Judge Warns Prosecutors in Moussaoui Trial

By MICHAEL J. SNIFFEN

ALEXANDRIA, Va. – 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.

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.

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.

Harry Samit testified the lies sent agents futilely searching London – the home listed on Moussaoui’s passport – for associates he claimed had given him money, but that Moussaoui never mentioned the alias used by Ramzi Binalshibh, an al-Qaida operative, to wire him cash from Germany.

The 37-year-old Frenchman of Moroccan descent did not admit getting money from that operative for almost four years – not until he pleaded guilty last April to conspiring with al-Qaida to fly planes into U.S. buildings.

The jury here will decide whether that guilty plea will put Moussaoui to death or imprison him for life.

Over objections by court-appointed defense lawyer Edward MacMahon, prosecutor Novak asked Samit one by one about Moussaoui’s admissions last April and whether he gave any hint of them in 2001. Each time the answer was no.

What if Moussaoui had admitted in 2001 that he was an al-Qaida member who had pledged obedience to bin Laden?

“I would have asked additional questions about his role in al-Qaida and his relation to Osama bin Laden. It would have opened up a whole world of questions,” replied Samit, a counterterrorism specialist.

“The answers dictate the logical course of the interview,” said Samit, who arrested Moussaoui in Minnesota 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.”

Samit said that during his initial 90-minute interview of Moussaoui, Moussaoui claimed he was taking commercial flight training lessons in Minnesota “for enjoyment and his own personal ego.” Moussaoui claimed the more than $32,000 in cash he brought into the United States was savings from work in an export-import business and from friends and associates.

Agents pressed Moussaoui for the names of the friends and associates who supplied the cash and for a day he supplied only a single name, “Taleal.” When Moussaoui a day later said Taleal was Akhmed Atef, Samit immediately asked bureau agents in London to search for that man because the only foreign address they had for Moussaoui was in London.

Samit immediately became suspicious of Moussaoui when executives of a flight school in suburban Minneapolis reported a foreign student training to fly a Boeing 747-400 despite having almost no pilot experience.

One of the flight school’s instructors testified he urged his bosses to call the FBI after his new student responded angrily to innocent questions about his religion and paid for his training in $100 bills.

Instructor Clarence Prevost told the jury he first assumed Moussaoui was a rich guy “just fulfilling a dream.”

But on the first day of class, when Moussaoui, asked whether he was a Muslim, responded 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.’”

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Associated Press writer Matthew Barakat contributed to this report.