The judge in the death-penalty trial of confessed al-Qaida conspirator Zacarias Moussaoui warned prosecutors Thursday that they were moving their case into shaky legal territory.
“I must warn the government it is treading on delicate legal ground here,” U.S. District Judge Leonie Brinkema said at the conclusion of the day’s testimony, after the jury had left the courtroom. “I don’t know of any case where a failure to act is sufficient for the death penalty as a matter of law.”
The key issue in Moussaoui’s sentencing trial has been his failure to disclose his terrorist ties to federal agents when he was arrested in August 2001 on immigration violations. He is the only person ever charged in this country in connection with al-Qaida’s attacks on Sept. 11, 2001, on the World Trade Center and the Pentagon.
Both sides agree Moussaoui lied to the FBI, but they differ on what Moussaoui was legally obliged to do given the Fifth Amendment’s guarantee against self-incrimination. Prosecutors argue that once Moussaoui agreed to talk to federal agents, he was required to tell the truth — to confess his ties to al-Qaida and his plans to fly an airplane into the White House.
The defense argues Moussaoui was not required to confess.
Obligation to disclose at issue
The issue is crucial because, to obtain the death penalty, prosecutors must prove that federal agents would have prevented at least one death on Sept. 11 if Moussaoui had not lied. Their case would be much easier if that means Moussaoui also was obligated to disclose his al-Qaida membership and terrorist training.
Brinkema made her comments as she rejected a defense motion for a mistrial. Moussaoui’s lawyers were angry because they believed a question from prosecutor David Novak implied to the jury that Moussaoui had an obligation to speak to FBI agents even after Moussaoui had invoked his right to a lawyer two days into questioning by the FBI. Agents immediately stopped questioning him at that point.
Brinkema said she did not feel a mistrial was warranted because she struck Novak’s question from the record as soon as he asked it.
‘Wild goose chases’
The issue developed as the FBI agent who arrested Moussaoui testified he suspected the student pilot from France was a terrorist, but that Moussaoui’s lies sent agents on “wild goose chases” away from his links to al-Qaida and Osama bin Laden.
“The answers dictate the logical course of the interview,” said FBI agent Harry Samit, who arrested Moussaoui on Aug. 16, 2001, for immigration violations. “You can’t ask logical follow-up questions if he provides misleading answers. It takes you down all sorts of alleys — wild goose chases, essentially.”
Moussaoui’s statements to agents are key to his sentencing trial because prosecutors are seeking to prove that his lies prevented agents from foiling al-Qaida’s attack on the United States on Sept. 11, 2001.
Samit said that during his initial 90-minute interview of Moussaoui, he claimed he was taking commercial flight training lessons for personal enjoyment and that the more than $32,000 in cash he brought into the United States was from a family business venture.
Agent suspicious from the start
Samit said he was very suspicious of Moussaoui from the outset because of his efforts to seek flight training on a Boeing 747-400 despite almost no pilot experience and that he was worried about possible hijacking plots.
Also Thursday, a flight-school instructor testified he urged his bosses to call the FBI in August 2001 after Moussaoui, his new student, responded angrily to innocent questions about his religion and paid for his training in $100 bills.
The instructor at the Minnesota flight school, Clarence Prevost, told Moussaoui’s death-penalty trial it was strange that his student was seeking training on a complex commercial jetliner with hardly any pilot experience, but he assumed Moussaoui was a rich guy who was “just fulfilling a dream.”
‘Should we be doing this?’
But on the first day of classes, when Moussaoui responded to a question about his religion with a terse “I am nothing,” Prevost became suspicious.
“I said, ‘Should we be doing this?”’ Prevost told the court. “’We don’t know anything about this guy and we’re teaching him to throw the switches on a (Boeing) 747.”’
He said he raised his concern the next morning with a school official and was told not to worry. Prevost said he responded, “We’ll care when there’s a hijacking.”
Prevost said he became even more concerned after learning Moussaoui paid $6,800 for his training in $100 bills. Eventually, the school agreed to call the FBI and Moussaoui was arrested two days later, Aug. 16, 2001, on immigration violations.
Despite Prevost’s concerns, he said he found Moussaoui to be genial and intelligent. He believed Moussaoui could have overcome his lack of experience and learned the basics of flying a jet in relatively short order.
Prosecutors presented testimony Thursday from Prevost and another flight instructor as they sought to build their case that Moussaoui was a credible terrorist threat, not the hopeless malcontent portrayed by his lawyers.
Oklahoma instructor Shohaib Kassam said he flew more than 50 hours with Moussaoui and believed he could have obtained his private pilot’s license with more practice, although he said he was a decidedly below-average student.
Dreams of destruction
According to earlier testimony, Moussaoui dreamed in his sleep about piloting a plane and crashing it into the White House, and told his supreme commander, Osama bin Laden, all about it.
That dream has taken on a significant role in Moussaoui’s death-penalty trial. Prosecutors say Moussaoui took flight training to try to make his dream come true. The defense argues those thoughts were the fanciful musings of a deranged mind and maintained he was a disaster as a flight-school student in Oklahoma.
If Moussaoui was capable of attaining his license eventually, he was apparently no standout. Despite his more than 50 hours in the air, he was never allowed to fly solo, Kassam said, even though student pilots can normally do so after 10 to 15 hours of training.
Kassam said Moussaoui acted normally and occasionally talked about Islam but did not appear to be a radical. Born into the Muslim faith in Pakistan, the instructor said Moussaoui occasionally encouraged him to attend mosque and pray regularly but did not proselytize aggressively.
An Islamic radical testified Wednesday that Moussaoui told him about the dream during a visit Moussaoui made to Malaysia in 2000. The radical, a top official in an al-Qaida affiliate group called Jemaah Islamiyah, also said during a November 2002 videotape deposition that was played Wednesday that Moussaoui said he had shared his dream with bin Laden.