USA Today
March 19, 2002

Moussaoui Case Tests Sept. 11 Probe

By Toni Locy

ALEXANDRIA, Va. -- The trial of terrorism suspect Zaccarias Moussaoui is more than six months away, but prosecutors and defense attorneys already are prodding each other's cases for weaknesses to exploit in what could be one of the most significant courtroom battles in U.S. history. For prosecutors, the pressure is especially intense. They are preparing for trial on the fly as the FBI, worried that the case against Moussaoui isn't strong enough, has agents crisscrossing the globe in search of additional evidence that might link him more definitively to the Sept. 11 attacks.

The stakes are enormous: This will be the first and maybe the only trial in the USA for someone charged with being involved in the al-Qaeda conspiracy that officials say carried out the attacks that killed more than 3,000 people.

Looming over prosecutors is the first big deadline in the case against Moussaoui, a French-Moroccan who faces six conspiracy charges, four of which could result in the death penalty. By March 29, prosecutors must decide whether to seek the execution of Moussaoui, 33, who on Sept. 11 was in a Minnesota jail on immigration charges.

Legal analysts say the decision appears to be a done deal, and they expect the government to go for the maximum punishment. But though the largest probe ever by U.S. authorities has generated enough evidence to fill more than 100 CD-ROMs, top FBI officials worry that more is needed to bolster the circumstantial case built so far, law enforcement sources say.

Investigators have not linked Moussaoui directly to any of the 19 hijackers. At this point, the government's case focuses on steps he took here and abroad that mimicked those of the hijackers.

Like several of the hijackers, Moussaoui allegedly received money from Ramzi bin al-Shibh, an al-Qaeda operative in Germany who now is one of the world's most-wanted terrorism suspects. Like two of the hijackers, Moussaoui allegedly met in Malaysia with Yazid Sufaat, an alleged al-Qaeda operative who was arrested by Malaysian police in December and is believed to have been Moussaoui's main moneyman.

And like the hijackers, Moussaoui took flight lessons, inquired about crop-dusting, bought flight-training videos and joined a gym.

20th hijacker?

Despite the similarities, there are nagging questions:

Was he meant to be the 20th hijacker? Was Moussaoui, who called attention to himself with his aggressive behavior and expired visa, really part of a group that acted in exactly opposite ways? Was he a castoff who had been rejected by the hijackers, or maybe part of another wave of planned attacks? Did he know that the Sept. 11 plot's ultimate goal was not only to commandeer four commercial jets but also to crash them in New York City and Washington?

Law enforcement sources say FBI officials have no doubt that Moussaoui was up to no good. But are his suspicious activities enough to convict him and send him to the death chamber? Legal analysts say they probably are sufficient for a guilty verdict and might be enough for a death sentence.

Conspiracy is one of the easiest charges to prove. It is simply an agreement to commit a crime. Under the law, it is not necessary for all conspirators to have participated in the planning of every detail. Prosecutors need to prove only that Moussaoui agreed to the overall plan and committed at least one act to move along the conspiracy. Moussaoui's indictment lists more than 100 such acts.

Moussaoui's is one of three major terrorism cases scheduled for U.S. courts this year. But unlike those involving American Taliban fighter John Walker Lindh or Richard Reid, the Briton who allegedly tried to blow up a jet with explosives in his shoes, Moussaoui's case is a symbol of U.S. authorities' efforts to crack the conspiracy behind the deadliest assault ever on the nation.

Legal analysts say that from now until the scheduled beginning of jury selection Sept. 30, Moussaoui's prosecutors must:

Moussaoui's attorneys are aware of the FBI's concerns, but they have worries of their own. Chief among them is an unpredictable client. Moussaoui has been defiant nearly every time he has appeared in court. He has refused to stand out of respect for the judge and has spoken for himself, rather than allowing his attorneys to do so. Without his cooperation, defense attorneys could be hamstrung.

Legal analysts say they must:

Despite the edge that prosecutors often have in conspiracy cases, analysts say Moussaoui's attorneys have options. "I think they have a lot to work with," says Robert Precht, director of the University of Michigan Law School's public service program.

The gamesmanship between the two sides will play out over three fronts. Attorneys will battle over how much secret evidence can be used, whether Moussaoui really was involved in planning the attacks and, if he is convicted, whether he should be executed.

"It's going to be like playing three-dimensional chess," says Washington lawyer Preston Burton, a former federal prosecutor.

This summer, prosecutors David Novak, Robert Spencer and Kenneth Karas will fight to keep government secrets secret. The defense will push to present as many as possible in open court. Much of the evidence is "Top Secret," meaning its disclosure could cause "grave damage to national security," court records say.

Legal analysts say the defense will want the jury to hear any evidence the government has that suggests Moussaoui was unaware of the scope of the Sept. 11 plot. Before they could begin viewing the classified evidence, defense attorneys Frank Dunham, Gerald Zerkin and Edward MacMahon underwent background checks and were fingerprinted. Prosecutors already have "Top Secret" clearance.

The secret evidence will be kept in a secure room, most likely at the federal courthouse here, where defense attorneys will be constantly monitored. They are not permitted to take with them any notes they make, or discuss the evidence on unsecured telephones.

Before U.S. District Judge Leonie Brinkema hears disputes involving classified evidence, her courtroom will be swept for electronic eavesdropping devices. The doors will be locked; only Brinkema, the lawyers and certain court workers will be allowed inside. Moussaoui will not be permitted to attend.

Echoes of embassy bombings

Above the entrance to the courthouse here is a statue of Lady Justice, appearing as if she is in mid-stride as she holds the scales of justice. It is a fitting symbol for a courthouse that is home to what defense attorneys call "The Rocket Docket," where judges are known for moving cases along.

Saying it is in the public's interest to hold Moussaoui's trial quickly, Brinkema has dismissed defense concerns about picking a jury a few weeks after the one-year anniversary of the Sept. 11 attacks.

But last month, she extended a key deadline to give prosecutors more time to organize evidence and to allow defense attorneys a chance to evaluate it. The 100 CD-ROMs given to the defense so far represent a small part of the tens of thousands of records the probe is expected to generate.

Dunham, who became the Alexandria court's first public defender last year, says the case is stretching his new office's resources. He worries how his staff of mostly female investigators will do interviews in Muslim countries where women are viewed as subservient to men.

The evidence against Moussaoui bears chilling similarities to the government's case against four men convicted last year in New York City in the 1998 bombings of two U.S. embassies in East Africa. The introductory section of Moussaoui's indictment, which lays the groundwork for prosecutors to describe al-Qaeda's workings, is so similar to the opening charges in the East Africa case that legal analysts expect prosecutors to call some of the same witnesses.

The most likely are Jamal Ahmed al-Fadl, a Sudanese who says he was one of al-Qaeda's first members, and L'Houssaine Kherchtou, a Moroccan who was a terrorist trainer.

Al-Fadl and Kherchtou, who are in U.S. custody, can testify how al-Qaeda attracted rebellious, middle-class young men such as Moussaoui with promises of martyrdom. The pair also can explain how al-Qaeda leaders screened recruits at training camps in Afghanistan, searching for the most fanatic followers to send on suicide missions. Moussaoui allegedly attended an al-Qaeda camp in 1998.

Other possible witnesses include men who were captured in Afghanistan, detained in the USA on visa violations or who are in custody elsewhere. That includes Sufaat, who could be a witness in this trial or a defendant in a separate case. Sufaat allegedly gave Moussaoui $35,000 before Moussaoui entered the USA last year.

The trial will be in the Eastern District of Virginia, where prosecutors are among the nation's leaders in seeking the federal death penalty. Jurors in the district's Norfolk and Richmond divisions have imposed death sentences, but there has not been one in Alexandria. In state courts, northern Virginia jurors have shown no hesitation, helping to make Virginia second to Texas in death-penalty convictions.

If Moussaoui is convicted and the government presses for the death penalty, the case will be a rematch between prosecutor Novak and defense attorney Zerkin.

Novak, 40, an expert on federal death cases, and Zerkin, 52, who is known for his work on behalf of Virginia's death-row inmates, have faced each other three times in capital cases. Each time, Zerkin's clients received life sentences-twice through plea bargains and once after a trial.

If Moussaoui is convicted of at least one of the four conspiracy charges that carry the death penalty, "the death phase is where the real fight in this case will be," says Washington lawyer Beth Wilkinson, a former federal prosecutor who handled the McVeigh case.

It also would be when the jury likely would hear compelling evidence about the impact of the Sept. 11 attacks. In the Oklahoma City case, "we had the deaths of the children," Wilkinson says, referring to the 19 children who died in the 1995 bombing of the federal building there. "Here, they have rescue workers who were killed for ... (just) doing their jobs."

If prosecutors decide to seek the death penalty, by March 29 they will file what is known as a death notice. Such papers list "aggravating evidence" that the jury would consider in deciding Moussaoui's fate if he were found guilty: Did he know death could result from his actions? Did he operate in a depraved manner? All jurors would have to answer yes before he could be sentenced to death.

The defense, meanwhile, is assembling evidence that analysts say likely would stress that Moussaoui's role in the Sept. 11 plot was minor, and would raise his mother's theory that he was brainwashed by radical Muslims.

Brinkema could be key in such a situation because of her reputation for giving defense attorneys latitude in presenting mental health testimony, analysts say.

Perhaps the defense's biggest decision, Precht says, will be whether to battle prosecutors on every piece of evidence and risk annoying jurors, or to essentially concede Moussaoui's guilt and focus more on saving his life. Precht says that would require the defense to say, "Yeah, he did it, but don't kill him."

Copyright 2002, USA Today. All rights reserved.

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