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Moussaoui: No Verdict Today

By Jeralyn, Section Terror Trials
Posted on Thu Mar 30, 2006 at 02:25:42 PM EST
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The jury did not reach a verdict today in the Zacarias Moussaoui trial. They did ask for a definition of "weapons of mass destruction" and were told it could include "planes, used as missiles."

The verdict form is now available here. (pdf). In order for Moussaoui to be eligible for the death penalty, it requires the jury to find,

(b) the defendant intentionally participated in an act, i.e. lying to federal agents on August 16-17, 2001

© the defendant participated in the act, i.e. lying to federal agents on August 16-17, 2001, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense

d) at least one victim died on September 11, 2001, as a direct result of the defendant's act, i.e. the defendant's lies to federal agents on August 16-17, 2001

This seems to require an affirmative act of lying -- as opposed to concealing information. The jury instructions are not yet online. It will be interesting to see if the word "lying" is defined and if the definition includes or excludes omissions.

The defense had proposed this verdict form:

Do you, the jury, unanimously find that the Government has established beyond a reasonable doubt that the defendant participated in the act, i.e. lying to federal agents on August 16-17, 2001, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense.

The Government had argued (pdf) that "failure to tell the truth" is subsumed within lies.

There can be no mistake as to what our theory has been, and there should be no mistake as to what it is now: the defendant's act -- whether called an act of lying, an act of deception, an act of concealment, or an act of withholding the truth -- caused at least one death on September 11, 2001. By whatever name, it is an act -- an affirmative, calculated, deliberate effort to prevent law enforcement from stopping an ongoing plot. And that act includes, for causation purposes, not only what the defendant did say, but the truths that he purposely concealed.

The defense maintains,

[T]he Government's claim that Defendant's lies directly resulted in the deaths of one or more victims on September 11 . . . is not a claim that the Government could have prevented a death if the Defendant had told the truth.").

It's a Fifth Amendment issue. Once the defendant invoked his right to counsel, he no longer had to tell the Government anything about 9/11. He should only be liable for his lies before he decided to cease talking.

It's also an issue of statutory interpretation. The death penalty statute requires there to be an "act." It never mentions "omissions."

18 U.S.C. § 3591(a)(2)©. The FDPA provides that a defendant is eligible for the death penalty if the jury finds, beyond a reasonable doubt, that the
defendant "intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim died as a direct result of the act[.]"

I think "an act" requires affirmative action, like lying. and cannot be said to encompass failing to take action, like failing to tell the truth.

There's more discussion of this here.

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    Moussaoui: No Verdict Today | 10 comments (10 topical)
    Re: Moussaoui: No Verdict Today (none / 0) (#1)
    by Talkleft Visitor on Thu Mar 30, 2006 at 03:46:21 PM EST
    In truth, so long as the time frame is bracketed, the whole act v. omission thing is pretty much pedantic given the defendant's testimony. Arguing that he is a liar doesn't really get the defense very far on the first two prongs. The defense really has to hang its hat on the "it wouldn't have mattered anyway" theory, although I suppose that the "if he had told the truth" v. "if he had said nothing" alternatives could be different in terms of what would have been sufficient to prevent the attack. There was pretty powerful evidence that the government was incapable of acting in any case.

    Re: Moussaoui: No Verdict Today (none / 0) (#2)
    by Talkleft Visitor on Thu Mar 30, 2006 at 04:00:38 PM EST
    I think the "if he had told the truth" and "if he had said nothing" are the same thing. I'd frame it as if he hadn't said something false vs. if he had told the truth or if he had said nothing.

    Re: Moussaoui: No Verdict Today (none / 0) (#3)
    by mpower1952 on Thu Mar 30, 2006 at 05:14:54 PM EST
    TL- Do you think it's odd that the judge included in the meaning of WMD, airplanes used as missles flying into buildings? Isn't that too big a stretch? I didn't see an actual quote but heard it on tv. Did he give any parameter of size of aircraft or building?

    Re: Moussaoui: No Verdict Today (none / 0) (#4)
    by Talkleft Visitor on Thu Mar 30, 2006 at 07:02:26 PM EST
    Actually, I don't think it's strange, I think it's correct.

    Re: Moussaoui: No Verdict Today (none / 0) (#5)
    by Talkleft Visitor on Thu Mar 30, 2006 at 07:38:57 PM EST
    Actually, I don't think it's strange, I think it's correct.
    I totally agree. In this case, airplanes were used as weapons of mass destruction. TL - Do you think that in testifying he had prior knowledge of the planned attack forecloses his Fifth Amendment claim?

    Re: Moussaoui: No Verdict Today (none / 0) (#6)
    by HK on Fri Mar 31, 2006 at 03:30:49 AM EST
    While I understand the reasoning behind the judge allowing aeroplanes to be classed as weapons of mass destruction, I do think that it is appropriate to question this. The total death toll from the 9/11 attacks was 2986. This is undoubtedly a massive amount of fatalities for one incident. But the death toll in Hiroshima as a result of the atomic bomb dropped in WW2 was (at the most conservative estimate) 140,000. (The total is believed to be much higher than this due to people living for some months with ultimately fatal injuries.) My point here is this: a plane could never cause this enormous number of deaths and so if we describe it as a WMD, how do we describe an atomic bomb in order to make the distinction between the vast discrepancy of fatalities caused? In addition to this, I fear that 'weapons of mass destruction' has become a fashionable phrase which is used for the purpose of making implications rather than as a quantifiable description. Would this phrase have been used about an attack which involved only one plane with less fatalities resulting? It would still be used for the same purpose. Would this phrase have been used if the attack was carried out by a individual - and one who had no links to the Middle East or al-Qaeda? Like I say, I can see where people are coming from with this, but while a plane can be used for the same purpose as a bomb, it has purposes other than destruction and could never be used as such with the same great effect. If we go down this path, we will eventually have to think of another term for true weapons to put across their much bigger impact.

    Re: Moussaoui: No Verdict Today (none / 0) (#7)
    by squeaky on Fri Mar 31, 2006 at 07:36:09 AM EST
    HK- I agree with your point about the fashionability of the term WMD within certain sectors of out political spectrum. The term is a catch phrase by now laden with more connotation than actual literal meaning. One thing to consider though is that it would be appropriate to call a plane a WMD if it was used to crash into a Church during Sunday services.

    Re: Moussaoui: No Verdict Today (none / 0) (#8)
    by Peaches on Fri Mar 31, 2006 at 07:45:03 AM EST
    HK, As I once heard former Iraq Weapons inspector say, paraphrasing, "You want to know what weapons of Mass Destruction are? A marine platoon with almost limitless amounts of ammunition. That to me is a weapon of mass destruction. Weapons of mass destruction should be just what they say they are. Weapons that cause mass destruction."

    Re: Moussaoui: No Verdict Today (none / 0) (#9)
    by Peaches on Fri Mar 31, 2006 at 07:48:15 AM EST
    Former weapons inspector Scott Ritter

    Re: Moussaoui: No Verdict Today (none / 0) (#11)
    by HK on Fri Mar 31, 2006 at 10:22:36 AM EST
    Narius, I agree with you that circumstances of deployment must be taken into account. A plastic bag is a weapon if you hold it over someone's head, but obviously not all plastic bags are weapons. However, I must disagree with you on the issue of chemical weapons. The briefest glance at the information available on Wikipedia will tell you that fatalities from chemical weapons can easily be in the tens of thousands. Such toxins introduced into, say, a the water system of a city can have a massive impact. I do not want to underplay in any way the tragedy of 9/11. It was a heinous attack and did affect many people, both directly and indirectly. However, the amount of people you can get into one place and attack with a plane is not and could never be in the same league as either an atom bombing or an airborne/water system chemical attack. NB The fact that it was more than one plane is to an extent irrelevant. If an army used several thousand arrows in an attack, would an arrow be classed as a weapon of mass destruction?

    Moussaoui: No Verdict Today | 10 comments (10 topical)