Subscribe to Here’s the Deal, our politics newsletter for analysis you won’t find anywhere else.
Thank you. Please check your inbox to confirm.
Leave your feedback
Zacarias Moussaoui pleaded guilty Friday to conspiring with the 9/11 attackers, saying he was trained to fly a plane into the White House in a later attack.
Neil Lewis of the New York Times was at the federal courthouse in Alexandria, Virginia, for today's hearing. He joins now us from the newsroom in Washington.
Neil Lewis, what did Zacarias Moussaoui have to say for himself?
Well, he said he was going to forgo a trial. Moussaoui was arrested more than three years ago and the cases had many ups and down. But he appeared before a federal district court judge in Alexandria and pleaded guilty to the six charges against him, four of which carry the death penalty. What he did though that was surprising he pled guilty to being part of a broad al-Qaida Islamic terrorist conspiracy to fly planes into U.S. buildings. He insisted however, and this is a bit of a surprise, that he had nothing to do with the Sept. 11 terrorist attacks. He said instead he was training to fly a different plane into the White House as part of a different plot on a different day.
Has the government been saying all along that they consider Moussaoui a conspirator of the original attack on Sept. 11?
Yes. And they still say that. The nature of what the conspiracy that Moussaoui was involved in has changed a bit. At one time senior government officials identified Mr. Moussaoui as a person intended to have been the twentieth hijacker, that is the fifth person on the plane that crashed into Pennsylvania. He was arrested in August on immigration violations and couldn't participate in a plot they said. More recently the government has said that he was assigned to fly a fifth plane on Sept. 11.
Now his version today is different and similar in some ways. He was assigned to fly a different plane he said on a different day into the White House as part of a plot to free the blind sheikh who is in prison for life in New York for his participation in the first bombings of the World Trade Center.
For a long time Moussaoui has maintained that people in U.S. custody would be able to help him in his defense. Is it clear yet whether he'll ever be able to talk to them?
It's not at all clear. But I would say if you allow me, it's certainly clear that the issue is just as alive today after his plea as it was before. He tried to have witnesses testify on his behalf saying that he wasn't part of the 9/11 plot. The U.S. said these people are in our custody, they're national security issues, we cannot do that. And this has gone up and down in the courts. And this is at the heart of the issue of whether terrorist suspects can be tried in U.S. civilian courts.
Now because he pled guilty today he will face a separate trial on whether he should be put to death or not. And that trial is almost a replica of what the criminal trial would have been, from the beginning; there's no jury yet impaneled because he pled guilty. But there will be a jury that will have to be impaneled and listen to the whole case to decide whether he can be put to death.
But will the penalty phase in addition to deciding whether or not he gets the capital sentence also be the place where it's hashed out whether or not those other al-Qaida suspects can be cross examined?
I assume it will be. We don't know that but I assume it will be because he will again insist as he has that he be able to call these witnesses to demonstrate his innocence of the Sept. 11 plot and he will present them as mitigating evidence. Now Moussaoui spoke to a federal judge this week, on Wednesday, and that's when he first told her he wished to plead guilty. At the same time he apparently told the federal judge, the one who accepted his plea today, Leoni Brinkema, that he also would accept the death penalty. In court today he said he changed on that. He said he will fight the death penalty every inch of the way. And in fact he suggested he will raise these issues of mitigation and what these captured al-Qaida people can say in his defense.
Neil, before we go, did Judge Brinkema herself make any reference in court today to the fact that Moussaoui's lawyers tried to stop him from pleading guilty today?
She did. But she did it in a way scolding them for having caused press reports that they had questioned his competence and tried to block his plea. Interesting, Moussaoui dressed in his green prison jump suit was — had one lawyer next to him, the local Alexandra lawyer whom he trusts, but his three main defense lawyers whom he distrusts and has called awful names were sitting in the gallery.
Neil Lewis of the New York Times, thanks for being with us.
For more on Zacarias Moussaoui's legal roller coaster we turn to Juliette Kayyem of Harvard University's Kennedy School. She was on the National Committee on Terrorism and teaches courses on law and national security and by Andrew McBride; he was assistant U.S. Attorney for the Eastern District of Virginia where he tried federal death penalty cases. He's now in private practice.
Well, Andrew McBride, you heard Neil Lewis sketch out a scenario where in effect Zacarias Moussaoui's plea hasn't really changed that much, what we're facing is pretty much like a trial even though he's pleaded guilty. Is that basically the way it works?
Well, I think Neil had it say 80 percent right. There will be a penalty phase trial, Judge Brinkema will impanel a jury of 12. But the issue will not be guilt or innocence; the issue will be the choice between life without parole or the death penalty.
And I do think that the statement of facts that Moussaoui agreed to today gives the government a running start in that trial. Moussaoui admitted to a number of things we never heard before; for instance, that he had direct contact with bin Laden. That he discussed flying a plane into the White House with bin Laden, that that was his dream as bin Laden put it; that he was not a bit player, that in fact he ran a safe house in Afghanistan. And the key line in the statement of fact is that he lied to the FBI agents on Aug. 17, when he was interviewed in a way that allowed his fellow co-conspirators to carry out the plot.
So I think we are looking at a jury trial on the issue of death penalty. But I do think that the government's theory of the case that he was part of the general plan that became 9/11 has been vindicated by Mr. Moussaoui's plea.
Juliette Kayyem, part of the general plan but Moussaoui separated himself specifically from the Sept. 11 attacks. Where does that leave things in your view?
Exactly. So did the attorney general in his press conference. When you read the statement of facts, what it appears that everyone agrees to that there was a conspiracy of preparation; that Moussaoui did a lot of things like the 9/11 hijackers; but that ultimately he was not part of the 9/11 plan, he doesn't admit to knowing about the 9/11 plan and he doesn't admit to any contact with the 9/11 hijackers.
So if you define conspiracy broad enough to sort of say, al-Qaida attempts with aircraft against the United States, a second wave as the 9/11 Commission suggested that there was going to be a second wave — then Zacarias Moussaoui statement of facts shows that he was part of that conspiracy. But, you know, the government has walked away from the 20th hijacker, Zacarias Moussaoui didn't agree to it today, and so it looks like he was sort of part of this planning at large but that he probably had no contact with the 9/11 guys or that specific planning.
Well, Andrew McBride, does that mean the federal government would have to put on a case to attach Moussaoui to the murderous conspiracy?
Well, I think that the key point there – and I agree with Janet in one sense, but we have to remember that the way al-Qaida operates is kind of like a pick-up football game. They train a lot of people to do something and then on a certain day there's a call that says, the game's at noon and your job is X.
So the idea that 9/11 was firmly assessed when Zacarias Moussaoui was arrested on Aug. 17, I think is frankly inaccurate. In my opinion the plot was probably moved up when Moussaoui was arrested. It's possible he could have been part of a fifth plane in an operation in October or he could have been part of a second wave. As Janet suggests under the law of conspiracy that doesn't really matter.
The key point is the government will argue on the death penalty phase that lying to those FBI agents on Aug. 17 in that interview, intentionally telling them he took the flight lessons for fun, and that he was essentially a tourist and he knew no other terrorists was what allowed the others to carry out the plot and therefore, Moussaoui is morally responsible for all 2,860 deaths on 9/11.
But, Juliette Kayyem, would be it be unusual given the history of the federal death penalty in the face it's used now for someone who isn't a direct participant in a crime to have it carried out on?
It would not be unheard of. But it would be more unusual than not in the sense that he's not alleging that he was responsible for any American death. And that's what's so strange about these cases… strange in the sense that there really can't be any consistencies in these terrorism cases. Look at Richard Reed, right – there he is on a plane ready to blow it up.
And he gets life because he's willing to plead and people are testifying against him. He gets life; he's sitting in a courthouse in Boston. And now Moussaoui, whose hasn't admitted to any of that is going through a death penalty phase either with the judge or jury and he could get the death penalty for no death — it's not unheard of. But I would say it's very unlikely.
Also I mean there's so many questions still left unanswered right about — his exact relationship with the 9/11 hijackers. What are the detainees saying about him because there was a lot of debate that the detainees, the high level detainees like Khalid Sheikh Muhammad or whoever else were saying, Moussaoui was too crazy to be part of any serious conspiracy, so all of those questions are still going to have to be fought out in legal proceedings. This is not over by any stretch of the imagination.
Finally, I mean, the one thing that sort of sad part of the story on all levels is, there's going to probably be no 9/11 trial. There's no one left, right. Anyone who may have had to do with the 9/11 case is being held in abroad, they will go through military tribunals. Who knows what will happen. But this was it. And so, you know, a lot of family members were sort of gearing up for this. The government certainly was. And so this is – while a victory for the government it's also got to be a bit of disappointment, too.
How do you respond to that Andrew McBride?
Well on the last point first, the families and the victims will be allowed to testify some of them anyway at the penalty phase. It is legitimate evidence for the United States to bring in some of the effect of the crime. As to the argument that Zacarias Moussaoui didn't cause any deaths I think the statement of facts suggests that the lie that Moussaoui told allowed his brothers to carry out the plot. In the same way that if I were part of a murder conspiracy and the murder is going on and I tell the police, oh, no, the murder is two blocks down. Or I block their ability to stop the murder. I think that is a fair argument that Moussaoui is responsible for every one of those deaths.
As a federal prosecutor, I can tell you that any number of defendants have been convicted where they have not pulled the trigger. Where they — for instance — a drug kingpin orders murders, they can be convicted even though they were no where near the scene at the time. So I think I agree with Janet it will be a hotly contested case. But I think it's one that the government has a strong head start on with the statement of facts that Moussaoui has acknowledged today are accurate.
And quickly, how important in your view is it that there is still a struggle between various levels of the federal courts over whether or not evidence from other al-Qaida members is admissible in this trial?
Well, the 4th Circuit I think came to a reasonable conclusion, and I think that will be applied by Judge Brinkema at this penalty phase trial, where redacted versions of the statements made by some of these individuals during CIA debrief will be allowed to be presented to the jury and some of those, Janet is right, sound exculpatory like we can't trust this guy or we never thought he would go through with it. And if he intends to fight the death penalty, those would be very helpful to him. He will not as the law now stands be allowed to call those individuals as live witnesses at this trial.
Juliette Kayyem, you wanted to respond?
Yeah. That's exactly right. I just wanted to respond one thing about the lie, the statement of facts. What the statement of fact says, however, is that he did lie to federal investigators in the sense that he said that he was learning for himself. But we don't know if Moussaoui actually knew and he doesn't admit to it about the 9/11 attack itself. I agree with the argument I think it comes down to the lie. What did he know and what did he fail to tell the prosecutors. And I tell you truth from the statement of facts and from the attorney general's press conference, no one I think is any closer to the truth in that regard than they were before today.
And what about the 9/11 Commission report that concludes that Moussaoui like one part of the government already made up its mind.
I think, they were much more conclusive than the attorney general was today in the sense that he was either such a part of the 9/11 conspiracy that key have been called it is 20th hijacker. Or in the debriefings of Sheikh Muhammad or whoever else he was part of the second wave.
They came to their own conclusions. The 9/11 Commission report did not have direct access to the detainees in a lot of cases. So there's always a bit of question about their assessment of Moussaoui. What's most important is that the 9/11 Commission report of Moussaoui of course is before Sept. 11.
I think everyone agrees probably everyone at this table will agree that the fumbling by the FBI in terms of — and the Department of Justice in terms of they had him, why not get a foreign intelligence wire tap, all of those questions that sort of got raised and questioned at that time, that those were just a big mistake.
That hopefully that new laws will help resolve them but that that was a big mistake at the beginning — who knows what would have unfolded if Zacarias Moussaoui's presence and his alleged conspiracy had been known at the time.
Juliette Kayyem, Andrew McBride, thank you both.
Support Provided By:
Additional Support Provided By: