home

Moussaoui Judge to Let Case Go to Jury, Moussaoui to Testify

There was a lot of secrecy surrounding the trial of Zacarias Moussaoui today, but from this Washington Post news account, here's what happened: The prosecution rested, after which the defense made a motion for judgment of acquittal in a sealed hearing, and the trial resumed in open court with the defense calling its first witness. Shorter version: The defense lost it's motion for judgment of acquittal.

I can't find any record of a ruling on this defense motion which was filed Tuesday. I discuss it at length here. Apparently, the Judge has decided to let the Government switch horses in midstream. The defense had claimed the Judge's order reconsidering the admission of the aviation testimony and witnesses has allowed the Government to expand its theory for the death penalty from one that alleges Moussaoui's lies directly resulted in at least one death on 9/11 to one that claims his failure to tell the truth on 9/11 caused a death. As the defense pointed out:

the Court has seemingly endorsed an expansion of the Government's theory of death eligibility, a theory which has transmogrified "the defendant's lies directly resulted in death" to "the defendant's failure to tell the truth to the FBI when interrogated directly resulting in death." See Order at 2. ("a government aviation witness may testify as to what the United States government 'could' have done to prevent the attacks, had the defendant disclosed in August 2001 the facts that he admitted in pleading guilty") (emphasis added).

Given that the Government's theory of eligibility was not directly the subject of the Government's Motion for Reconsideration, and given its importance to the case, the defendant requests that the Court reconsider the language in its Order that allows government witnesses to base their testimony on the information Moussaoui admitted as part of his guilty plea. As explained below, not to do so would violate the defendant's constitutional rights to notice and indictment by a grand jury, and to due process, as well as the provisions of the FDPA.[Federal Death Penalty Act.]

The defense points out, correctly in my view, that acts and omissions are not the same. The federal death penalty statute allows the Government to seek death for certain acts. It makes no mention of ommissions.

the Government's theory would require a judicial rewriting of the statute. 18 U.S.C. § 3591(a)(2)© does not provide for an "act" or "omission" as the basis for death eligibility; it only provides for an "act." The Government cannot rewrite the statute to fit its purposes, nor can it transform the failure to do something, i.e., the failure to tell the truth, into something it is not -- the actual "act" of lying, i.e., confessing or telling falsehoods.

Because Moussoui was under no obligation to speak with authorities after his arrest, and had a constitutional right not to speak with them, the defense lawyers argue:

By allowing the Government to proceed in this fashion, the Court will violate the notice and indictment requirements of the Sixth Amendment to the United States Constitution and the defendant's Fifth Amendment rights to due process, and not to incriminate himself, as well as the Federal Death Penalty Act itself. Moreover, it will endorse abject speculation as to the content of a conversation between Agent Samit and Mr. Moussaoui which never took place.

They make another excellent point: that the witnesses should not be allowed to testify about what the FBI and FAA might have done had they known what Moussaoui admitted during his guilty plea. It is merely speculation because there is no evidence that had Moussaoui decided to speak with them, he would have told them the facts he admitted when pleading guilty.

While there is no docket entry showing a ruling on the motion, I assume it was denied because the witnesses yesterday and today continued to testify about what they would have done if Moussoui had told them the facts contained in his plea agreement. I think this will be a good appellate argument for Moussaoui if he's convicted. He was under no obligation to talk to them at all, so how can what he failed to say be used against him?

I think the defense will continue to try and establish, now through its witnesses, that the government knew more about 9/11 beforehand than Moussaoui did and it was the FBI who dropped the ball. If there was any chance of preventing 9/11, it lay with the Government, not Moussaoui, who didn't even know the date of the attacks, the targeted buildings or the identity of the hijackers.

Moussaoui has admitted conspiring with al-Qaida to fly planes into U.S. buildings. But he was not part of 9/11 and the consensus seems to be that he was training as a pilot to fly a 747 into the White House as part of a possible later attack. Whether or not al Qaeda would have let the bumbling holy warrior participate in a later attack is an open question.

As has been the case all along, Moussaoui is his own worst enemy. Today he shouted in court that he will testify, which is his constitutional right. As the WaPo reports,

...the al-Qaeda operative made it clear in his typically theatrical style that he intends to take the stand. "I will testify, whether you want it or not!" Moussaoui yelled as he was escorted from the courtroom by federal marshals. "I will testify!"

The AP has more today's proceedings:

[Defense lawyer Ed] MacMahon got [FBI Agent] Zebley to acknowledge that nothing in the confession or in FBI evidence gathered since then shows any contact between Moussaoui and the 9/11 hijackers, who lived, trained and traveled together in small groups.

...MacMahon brought out that the CIA knew in March 2000 that two of the 9/11 hijackers - Nawaf al-Hazmi and Khalid al-Mihdhar - had entered the United States in 2000 after attending a conference with Osama bin Laden associates in Malaysia. He showed that the CIA finally told the FBI on Aug. 23, 2001, that the pair were in the United States, and that the FBI sent a message marked "routine" on Aug. 28 asking its New York office to look for them. On Sept. 10, 2001, the FBI New York office asked the Los Angeles office to check for them in hotels there, according an FBI document MacMahon introduced.

"What could have been done if the U.S. government had tracked al-Hazmi and al-Mihdhar in the summer of 2001?" MacMahon asked. "We'll never know, right?" Zebley conceded that point.

The defense called former FBI agent Erik Rigler as its first witness.

[Rigler] summarized a Justice Department inspector general report that criticized the CIA for keeping the al-Hazmi and al-Mihdhar intelligence from the FBI for so long and the FBI for assigning pursuit of the pair to one inexperienced, young agent. It said the pair was on Thailand's watchlist in January, 2000, but not on a U.S. watchlist until August, 2001.

< Maher Arar Testifies At EU Commission Hearing | Drug Sentences Getting Longer, Despite Booker >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft


  • Re: Moussaoui Judge to Let Case Go to Jury, Moussa (none / 0) (#1)
    by cpinva on Thu Mar 23, 2006 at 11:18:09 PM EST
    i had to read this a couple of times, because i was too astonished the first time. i thought certainly i had misunderstood it. should this ruling stand, we will have finally entered the "twilite zone" of U.S. jurisprudence. if i understand this correctly, exercising your 5th amendment right to not be forced to incriminate yourself, could conceivably subject you to be sentenced for a crime you're not charged with, didn't commit and knew nothing about. george III must be rolling in his grave. assuming this will be appealed, i hope that the appelate court has the courage to see this for what it is: a transaparently tortured, political decision. it's sad really, the presiding judge has always been known for her excellent work on the bench, this will be a needless black mark on her record. just exactly how many bites of the apple does the govt. get?

    Re: Moussaoui Judge to Let Case Go to Jury, Moussa (none / 0) (#2)
    by Che's Lounge on Fri Mar 24, 2006 at 12:35:41 AM EST
    Why don't they save the legal masturbation and just shoot him? No matter how badly the prosecution screws up the judge just keeps giving them a pass. Turns out "And Justice For All" was a documentary.

    Thanks, CP for taking the time to read it. I always try to write these posts based not only on the news articles, but on the pleadings both sides file, which are available on the court's website. Next week there should be some great surprises, when testimony of two detainees the U.S. shipped overseas for interrogation get heard (through interviews, I believe, the defense was not allowed to have access to them in person. I've been following this case since it began and it has always seemed to me that they are going for the closest link to the 9/11 guys, Moussaoui wasn't one of them but he's the next best thing.

    one possibility, if there's no entry for a ruling on the defense motion for acquittal, is that brinkema reserved judgment on the motion. thanks for the in depth coverage of this trial, i've really enjoyed reading it.

    Oh thank god. I thought execution would be out of the question after they fumbled the prosecution but it looks like Mr. Moussaoui will make it up to them and testify. He might as well just shoot himself now and save his breath, because to say this:
    As has been the case all along, Moussaoui is his own worst enemy.
    is an understatement of monumental proportion. Execute the bastard and let's just move along.

    Execute him? For what? Bein' an idiot? Havin' beliefs that we don't like? Isn't that more or less what they're fixin' to do in Afghanistan to that fella that everyone finds so reprehensible? I don't see much evidence that he actually did much beyond try to take flying lessons and shoot his mouth off no matter how much he may have wanted to. Are you actually a lawyer or just another cracker jack box shrub shill like the rest of these clowns? We supposed to off this guy 'cause you're bored, sport? They teach ya that in Law School? That's what I thought.

    Re: Moussaoui Judge to Let Case Go to Jury, Moussa (none / 0) (#7)
    by Peter G on Fri Mar 24, 2006 at 08:06:14 AM EST
    Upon arrest, and in detention by INS, Moussaoui has a right to remain silent (that is, to more nearly paraphrase the Fifth Amendment, a right not to be compelled to be made a witness against himself in any criminal case). But he did not remain silent; he spoke. Assuming that he spoke voluntarily (a big assumption, but let's assume) and then did not tell the truth, what does the Fifth Amendment have to do with it? I think we all realize that a statement can be something other than the truth because it is incomplete -- even when what is said is literally factual -- as well as when it is fabricated. Massaoui supposedly lied in what he did say; it's not even that he told a half-truth. I don't understand the argument that this constitutes a form of "remaining silent."

    Re: Moussaoui Judge to Let Case Go to Jury, Moussa (none / 0) (#8)
    by Rick B on Fri Mar 24, 2006 at 10:09:25 AM EST
    I'm no lawyer, but this seems unbelievable to me. The only thing that makes it even close to reasonable is the pressure by families of the dead from 9/11 to kill someone. The fact that the actual culprits all died in commission of the crime certainly makes legal vengence hard to come by, and Moussaoui is as close as they can get. So the judge seems to be giving the prosecution as much latitude as possible to put on the best case that remains after they screwed it up, and in the end there is the hope that the jury will do the correct thing. If they don't, then the judge may simply declare that the case was not proven under the law, or the appeals courts may reverse a judgement. With luck all of that will be after the press has moved on to other issues (Yeah. Right. Fat chance.) Somehow everything that has happened since Bush started running for President has seemed utterly surreal. This trial is just one more example.

    Re: Moussaoui Judge to Let Case Go to Jury, Moussa (none / 0) (#9)
    by Dadler on Fri Mar 24, 2006 at 10:48:26 AM EST
    JRT, You concluded: Is it possible for anyone other than a white male straight Christian to ever do anything wrong? You people are sick! Why is it necessary to ruin your otherwise perfectly legitimate dissenting post with this type of childish, irrational, comical nonsense? This thread is about the legal issues relative to the Moussoai case -- the law being that thing a free country adheres to even when it's unpleasant or makes on uncomfortable. If you think anyone here wants to go out and have brunch with the defendent or only wants to prosecute, what was it?, "a white male straight Christian", I'd suggest you try to get beyond the misplaced anger and explicit prejudice that we all suffer from at times, but which can never be allowed to trump the rights to a fair and constitutional trial.

    So much to work with, charlie. Gotta start somewhere, so I start here:
    Execute him? For what? Bein' an idiot? Havin' beliefs that we don't like?
    I'm glad you recognize he is an idiot. But calling him a mere idiot diminishes the danger he not only represents but sought to practice prior to his detention. His avowed belief is the death of Americans, any and all. But he wasn't just sitting idly by, making threats on a blog comment thread. He was actively training to hijack and down planes full of passengers into targets full of civilians. Luckily, his idiot ways got the better of him and he got caught. So any punishment would be for the harm he sought to inflict on innocent people.
    I don't see much evidence that he actually did much beyond try to take flying lessons and shoot his mouth off no matter how much he may have wanted to.
    The evidence was in the company he kept. He has been linked to the 19 other who were successful. His shooting off at the mouth prevented him from playing a role. That doesn't erase his intent and the effort he put into realize that intent.
    Isn't that more or less what they're fixin' to do in Afghanistan to that fella that everyone finds so reprehensible?
    Not even with your "more or less" qualification is this remotely accurate. He was seeking to kill innocent people on an awesome and horrific scale. Mr. Rahman in Afghanistan is merely acting his conscience by practicing his religious belief. See? It's not "more or less" the same. Not even by a long shot. In fact, both are directly related to the negative aspects of Islam we are currently at war with. Moussaoui is a jihadist. Rahman is being oppressed by an excessively oppressive reading of Shir'a.
    Are you actually a lawyer or just another cracker jack box shrub shill like the rest of these clowns?
    All I'm going to say is I dont think I'm a "cracker jack box [Bush] shill." I'll allow my comments to stand on their own two feet and leave it to other readers to judge their quality and validity.
    We supposed to off this guy 'cause you're bored, sport?
    Actually, boss, we're supposed to execute him because he represents an immediate material threat to the safety and security of all Americans.

    Peter G., I think the argument is that once he asked for a lawyer, two days into questioning, he had no obligation to say anything. The Judge almost granted a mistrial when the first FBI witness who took the stand was asked whether Moussaoui had contacted the FBI after that date and before 9/11 to volunteer information that could have stopped the attacks. From this March 13 AP article:
    Brinkema said she also would reconsider the defense's request of last week for a mistrial - made after a question from Novak suggested to the jury that Moussaoui might have had an obligation to confess his terrorist connections to the FBI even after he had invoked his right to an attorney. She noted that when Novak asked the question Thursday, she ruled it out of order after the defense said the question should result in a mistrial. The judge warned the government at that point that it was treading on shaky legal ground because she knew of no case where a failure to act resulted in a death penalty as a matter of law. "This is the second significant error by the government affecting the constitutional rights of this defendant and, more importantly, the integrity of the criminal justice system in this country," Brinkema said Monday..


    The evidence was in the company he kept. He has been linked to the 19 other who were successful. His shooting off at the mouth prevented him from playing a role. That doesn't erase his intent and the effort he put into realize that intent. Isn't that more or less what they're fixin' to do in Afghanistan to that fella that everyone finds so reprehensible? Not even with your "more or less" qualification is this remotely accurate. He was seeking to kill innocent people on an awesome and horrific scale. Mr. Rahman in Afghanistan is merely acting his conscience by practicing his religious belief. See? It's not "more or less" the same. Not even by a long shot.
    Yeah, you're a generic shrub shill, alright. Right off the rack. Free with every fillup of 3 gallons or more at all participating exxon dealers in the tri-state area. Talk about a lot to work with. THIS JUST IN. We don't execute people for what they THINK about doing in this Country. We execute them for what they actually DO. He's not a head of State like Shrub or his surrogates shooter, rummy, clueless condi, etc. who can push a button, so to speak, and have people rubbed out as it were. On the contrary, he's an idiot. He may be a gung ho idiot, but he's an idiot. Al qaida sent him out for coffee as often as they could because he was worthless to them. He was a liability to the cause. They didn't even know he'd been arrested until after 9/11. That's how important he was to the plot and the organization as a whole. Metaphorically speaking, he was never even going to get into the mail room let alone rise above it. He was a terminal janitor and a lousy one at that no matter how dedicated he was. He goes to jail for life because he keeps shooting his mouth off. He doesn't get offed because guys like you are bored and you wanna see some blood. If you don't like it, that's just too damned bad. The Government screwed the pooch on this. If he hadn't shot his mouth off, he might have walked entirely. That's how incompetent the ashcroft/gonzales justice department has been. That's reality. That's also nobody's fault but their own. THEY BLEW IT! THEIR PROBLEMS ARE ALL IN THEIR DAMNED MIRROR!! DEAL WITH IT AND STOPPED BLAMING EVERYONE ELSE FOR YOUR DAMNED SCREW UPS!!! But I wouldn't hold the Post Master General Responsible Just because they happened to know these people or attend a Christmas Party with them. That would be guilt by association. That's not evidence of a conspiracy or furtherance of a criminal act, but that's just me.

    We don't execute people for what they THINK about doing in this Country.
    Again, we arrested him before he could bring his plan to fruition. If someone is plotting to kill his wife, do we have to wait until the wife is dead in a kitchen before we arrest the husband?
    THEY BLEW IT! THEIR PROBLEMS ARE ALL IN THEIR DAMNED MIRROR!! DEAL WITH IT AND STOPPED BLAMING EVERYONE ELSE FOR YOUR DAMNED SCREW UPS!!!
    I hate to get into a tit-for-tat with you but I've been coaxed:
    Metaphorically speaking, he was never even going to get into the mail room let alone rise above it. He was a terminal janitor and a lousy one at that no matter how dedicated he was.
    Literally speaking, that was a horrible metaphor.
    The Government screwed the pooch on this. If he hadn't shot his mouth off, he might have walked entirely. That's how incompetent the ashcroft/gonzales justice department has been. That's reality. That's also nobody's fault but their own.
    How, exactly, does this amount to governmental incompetence? In fact, I think his arrest was one of the few pre-9/11 victories the FBI can claim. His interrogation (or lack thereof), on the other hand, is another matter entirely. And this is precisely where you become unhinged
    THEY BLEW IT! THEIR PROBLEMS ARE ALL IN THEIR DAMNED MIRROR!! DEAL WITH IT AND STOPPED BLAMING EVERYONE ELSE FOR YOUR DAMNED SCREW UPS!!!
    Where does this come from? I think you might have some latent anger that needs a healthy release. Have you considered racquetball or tennis?
    But I wouldn't hold the Post Master General Responsible Just because they happened to know these people or attend a Christmas Party with them.
    Remember what I said earlier about your other metaphor? This gem makes that slop look almost Shakespearian. Just a quick word of advice: if you are going to offer you opinion, regardless of how irate and irrational it is, if you structure it and put some thought into how you say it, its effect will carried much better. Instead we are forced to wade through some of the most disjointed, incongruous rambling only to struggle to make out your real point. F minus minus. Zero percent.

    Re: Moussaoui Judge to Let Case Go to Jury, Moussa (none / 0) (#14)
    by Peaches on Fri Mar 24, 2006 at 01:54:02 PM EST
    Chase, Charlie is fantastic. Not so much because he makes rational arguments and challenges the right wing participants on this TL (which is a left-wing blog), but, precisely, because he has NO tolerance for it. There is nothing I enjoy more than a Charlie Rant provoking long winded responses that attempt to demonstrate the irrationality of his rant. It's a thing of beauty.

    Peaches: From that perspective, you are absolutely right! I recognize that I'm a "right-leaner" but I wouldn't say I'm right wing. Anyway, I believe I'm moderate and fair enough to throw my two cents in, if only to spur up some discussion from a different angle. Obviously I'm a TL newbie but this crowd was appealing because it seems so much more rational than kos, ThinkProgress, et al. I would like to think that even when folks at TL don't agree, they can respect my opinion and engage in a little repartee. I'm certainly not here to bash the left. Anyway, how dull it must be preaching to the choir all day.

    Re: Moussaoui Judge to Let Case Go to Jury, Moussa (none / 0) (#16)
    by Peaches on Fri Mar 24, 2006 at 02:55:51 PM EST
    Chase, All I got to say is don't sweat it. If you have intelligent points to make then it will make it through and you will be engaged plenty here by posters who wish only for intelligent rational conversation. If you are coming from a right perspective, you might want to be aware of Charlie, though. He is like our house terrier. We appresiate his bark for the warning it gives us. If you have been around here long enough, you will understand. Many of the right wingers here only want to bash the left and the smart-ones on the left have learned to ignore these posters and leave them to Charlie who doesn't mind being an irritant barking and snipping at their ankles waiting for his opportunity to rip their throats out.

    JRT - no I would not have approved of a warrantless search of Moussaoui's laptop. You can read the DOJ's guidelines on this here. He was in custody. His laptop wasn't going anywhere. They could applied for a warrant.

    Re: Moussaoui Judge to Let Case Go to Jury, Moussa (none / 0) (#18)
    by Sailor on Sat Mar 25, 2006 at 11:44:35 AM EST
    What if his laptop contained an atomic bomb and it was set to go off in 12 hours; would they have been justified in torturing him?