Washington Post, Nov. 14, 2005, by Jerry Markon

As prepa­ra­tions inten­si­fy for the upcom­ing death penal­ty tri­al of Zacarias Moussaoui, new­ly unsealed court doc­u­ments are lay­ing out the argu­ments pros­e­cu­tors and defense attor­neys plan to make in what is like­ly to be the only judi­cial reck­on­ing for the Sept. 11, 2001, ter­ror­ist attacks.
Prosecutors will tell an Alexandria fed­er­al court jury that Moussaoui
deserves to die because he lied to the FBI when he was arrest­ed a month
before the ter­ror­ist assaults that killed near­ly 3,000 peo­ple, the papers
indi­cate. If the French cit­i­zen had con­fessed his knowl­edge of the hijack­ing
plot, the gov­ern­ment is expect­ed to argue, the car­nage of Sept.
11 could have been pre­vent­ed.

To build their case that Moussaoui should die, pros­e­cu­tors are plan­ning to
use admis­sions he made in April, when he became the first per­son con­vict­ed
in a U.S. case stem­ming from the attacks on the World Trade Center and the
Pentagon. When he plead­ed guilty, Moussaoui signed a state­ment of facts
admit­ting that he ​“lied to fed­er­al agents to allow his al Qaeda ​‘broth­er­s’
to go for­ward with the oper­a­tion to fly planes into American build­ings.“

Defense attor­neys, while argu­ing that Moussaoui actu­al­ly knew very lit­tle
about Sept. 11, are also prepar­ing to put the gov­ern­ment itself on tri­al.

Both the Bush and Clinton admin­is­tra­tions were warned that Osama bin Laden
want­ed to strike the United States, the attor­neys are argu­ing, but did
lit­tle to pre­pare. In fact, they say, the gov­ern­ment knew far more about bin
Laden’s inten­tions than did Moussaoui — and also knew enough about
Moussaoui to real­ize that he could pose a threat.

​“We need to know, almost frozen in time, what was known by the gov­ern­ment
before the planes hit the World Trade Center,” Moussaoui attor­ney Edward B.
MacMahon Jr. said at a clas­si­fied hear­ing whose con­tents were made pub­lic
last week. Defense attor­neys said that before Sept. 11, for­mer CIA direc­tor
George J. Tenet was briefed about Moussaoui after Moussaoui was arrest­ed
because his behav­ior at a Minnesota flight school was sus­pi­cious.
The title of the brief­ing: ​“Islamic Extremist or Islamic Fundamentalist
Learns to Fly.“

Moussaoui, 37, plead­ed guilty to six counts of con­spir­ing with al Qaeda and
said that bin Laden had per­son­al­ly instruct­ed him to fly an air­plane into
the White House. But he denied that he was plan­ning to be a Sept. 11
hijack­er and said his attack was to come lat­er. A tri­al, start­ing Jan. 9
with jury selec­tion, will now con­vene to deter­mine if he should be exe­cut­ed
or spend the rest of his life in prison.

The tri­al itself, expect­ed to last sev­er­al months at a cour­t­house just miles
from the Pentagon, promis­es to be extra­or­di­nary. Scores of reporters will
descend on a build­ing already under extreme­ly tight secu­ri­ty due to numer­ous
oth­er high-pro­file cas­es. Jury selec­tion alone, from a pool filled with
gov­ern­ment work­ers, is expect­ed to take almost a month, accord­ing to a
sched­ule set by U.S. District Judge Leonie M. Brinkema — far longer than
most high-pro­file cas­es.

During the pro­ceed­ings, rel­a­tives of Sept. 11 vic­tims will have their day in
court for the first time since the attacks. An unknown num­ber are expect­ed
to tes­ti­fy as part of a mas­sive and unprece­dent­ed out­reach the gov­ern­ment
mount­ed, both to secure rel­a­tives’ coop­er­a­tion in court and to help them
deal with their loss.

Prosecutors acknowl­edged in a recent fil­ing that their so-called vic­tim
impact evi­dence will be ​“emo­tion­al­ly charged.” The tri­al will also be aired
on closed-cir­cuit tele­vi­sion to Sept. 11 fam­i­ly mem­bers at high­ly secure,
remote loca­tions out­side Alexandria.

At the defense table, the tri­al could fea­ture wild unpre­dictabil­i­ty.
Moussaoui, an admit­ted al Qaeda mem­ber, is known for ram­bling speech­es and
heat­ed court­room out­bursts. When he plead­ed guilty, he called one of his
attor­neys a ​“Judas” and screamed: ​“Lord! God curse America!“

Sources famil­iar with the case said that Moussaoui has not talked to his
attor­neys in months. It is unclear how this will affect the defense case or
how Brinkema will react to any out­bursts. Brinkema ini­tial­ly grant­ed
Moussaoui the right to rep­re­sent him­self but revoked it after he scrawled
blis­ter­ing hand­writ­ten motions from jail in which he taunt­ed the gov­ern­ment
and com­pared the judge to a Nazi SS offi­cer.

Moussaoui has indi­cat­ed that he wants to tes­ti­fy, sources said, which is his
right under the U.S. Constitution. At his plea hear­ing, he said he would
​“fight every inch against the death penal­ty.“

Prosecutors and defense attor­neys would not com­ment beyond the court
fil­ings.

Moussaoui has been in the Alexandria jail for near­ly 4 years. He was
arrest­ed more than three weeks before Sept. 11 and was charged in December
2001 with con­spir­ing with al Qaeda in the Sept. 11 attacks.

A con­sti­tu­tion­al show­down over access to top al Qaeda detainees delayed the
case for more than two years. Moussaoui want­ed to inter­view the cap­tives,
say­ing they could clear him. Brinkema agreed, but the gov­ern­ment vehe­ment­ly
resist­ed on nation­al secu­ri­ty grounds.

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.

The 2 sides are still fight­ing over the issue. In May, defense attor­neys
sought access to oth­er detainees, recent­ly unsealed court fil­ings show.
Brinkema has yet to rule on the request. And the gov­ern­ment urged Brinkema
to recon­sid­er her ear­li­er rul­ings, say­ing the al Qaeda wit­ness­es are not
rel­e­vant to the sen­tenc­ing tri­al.

Brinkema declined to do so in an order unsealed Thursday, writ­ing that the
wit­ness­es’ state­ments ​“remain extreme­ly mate­r­i­al to this case.” It is
unclear how the state­ments will be pre­sent­ed at the tri­al, but what is clear
is that much will turn on whether jurors con­clude that Moussaoui lied to
fed­er­al agents after his arrest. The new­ly unsealed doc­u­ments indi­cate that
is the heart of the gov­ern­men­t’s case.

According to a tran­script of the Oct. 12 hear­ing unsealed last week in U.S.
District Court in Alexandria, Brinkema said to pros­e­cu­tors: ​“I think your
the­o­ry of the case now is that his fail­ure to tell the agents what he knew
about Sept. 11 result­ed in death.”

​“You are cor­rect, your hon­or,” respond­ed Assistant U.S. Attorney Robert A.
Spencer. Later in the hear­ing, Spencer referred to Moussaoui’s admis­sions in
the state­ment of facts and said: ​“We know he knew that much and lied, and
instead of giv­ing those answers, he gave false answers.“

The hear­ing tran­script was released with redac­tions; much of the mate­r­i­al in
the case is clas­si­fied. Attorneys can view clas­si­fied mate­r­i­al only in two
locked rooms — a defense room in the base­ment of the fed­er­al cour­t­house in
Alexandria and a gov­ern­ment room with­in the U.S. attor­ney’s office, locat­ed
in the same build­ing, sources said.

At the Oct. 12 hear­ing, defense attor­neys out­lined their argu­ment that
Moussaoui knew very lit­tle about Sept. 11 and that his con­fes­sion would­n’t
have stopped the attacks any­way because the gov­ern­ment had repeat­ed­ly failed
to act on warn­ings about al Qaeda’s plans.

​“We’re try­ing to pin­point what infor­ma­tion the gov­ern­ment had before 9/​11 .
. . to com­pare it with what Mr. Moussaoui may or may not have known or what
they did even with the infor­ma­tion that they had,” MacMahon said.

Another recent­ly unsealed defense fil­ing says that President Bill Clinton
was warned in 1998 ​“that bin Laden was prepar­ing to hijack United States
air­craft.” The same fil­ing cites a con­tro­ver­sial August 2001 brief­ing giv­en
to President Bush titled ​“Bin Laden deter­mined to strike in U.S.“

The White House declas­si­fied that brief­ing last year after a request from
the com­mis­sion inves­ti­gat­ing the Sept. 11 attacks. It warned Bush that the
FBI had infor­ma­tion that ter­ror­ists might be prepar­ing for a hijack­ing in
the United States and might be tar­get­ing a build­ing in Lower Manhattan.

​“Substantial evi­dence will be pre­sent­ed at tri­al,” Moussaoui’s attor­neys
wrote in their fil­ing, ​“that the United States gov­ern­ment knew more about al
Qaeda’s plans to attack the United States than did Mr. Moussaoui.”