How the Moussaoui Case Crumbled

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PHOTO ILLUSTRATION FOR TIME BY AMY GUIP

Zacarias Moussaoui

U.S. authorities easily nabbed Zacarias Moussaoui in the weeks before 9/11, but prosecuting the alleged terrorist has been far from smooth. Here are the twists and turns in a case many thought would be open-and-shut:

When Zacarias Moussaoui was enrolled in flight school in Eagan, Minn., he could have easily looked up in the sky to see the kind of airplane he wanted to fly. Along the approach to the Minneapolis-St. Paul airport, 747s screamed overhead day and night. His flight instructor at Pan Am International Flight Academy found Moussaoui genial but clueless and totally unable to explain why he wanted to pilot a 747. The school's administration called the fbi, and he was arrested nearby on Aug. 16, 2001. When investigators interviewed the 33-year-old French Moroccan and asked him whether he planned to use a plane for a terrorist attack, he either did not answer or asked for a lawyer, according to different sources familiar with the session. He was then held for overstaying his visit to the U.S.

Less than a month after he was locked up, 19 al-Qaeda operatives boarded four commercial jetliners and turned them into aerial bombs, killing more than 3,000 people in the worst terrorist attacks ever on U.S. soil. Within days, investigators began piecing together intriguing parallels between Moussaoui's actions and those of the hijackers. He had come to the U.S. to attend flight school, just like the hijackers; he too had purchased knives; he too possessed flight manuals for commercial jets. Three months to the day after the attacks, Attorney General John Ashcroft proudly announced a showstopping list of conspiracy charges against Moussaoui—who the government strongly hinted was the missing 20th hijacker—calling the indictment "a chronicle of evil." He was—and remains—the only person in the U.S. charged in connection with 9/11.

Nearly two years later, the government's case, which had been billed as a slam dunk, is a shambles. On Oct. 2, U.S. District Judge Leonie Brinkema said prosecutors could not seek the death penalty for Moussaoui and could not even allege that he had a link to the 9/11 conspiracy. She put those shackles on the government's case because it had denied the defendant, on national-security grounds, access to witnesses who were in a position to say whether he was part of the 9/11 gang—Ramzi Binalshibh, Khalid Sheikh Mohammed and other key al-Qaeda figures the U.S. has captured. Prosecutors are appealing the decision, with their first briefs due this week. But if they lose, they may be stuck with a precedent that would allow defendants access to avowed terrorists, perhaps inspiring the government in the future to try all such cases in military tribunals. Unless Moussaoui's prosecutors yank the case into a tribunal, it would mean that they would have to pursue much reduced charges. Instead of proving Moussaoui to be an actor in a plot that murdered thousands, they would have to accuse him of simply being a me-too schemer whose efforts went nowhere.

The question is, How did such a seemingly sure thing go astray? Was it ill conceived from the start or a matter of everything going wrong that could? Was it a mistake not to go to a military court in the first place, or is the case going exactly the way it should for a government that may have overplayed its hand in the zeal to show it was combatting terrorism? It's unclear whether anyone could have foreseen the twists and turns, such as Moussaoui becoming his own counsel, that began to unravel the government's case. But the case now is pivotal for another reason: it has become a showdown between the basic right of criminal defendants to prove their innocence and national-security concerns that can affect the lives of many others. Here's how this supposedly open-and-shut case turned into an unruly tangle of conflicting legal principles:

1. ALLEGING THE LINK TO 9/11
after the terrorist attacks, investigators discovered that Moussaoui, who had lived in London and had a master's degree from South Bank University, had recently been to Pakistan and Malaysia and had spent time at a terrorist training camp in Afghanistan. Moreover, in a notebook he had the German phone number and alias of Ramzi Binalshibh, a key orchestrator of the 9/11 attacks and, like the hijackers, had been wired funds by him.

But from the start, the government's case against Moussaoui was utterly circumstantial, and the connection between the hijackers and him was mainly inferred from their similar profiles. In fact, sources tell Time, the fbi has long believed that Moussaoui played no part in the 9/11 scheme and was only a minor player in al-Qaeda. Still, the Justice Department's December 2001 indictment laid out in chilling detail the 19 hijackers' activities in the months leading up to Sept. 11, alongside Moussaoui's doings over a similar time frame. Their tracks were roughly parallel, but direct contact between Moussaoui and the 19 was never alleged. The government charged him with being guilty, like them, of conspiring to commit terrorist acts, to destroy aircraft and to murder federal workers, and related offenses, "with the result that thousands of people died on Sept. 11, 2001."

That the government would seek the death penalty was never in serious doubt, though prosecutors did not ask for it formally until the following March. What was in play until nearly the day of the indictment was whether Moussaoui would be charged in federal court or would become the first defendant in the new military-tribunal system that Bush authorized in November. The Pentagon fought for control of the case, but the Justice Department, led by criminal-division chief Michael Chertoff, won out, wanting to show that the U.S. criminal-justice system could handle a major terrorism case in the post-9/11 world.

2. ZACARIAS FOR THE DEFENSE
on april 22, 2002, all parties to the case assembled before Judge Brinkema in Alexandria, Va., for what was supposed to be a routine motion hearing. But when federal public defender Frank Dunham identified himself and co-counsels as present for the defense, Moussaoui jumped in: "No, I am sorry to note they are not anymore my lawyer."

He followed up with a courtroom-rocking, 50-minute discourse in which he prayed for "the destruction of the United States" and "the destruction of the Jewish people and state," accused his court-appointed attorneys of trying to get him executed and said he wanted to be his own lawyer. Brinkema warned him of the consequences, including the fact that he would not have access to the mountain of classified material that his lawyers, who had got security clearances, would be able to use. She then ordered a mental-competency exam, which concluded that he was capable of making the decision, and granted his request.

Moussaoui went to work right away plastering the docket with pretrial motions with titles like "Motion to Stop the Cynical Comedy, Parody, of Justice Directed by DJ Brinkema," filed in July 2002, and "Motion to Stop the Pervert Game of the Fascist Bureau of Inquisition Against My Distraught Mother," filed last March. The government was not happy, fearing that Moussaoui would use the courtroom as a stage to promote al-Qaeda's cause and perhaps even send coded messages to other terrorists. At the same time, Moussaoui's fired defense lawyers, still on the case as standby counsel, worried that he would fashion his own noose. As the government filed revised indictments, Moussaoui tried to plead no contest or even guilty before Brinkema patiently explained that he would be confessing to all the charges if he did so. Instead, he declared his allegiance to al-Qaeda and Osama bin Laden while denying any role in 9/11. "I had nothing to do with Sept. 11," he said.

3. THE WAR OVER WITNESSES
Early on the morning of Sept. 11, 2002, Pakistani intelligence officers engaged in an intense fire fight with occupants of a suspected al-Qaeda safe house and captured Ramzi Binalshibh, a former housemate of some of the hijackers and an alleged coordinator of the attacks. Binalshibh's capture was a victory in the war against terrorism, but Moussaoui saw the arrest as something more practical: it offered a possible witness for his defense. He asked the court for the opportunity to depose Binalshibh. In fact, he had been named in the Moussaoui indictment, which seemed to hint that Moussaoui was to have taken Binalshibh's place in the 9/11 attacks after Binalshibh failed to get a visa to enter the U.S.

All defendants have a constitutional right to interview witnesses who might help prove their innocence. But the Pentagon and the cia refused to make Binalshibh available, saying he was undergoing interrogation and that vital national-security concerns made him off limits. The clash prompted a flurry of court filings and intense discussions within Justice about whether to abandon the case and refile it in a military tribunal, where Moussaoui's rights would be more limited and intelligence issues could be kept under wraps.

In January, Brinkema said Moussaoui could take a videotaped deposition of Binalshibh, a ruling that the government quickly appealed. Binalshibh had reportedly told investigators that Moussaoui was considered too unreliable for the 9/11 attacks, did not know about them and was to be used only if absolutely necessary. In March, Khalid Sheikh Mohammed, the self-described mastermind of the 9/11 strikes, was captured in Pakistan, and three days later Moussaoui demanded access to him as well. As it turned out, Mohammed later told interrogators that Moussaoui was to be used for a separate attack unrelated to 9/11.

With its efforts to bar access to these and other witnesses, the government was forging new and untested legal theory. "An alien seized and detained abroad as an enemy combatant in the midst of a war is beyond the court's power to compel his testimony," prosecutors said in their brief to the Fourth Circuit. But the appellate judges said it was premature for them to intervene, sending the case back to Brinkema. On July 14, the government announced it would defy her order to allow Moussaoui to depose Binalshibh. While Brinkema was mulling over sanctions, she also granted the defense access to two more witnesses held overseas, including Mohammed.

4. JUDGMENT DAY
For months, moussaoui had continued to file pleadings from his cell, but when he learned last April that the government, in a closed hearing, had presented a new theory of his role in 9/11—that he was meant to pilot a fifth plane into the White House in a separate attack—he called on Brinkema to send Ashcroft a multiple-choice question asking how he saw Moussaoui. "Death Judge you must force Ashcroft to tick the box," he scrawled. Each choice had a blank box next to it: "20th Hijacker," "5th Plane to Dark House," "I, Ashcroft don't know" and "Lets just kill ZM."

On Oct. 2, Brinkema announced her sanctions against the government for defying her order to produce Moussaoui's witnesses, telling prosecutors that the death penalty was off limits and that they had to make their conspiracy case without reference to Sept. 11. Back in France, Moussaoui's elated mother said she had ceased to worry that "my son has one foot in this world and one foot in the death chamber." Brinkema, after evaluating the government's case and reviewing all the classified material, basically agreed with Moussaoui that he was only on the fringes of the 9/11 attacks. "It simply cannot be the case," she wrote in her order, "that Moussaoui, a remote or minor participant in 'al Qaeda's war against the United States,' can lawfully be sentenced to death without any evidence that the defendant himself had any direct involvement in, or knowledge of, the planning and or execution of those attacks."

Curiously, prosecutors wished Brinkema had dismissed the case; they believed it would mean a cleaner and easier appeal. That's because, as public defender Dunham puts it, "it's a harder appeal for the government when it has lost the argument that we either have to compromise our national security or let Moussaoui go free. Instead, it's 'We either have to compromise our national security, or we can't kill him,'" which is exactly what government lawyers will have to argue now that Brinkema has taken away much of their case.

But Brinkema's order also has the effect of offering the government a conspiracy case that it can more easily win; it just has to delete any reference to 9/11. After all, Moussaoui has admitted to being an al-Qaeda member, even saying that he was planning an attack. "I was part of a different operation, with different al-Qaeda member and target," he wrote last January. Prosecutors can also place him at meetings with a number of al-Qaeda leaders. Moussaoui might even plead guilty to such a case and would be locked up for life.

While that may seem like a substantial victory, to the government, it is a comedown. In December the Fourth Circuit will hear its appeal. If the appellate judges uphold Brinkema's ruling, the government could end up with exactly what it does not want: a precedent requiring it to provide access to captured terrorists being held overseas. This would surely lead to a greater use of military tribunals or the designation of defendants like Moussaoui as "enemy combatants," a label the government has given three men being held without recourse to lawyers or judicial review. Whichever way the ruling goes, the case will surely go to the Supreme Court.

So has the government risked a legal mess by aiming for a politically popular conviction? "Everybody played by the rules," says Andrew McBride, a former federal prosecutor in Virginia who believes Moussaoui belonged in a military tribunal from the start. "But the rules led to some dramatic and absurd results in this case." Veteran Virginia defense lawyer Nina Ginsberg, on the other hand, says the system is working exactly as it should. Brinkema was right, she says, to "not totally destroy" a defendant's right to use exculpatory witnesses to get a fair trial.

In announcing Moussaoui's indictment two years ago, the Attorney General said, "Al-Qaeda will now meet the justice it abhors and the judgment it fears." Now the government may get a judgment it fears, and justice may be served in quite unexpected ways.

—With reporting by Elaine Shannon/Washington and Bruce Crumley/Paris