Like Jose Padilla, Zacarias Moussaoui is another sad, bad man, only sadder and a lot loopier. He did have ties to al Qaeda but his connection to 9/11 remains unclear. He was in the country to learn to become a pilot, but he wasn’t very good at it and succeeded only in making himself look suspicious. This resulted in his arrest on August 16, 2001 in Minnesota on an immigration violation. Local FBI wanted to search his laptop and apartment but were vetoed by their superiors. This represented a major blown opportunity since evidence from these might have led to members of the 9/11 network through Moussaoui’s personal and financial contacts with them.
His trial was a circus. Much of this was the result of Moussaoui’s own unpredictable behavior, outbursts, and apparent mental instability, but the prosecution and government officials and witnesses added considerably to it. On the one hand, there was a defendant, seemingly oblivious to his legal jeopardy, who was often at war with everyone in the courtroom and frequently undercut his case. On the other, there was a prosecution determined to seek the death penalty for a connection to 9/11 that was largely unproven.
The trial began on January 2, 2002 with Moussaoui refusing to enter a plea. Federal district judge Leonie Brinkema for Eastern Virginia entered a plea of not guilty on his behalf. On April 22, 2002, he fired his attorneys. On June 13, 2002, he began defending himself with defense counsel standing by. In July 2002, he indicated that he wished to plead guilty to 4 of the charges. Judge Brinkema gave him a week to think about it and then withdrew the plea because of her doubts concerning his understanding of what he was doing. Then in a brilliant bit of legal theater Moussaoui asked to call other terrorists in US custody. This occupied the court from October 2002 to March 2005. The prosecution opposed the request. Brinkema took the death sentence off the table in retaliation. She was overturned. The defense took the witness request to the Supreme Court which denied certiorari, and returned the case to Brinkema. In the meantime on November 14, 2003, after various harangues and disruptions by Moussaoui, Brinkema rescinded his right to represent himself. Then on April 22, 2005, Moussaoui dropped another bombshell by pleading guilty to all 6 charges while still denying any connection to 9/11. Despite Moussaoui’s obviously dysfunctional relationship with reality, Brinkema this time accepted his plea.
The trial entered the penalty phase with Moussaoui continuing to act erratically. On February 14, 2006, prosecutors informed Brinkema that 3 Transportation Security Administration (TSA) officials had chosen not to speak with defense lawyers, even though none of them knew they had been asked and one said that he would have been willing to do so. Then on March 13, 2006, the prosecution informed Brinkema of witness tampering by TSA attorney Carla Martin and other improprieties. In emails to TSA officials, Martin acknowledged that the government’s case was weak and coached witnesses on how to punch up their testimony. She made available to two of them transcripts of witnesses who had already testified and she advised another not to talk to defense lawyers. Prosecutors also admitted that 2 witnesses had watched television coverage of the trial because the prosecution had failed to inform them of the judge’s order not to. Finally, one of the prosecutors David Novak had spoken to 2 of the witnesses on the phone at the same time. He stated that it was for scheduling purposes only and no content of the trial was discussed.
Despite the government’s malfeasance and misfeasance, Brinkema allowed the trial to go forward but without the TSA witnesses. This seriously weakened the government’s case (which was by no means that strong to begin with) since its strategy had been to show what the FBI and the TSA might have done to prevent 9/11 if Moussaoui had told investigators what he knew at the time of his arrest (ignoring the FBI’s failure to pursue its investigation after his arrest). In other words, prosecutors were arguing that Moussaoui should be put to death on the basis of a hypothetical half of whose premise had just gone up in smoke and the other half of which depended on the jury overlooking the government’s own inaction. On May 3, 2006, the jury failed to approve the death penalty, and Moussaoui was sentenced to life in prison.
The Moussaoui case represents a series of “might have beens”: What might have happened if the Bush White House had not de-emphasized terrorism pre-9/11, if it had sent out an alert throughout the government after the August 6, 2001 PDB: Bin Laden determined to attack in US, if it had paid attention to CIA Director George Tenet’s warnings, or if it had paid heed to what FBI agents in Minnesota and elsewhere were trying to tell it. What might have happened post-9/11 if Moussaoui’s defense counsel had been allowed to mount an adequate defense without being sabotaged by a disturbed client, a permissive judge, and governmental misconduct. And no, I am not saying that Moussaoui should have been found innocent, only that his trial was start to finish an awful avoidable mess.