Moussaoui's Star Witnesses

With jurors now in the midst of their capital sentencing deliberations, it ought to tell you something about the case against Al Qaeda conspirator Zacarias Moussaoui that no fewer than six current or former Bush Administration officials testified on his behalf Tuesday.

The list reads like a litany of Who's Who in Washington over the past few years -- Secretary of State Condoleezza Rice, former U.S. Attorney General John Ashcroft, former Director of the Central Intelligence Agency George Tenet and counterterrorism guru Richard Clarke all went to bat for the terrorist the government wants to execute for knowing in advance about the 9-11 plot and not telling anyone.

These luminaries did not of course come into federal court and appear live at the witness stand on behalf of the man connected to the worst crime in American history. But they did offer in their own words, on videotape, during testimony they gave years ago to the 9/11 Commission some of the most convincing evidence at the trial that nothing Moussaoui would have said when arrested in August, 2001 would have enabled the government to prevent the terror attacks.

And those words were highlighted by defense attorney Edward MacMahon during his closing arguments Wednesday. Over and over again, he cited Rice and Company to support defense claims that our government was simple unable and unwilling before 9/11 to understand and process what was about to happen. In this often surreal trial, where defense attorneys impeached the credibility of their own client, and prosecution witnesses embarrassed the US government more than Moussaoui ever could, it was a delicious bit of endgame theatrics from Moussaoui's lawyers to throw back at vital policy makers some of the fancy phrases (and pathetic excuses) they offered Commission members in discussing how it came to be that a few dozen men took down the mighty World Trade Center and gravely damaged the Pentagon. The message could not have been lost on jurors: the government has been saying out of court something completely different from what prosecutors are saying in court about the cause of 9/11.

Take Rice, for example, who was the head of the National Security Council on 9/11. She testified that there "was no silver bullet" that would have foiled the attacks in advance and that the government could not have hardened aircraft cockpits in three months even if it had known of a direct threat by hijackers. This is crucial to the case against Moussaoui because a prosecution witness last week had told jurors of many security measures that would have been implemented in the 25 days between Moussaoui's arrest and the terror attacks, if there had been advance warning. Rice's statement was so devastating to this government claim that prosecutors did not even mention the possibility of hardened cockpits during their closing argument.

John Ashcroft, meanwhile, also appeared in the trial, on tape and on behalf of the confessed terrorist he once famously, and incorrectly, labeled as the "20th hijacker." He told the 9/11 Commission that the Federal Bureau of Investigation's computer system actually was "42 systems" that often did not communicate with one another. Ashcroft also told the Commission, and therefore jurors, that the pre-9/11 legal wall that precluded intelligence sharing among law enforcement and spy agencies "impeded the investigation" of Moussoaui before the terror attacks. Remarks like this forced prosecutors to tell jurors during closing arguments to "keep your focus. This stuff is not what this case is about."

Meanwhile, Thomas Pickard, the acting FBI director from June to September 4, 2001, told the Commission, and therefore jurors, that he "was not aware" of Moussoaui before 9/11, despite frantic pleas for action by the agent who arrested Moussaoui. Pickard also testified that he was not made aware of the search for two Al Qaeda operatives (who later turned out to be 9/11 hijackers) who were known to be in the United States in the summer of 2001. The FBI, he said, was "being fed out of a fire hydrant" and could not process "tons of material" and for good measure he told the panel that the Attorney General had cut the budget for counterterrorism.

Then, it was left to Tenet, from the CIA, to summarize the essence of this part of the Moussaoui's defense. He told the Commission that a specific attack warning "is not good enough without a structure to put it into action." That's precisely what Moussaoui's lawyers say -- that even if Moussaoui had told federal agents whatever he knew about plans to use planes as missile, the bureaucratic structure in place before 9/11 would not have enabled enough people to know enough to do anything to prevent the attacks.

And, finally, Clarke's image was brought to the jury. The controversial face of anti-terror measures both before and after 9/11 also echoed a major defense theme of the case-- that it is only for the realm of regret and speculation to wonder what might have happened on 9/11 if things had happened differently before that awful day. "We'll never know" what would have happened, Clarke told the Commission. Later, he told Commissioners "I don't know what we would have done" with the information Moussaoui and other terrorists might have provided before 9/11. That's vital to the case because prosecutors must convince jurors beyond a reasonable doubt that had Moussaoui told the truth when arrested, the terror plot, or a great part of it, would have been foiled.

None of this testimony guarantees or even suggests that jurors will reject the government's argument that Moussaoui caused death on 9/11 and therefore is eligible for the death penalty. But now the record is even clearer than before that there were many reasons why Tuesday, September 11, 2001 turned out to be one of the worst days in American history. Jurors now are deciding whether and to what extent Moussaoui is culpable for what happened that day. But as Moussaoui's star-studded, surprise witnesses pointed out on video, the verdict already is out on the government's role in this sad affair.