Sentencing Trial for Moussaoui Resumes After Delay

RAY SUAREZ:

The sentencing trial of Zacarias Moussaoui, the only person charged in the United States in the 9/11 attacks, resumed today after a one-week delay. The presiding judge had stopped the trial to investigate charges of misconduct by a government lawyer assisting prosecutors.

Joining us now with the latest developments is Laura Sullivan, who's covering the trial for NPR, National Public Radio.

Laura, welcome.

LAURA SULLIVAN, Journalist, National Public Radio:

Thanks.

RAY SUAREZ:

Today, the FBI agent who arrested Zacarias Moussaoui was on the stand, but it sounds like agent Harry Samit was the one who was on trial.

LAURA SULLIVAN:

Well, at first it seemed like Agent Samit was really going to help the prosecution, because he initially got up there and said, if they had had all the information they needed from Moussaoui, then he wouldn't have lied to them, and they could have gotten a search warrant, and they would have easily unfoiled the 9/11 plot.

But what we heard today was time after time — and 70 pages of documents — that Agent Samit e-mailed, he sent out to his bosses saying this man is a terrorist, we need to stop this man, he's going to fly a plane and then hijack one, he's been training at camps in Afghanistan. And nobody was listening to him. So, in fact, it looks like Agent Samit is actually really helping the defense right now.

RAY SUAREZ:

Because this, what, allows the defense to say, even if Moussaoui had told us everything he knows, it wouldn't have made any difference?

LAURA SULLIVAN:

The defense is trying to say that the FBI was so incompetent before the 9/11 attacks that, even if it had all the information it needed about 9/11, that it would never have been able to foil the plot.

What they're using Agent Samit to do is to say: Look, this man went to his bosses, tried time and time again to get a search warrant, and was thwarted. In fact, he actually acknowledged on the stand that he felt that he had been obstructed by his bosses and that they had been criminally negligent in not listening to him and allowing the plot to go forward.

RAY SUAREZ:

Well, this was defense cross-examination. On straight testimony as a prosecution witness, did Samit tell a story that helped bolster the prosecution's theory that it was Moussaoui's failure to tell them what he knew that led to the 9/11 attacks?

LAURA SULLIVAN:

He was very straightforward. He said that they were simply missing the key link, which was that Moussaoui was part of a plot to crash a plane into a building, and that, if they had used that piece of information linking him to an international terrorist group, that they could have gotten a search warrant, and they could have searched his computers and his notebooks, and then they would have found a link to a financial document that linked him to the 9/11 hijackers.

It's a little bit tenuous, but that's the story the prosecution is going with.

RAY SUAREZ:

So the idea is that, if Moussaoui had given them a little bit more than he did before shutting up and getting a lawyer, they would have been able to crack this case?

LAURA SULLIVAN:

Exactly, that all they needed was access to his computer. And they could have gotten access to his computer if Moussaoui hadn't lied, because they needed to prove that he was an agent of a foreign power or that he was doing something criminal.

And the prosecution says that they were simply unable to have ever come across that information without Moussaoui telling them so.

RAY SUAREZ:

Now last week, Judge Leonie Brinkema was warning the prosecution that she was considering pulling the death penalty off the table; where does that stand?

LAURA SULLIVAN:

She resurrected the case. The case was teetering on the brink of collapse, as of Thursday. She had yanked all the aviation testimony out of the case, and the prosecution needed that, because they want to show that, if Moussaoui hadn't lied, the FBI would have launched into action and so would the FAA.

They would have shut down the airports, tighter security, get the knives off the planes. There would have been no 9/11.

Brinkema yanks all the aviation security. So now the prosecution has to say: OK, we're going to stop the 9/11 attacks with just the FBI, and that's very difficult to do, because we've all seen the 9/11 Commission and a lot of failures that the FBI had.

So, on Friday, she reversed herself a little bit and said: You can bring back some of that aviation security testimony, but no witnesses who have been coached. I don't want to see anybody that's been contaminated by media reports, and it's going to be very narrow in what the scope of the questioning.

RAY SUAREZ:

Now, when the judge filed that ruling, didn't the prosecution respond that it was going to be very hard for them to find witnesses who weren't tainted in that way?

LAURA SULLIVAN:

Well, at first they said it was going to be very difficult to find those witnesses. When it looked like they were about to lose them entirely, they said: Well, OK, wait; we can find somebody. We can find somebody to replace the tainted witnesses.

The defense countered that there's no rock under which such a witness can be found. However, today the prosecution filed a motion saying that they, in fact, had come up with some witnesses, so it will be interesting to see who they are.

RAY SUAREZ:

In these proceedings, has the judge set a very high bar for the death penalty? Because here we're being asked, as the people of the United States, to send a man to the death chamber for not saying something or, you know, someone who wasn't directly involved in the commission of a mass murder.

LAURA SULLIVAN:

Yes, even the judge has said that the prosecution has a tough road to hoe. She said there has never been a death penalty case where somebody will be executed for what they did not say. And it is, it's very unusual. It is.

RAY SUAREZ:

Now let's go back to Carla Martin, from whom a lot of this story stems, because she's been accused of coaching the witnesses. Is she in any kind of jeopardy at the moment? Has her part in this whole thing been sorted out?

LAURA SULLIVAN:

Absolutely. She's facing, you know, criminal charges for lying to the prosecution. She could face civil contempt charges in court. She might have problems with her own license to practice law.

And she's probably, from what I understand from some of the people I've talked to, going to face an internal investigation at her own workplace, the Transportation Security Administration, which is run by the Department of Homeland Security, which will look into the situation.

RAY SUAREZ:

Now, it's been reported widely that she, in contravention of the judge's direct orders in the case, coached witnesses, but is it clear that she was a witness to those instructions and was fully briefed on what she was allowed and not allowed to do?

LAURA SULLIVAN:

Well, her attorney says that she simply did not know that that was the instruction, that she wasn't in court the day that the instruction came out, and that, had she known, she never would have done it. So, in her mind, she wasn't aware of the instruction.

RAY SUAREZ:

And just to clarify her role, she's not really on the prosecution team, is she?

LAURA SULLIVAN:

She's not on the prosecution team, but she's working with the prosecution. She's gathering documents for them. She's assembling witnesses. She's, you know, getting them all together.

When the prosecution says, "We need a document that says this," she says, "OK, I'm going to find the person that can get it for you." She sat in on a lot of the secret intelligence hearings. She sat in on a lot of the court hearings working with the prosecution.

So it's a little bit nebulous, but she certainly wasn't working for the defense.

RAY SUAREZ:

Well, will the Carla Martin matter now be taken care of in this same proceeding or has this been set aside to be adjudicated at another time?

LAURA SULLIVAN:

Carla Martin's own fortunes have been set aside, but the defense would like to see her on the stand, because they say that there's no way to know whether or not the new prosecution witnesses are tainted until they talk to Carla Martin. So far, Carla Martin's attorney said she will not be testifying; that could change.

RAY SUAREZ:

Laura Sullivan, thanks a lot for joining us.

LAURA SULLIVAN:

Thanks very much.