a terribly high price to dispatch a dyspeptic loser who has proven to be as undisciplined a criminal defendant as he was a low-level terror operative. What was supposed to be the world-wide show trial to demonstrate that America could offer fair justice even to its most vicious enemies instead has devolved into a soggy legal mess. Ever since the government picked this guy as the fall guy for the mass crime that took place on 9/11, the case has been a public-relations disaster -- and the trial is only going to make it all worse.

Part of the blame goes to Moussaoui himself, who is either as mad as his lawyers say he is, or who knows intrinsically how to turn legal arcana into political theatre. But surely the federal officials who decided to turn the Moussaoui's case into a public trial might have suspected that an Al Qaeda thug -- and a reportedly schizophrenic one at that -- wouldn't simply sit still in court and behave like good, old-fashioned, home-grown criminals do. The federal government has literally given a microphone to a guy who says into it every chance he gets that he hates America. Talk about the White House being off-message these days.

Indeed, ever since the Bush Administration decided to give Moussaoui the venue and the forum of a civil courtroom -- instead of a tucked-away military tribunal, for which he is eligible because he is not a US citizen -- he has twisted this case into knots. And so have federal prosecutors and U.S. District Judge Leonie M. Brinkema, who have fought sharply for years over precisely what "due process" ought to mean in the case of a guy whose bosses were bin Laden and two of his capos, Ramzi Binalshibh, and Khalid Shaikh Mohammed.

Because of the nature of the charges against Moussaoui, the facts to which he already has pleaded guilty, and federal death penalty rules, the trial portends a nasty battle of blame between the two sides, presided over by a judge who already has ruled (and then been overruled) that the death penalty is inapposite in this case. That is simply not a recipe that is likely to cook up a neat and tidy result for the government despite the overwhelmingly compelling narrative that federal prosecutors are going to work with when they finally begin to present their evidence.

Federal prosecutors want a reply writ large of the 1997 Oklahoma City bombing trials, in which they wove together seamlessly emotional victim testimony with circumstantial evidence to gain the convictions of Timothy McVeigh and Terry Nichols. But McVeigh was a real murderer and Nichols did far more to help the bomb plot than Moussaoui came close to doing. And that is a factual difference that no somber litany of the names of the dead and no enormous in-court model of the Twin Towers can change.

If Moussaoui ultimately is condemned after this trial it won't be because he pulled a trigger (he didn't) or even knew of the specific 9/11 plot (he didn't). It won't be because he is the 9-11 mastermind (he wasn't) or because he was supposed to be on one of those doomed planes (he wasn't). It will be because federal conspiracy law is a vast expanse that authorizes the government to link together one sub-plot to another until the chain is established. Moussaoui was a terror conspirator. And terror conspirators murdered nearly 3,000 people on 9/11. Ergo, federal law says and the government intends to prove, Moussaoui conspired to murder those people. The case is no more complex than that.

The trial is really two different trials. First, the feds have to establish a link between Moussaoui and the murder of 9/11. Only if they do, beyond a reasonable doubt, will they then be able to move on to Phase II of the sentencing, the phase more familiar to devotees of this sort of thing, in which prosecutors try to convince jurors that Moussaoui deserves to die. It is in Phase II, if we get there, that jurors will be bombarded by prosecutors with "aggravating" factors that warrant a death sentence for Moussaoui and by "mitigating" factors by his defense. Of course, everyone knows that nothing in Moussaoui's miserable life mitigates what happened on 9/11 so Phase I of the proceeding is where his lot will be decided.

The feds must establish first that Moussaoui's lies to federal agents at the time of his arrest -- e.g., when he denied his latent interest in flying planes into buildings -- "resulted" in at least one of the 9/11 deaths. Indeed, because of the peculiarities of federal criminal law, in addition to trying to pin Moussaoui to the worst crime in American history, the feds also must try to pin on him the rap that he also is responsible for the worst intelligence failure in American history; that had he told the truth to the authorities back in August 2001 they would have foiled the plot one month later.

The government, in other words, needs by law to blame Moussaoui for the attacks even though he was reportedly clueless and in custody on 9/11. Moussaoui's lawyers, not surprisingly, therefore want to try to deflect blame from their client by arguing that government was clueless, too. They will try to convince the jury that nothing the defendant could have said in August 2001 would have awakened sleepy intelligence officials to the imminent threat of hijacked planes being piloted into buildings. So a trial about terrorism will also become a trial about foiling terrorism -- and our failure to do so back in 2001. Ugly? You bet.

Defense attorneys are going to hammer away at the government's pre-attack intelligence as they try to convince jurors that the feds knew way more than Moussaoui about the threat of hijacked planes being used as missiles. For example, they are likely to argue that if the government didn't do enough to beef up airline security after the infamous August 6, 2001 Presidential Daily Briefing memo entitled "Bin Laden determined to strike in U.S. (by hijacking airplanes)" than why in the world would an honest Moussaoui statement that month have done anything more to convince the machinery of government to get into gear? The idea will be to convince jurors that Moussaoui's silence- his refusal to divulge his terror training-- would not have made a difference.

It's a delicate balance for both sets of attorneys. After all, even if Moussaoui wasn't the 20th hijacker he really is a bad guy. He proclaims his terror ties to all who will listen. And he clearly had bad intent when he was taking those flight training courses. Had he not been arrested on immigration charges, he very well might have murdered hundreds or even thousands. And, in any event, he was by his own admission involved in a criminal conspiracy. The defense has to somehow acknowledge this to jurors-- to save their own credibility-- but at the same time keep reminding the panel that was not involved in the specific conspiracy that successfully achieved its notorious ends. He wasn't part of the plot to hijack planes on 9-11 and take down the Twin Towers and the Pentagon.

Government attorneys, meanwhile, have portray Moussaoui as the bogeyman even as they concede that he apparently knew very little about 9/11 and was instead part of a second or subsequent wave of terrorists. You can be sure that federal prosecutors will try to ensure that the enormity of the crime, the enormity of the event in human history, overshadows in the minds of jurors whatever minor role Mousasoui played in it. But there is a risk in that strategy, too, because if jurors believe even just a little bit that the government has the wrong guy, or is trying to shift its own measure of guilt for not stopping the attacks onto Moussaoui, there will be no death penalty. Remember, all it takes is one juror.

Is there enough evidence to tie Moussaoui to this horrific crime as a matter of law? Is there enough to justify a sentence of death? Can the government's "overlapping conspiracy" theory work here? We all will know in a few months. But no amount of fancy law talk, and no stretch of already stretched federal law, makes Moussaoui into the true bad guy of 9/11. That guy is hiding in a cave somewhere in Pakistan probably laughing at the whole episode. And that's why more bad things than good things can happen to the government during this trial; it's why the grieving families of 9/11 will never get the satisfaction they rightly seek and certainly deserve; and it's why the embarrassment and further loss of credibility the trial will generate for and to our intelligence community will hardly be worth it.

When the shouting is over, no matter what happens to Moussaoui, the trial will lay bare only two immutable truths about this story: 1) that the feds have tried disingenuously to make Moussaoui pay for the crimes committed by the real hijackers and Osama bin Laden, and; 2) that if Moussaoui's deceptive answers to authorities in August, 2001 "resulted" in the terror attacks of 9/11 than we were back then a nation that had to rely upon a sworn enemy like Moussaoui to deliver us from the evil of that day. Neither of these truths is pretty. But both are going to be forced upon us by an Administration that is too far deep to pull out of this case now and too stubborn to admit it never should have gone down this road in the first place.

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