As prosecutors rest, Moussaoui still plans to take witness stand

ALEXANDRIA, Va. -- After three rocky weeks, prosecutors wound up on a strong note as they rested their case for executing al-Qaida conspirator Zacarias Moussaoui. But the witness who could prove most valuable for them has yet to take the stand: the defendant himself.

For most of the trial, lawyers for the only man charged in this country for the attacks of Sept. 11, 2001, seemed to be making more points than the government from the prosecution's witnesses. But former FBI agent Aaron Zebley and federal aviation security official Robert Cammaroto finally managed to get across the prosecutors' main points last week -- even though a legal shadow lingers over their testimony.

The once-volatile Moussaoui, who remained quiet through court sessions since the trial began March 6, reaffirmed that he still intends to do what he has been trying to do for three years: tell his story in his own words.

The 37-year-old seized his moment, a recess. The judge and jury always leave first; marshals keep Moussaoui at his separate table until they are gone. At the recess after prosecutors rested, he yelled: "I will testify, Zerkin, whether you want it or not."

Gerald Zerkin is one of the attorneys appointed to defend Moussaoui when U.S. District Judge Leonie Brinkema decided Moussaoui was too abusive to continue representing himself. Moussaoui has refused to cooperate with his team.

It is no secret that defense attorneys do not want Moussaoui on the stand complicating their case.

"His behavior is so erratic it's hard to know what his testimony will mean for his case," said University of Richmond law professor Carl Tobias. "But he has a right to testify."

Moussaoui's consistent position for the past three years is not hard to understand, but it is fraught with legal peril.

He pleaded guilty last April to conspiring with al-Qaida to fly planes into U.S. buildings. He has said consistently he was not part of the Sept. 11 operation but was training to hijack a 747 jetliner and fly it into the White House if the U.S. refused to release a blind, radical Egyptian sheik imprisoned for life for other terrorist plots in New York.

On July 18, 2002, Moussaoui tried to plead guilty to some charges. Brinkema decided Moussaoui did not understand his legal situation and stopped him then, but not before he said:

"I have no participation in Sept. 11, but ... I have certain knowledge about Sept. 11, and I know exactly who done it. I know which group, who participated, when it was decided."

Longtime federal prosecutor E. Lawrence Barcella Jr., now in private practice, said in an interview, "If Moussaoui says that on the stand, he may well rescue victory for the prosecution from the jaws of defeat."

The jury in this sentencing case has to choose between execution or life in prison without a chance for release. To obtain a death penalty, prosecutors must show that an act of Moussaoui's led directly to at least one of the nearly 3,000 deaths when al-Qaida flew four planes into the World Trade Center, the Pentagon and a Pennsylvania field.

That act, according to prosecutors, was lying to FBI agents after he was arrested while taking pilot training in Minnesota on Aug. 16, 2001. But the case they have laid out goes beyond that.

Their most compelling witnesses were Zebley and Cammaroto.

Zebley spelled out how FBI agents could have taken information about a money transfer Moussaoui got by wire from Germany to trace business records and ultimately identify 11 of the 19 Sept. 11 hijackers within weeks.

Cammaroto explained how the Federal Aviation Administration could have tightened airport security to keep those men off airplanes.

Zebley and Cammaroto testified these steps could have been taken if Moussaoui had confessed in August 2001 to the details he provided in his 2005 guilty plea. They were not asked, however, what steps could have been taken if Moussaoui had only kept silent instead of lying.

Defense lawyers say those witnesses' testimony is legally out of bounds because, under the Fifth Amendment, Moussaoui was not required to incriminate himself. If he had not lied, he could have just remained silent, they argue in a motion on which Brinkema has not yet ruled.

But she has warned prosecutors she knows of no case where a death penalty was imposed because of a failure to act, and last week she told the jury it can't decide Moussaoui's case "on speculation. ... Nobody knows what would have happened."

She has told lawyers they will have a chance to argue over this later; she just wants "to get the evidence in now." Perhaps that fight will come over her legal instructions to the jury.

Meantime, law professor Tobias believes "the government's case was not very strong. Occasional witnesses were strong, like the transportation security testimony, but some FBI witnesses were more helpful to the defense."

FBI agent Harry Samit, who arrested Moussaoui, accused his superiors of "criminal negligence" in rejecting 70 entreaties he made during August and early September 2001 to get a search warrant for Moussaoui's computer and start of full criminal investigation. Other federal witnesses detailed mishandling by the CIA, FBI and FAA of tips and intelligence about the hijackers during 2000 and 2001.

Defense lawyers have stressed that no one puts Moussaoui with or in contact with any of the 19 hijackers, who lived and trained together in small groups. They argue the government knew more about Sept. 11 than Moussaoui beforehand and still did not move to stop it, so his lies were not the reason it succeeded.

The last thing they want is for him to tell the jury he knew more about the deadliest terrorist attack in U.S. history.

---

EDITOR'S NOTE -- Michael J. Sniffen has covered legal affairs in Washington for three decades.