Moussaoui Judge Warns Prosecutors
I have never understood how the Government could get the death penalty for Moussaoui on the theory that he was responsible for the 9/11 deaths not through his participation in the plot but through his failure to tell authorities what he knew so it could be stopped.
It seems the Judge today had the same concern.
"I must warn the government it is treading on delicate legal ground here," U.S. District Judge Leonie Brinkema said at the conclusion of the day's testimony, after the jury had left the courtroom. "I don't know of any case where a failure to act is sufficient for the death penalty as a matter of law."
Here's how the argument would play out...or not.
Both sides agree Moussaoui lied to the FBI, but they differ on what Moussaoui was legally obliged to do given the Fifth Amendment's guarantee against self-incrimination. Prosecutors argue that once Moussaoui agreed to talk to federal agents, he was required to tell the truth - to confess his ties to al-Qaida and his plans to fly an airplane into the White House. The defense argues Moussaoui was not required to confess.
The issue is crucial because, to obtain the death penalty, prosecutors must prove that federal agents would have prevented at least one death on Sept. 11 if Moussaoui had not lied.
As I wrote here,
If that's the yardstick, why is Moussaoui facing death when Michael Fortier got 12 years for not alerting authorities to the Oklahoma City bombing. Is it that Fortier cooperated against McVeigh and Nichols and Moussaoui is too crazy to provide a coherent statement against anyone? Or is it that 3,000 dead is worth death while 165 dead is only worth 12 years?
This trial has nothing to do with accountability for those responsible for 9/11. Moussaoui wasn't one of them.
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