For 9/11 Lies, Must He Die?

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

Put another way, the Sept. 11 trial of Zacarias Moussaoui - the most important capital case of its time, one that's been surreal and ironic from the start - reached new heights (or depths, depending upon your point of view) of the absurd Wednesday afternoon here in federal court in Alexandria, Virginia.

In a trial in which they seek the death penalty against a man solely for lying, federal prosecutors have asked jurors to believe that Zacarias Moussaoui was telling the truth when he said Monday that he was a key component of the plot for the Sept. 11, 2001, terror attacks.

Defense attorneys, meanwhile, told those same jurors that their client, whose life they have doggedly fought to spare, is a "homicidal liar" who is still scheming and plotting with malice against America and all it stands for, including the very system of justice which has brought us all to this time and place.

For long stretches during closing arguments, therefore, it was difficult to tell for sure which attorneys were arguing for which side. The feds, who must establish as a matter of law that Moussaoui lied to authorities when he was arrested in August 2001, now are relying heavily upon his candor as a surprise witness to prove that he is eligible for the death penalty in this case.

The defense, which told jurors all along that Moussaoui is - as defense attorney Edward MacMahon put it Wednesday, a "hanger-on" - is now asking jurors to go tough on him and not give him the satisfaction he seeks from dying as a martyr.

Jurors got their instructions from the judge late Wednesday afternoon. They also should have gotten some Ritalin - so complex are the bank shots, crosscurrents and psychological eddies being offered to them by the lawyers.

Moussaoui, in his own pathetic way, succeeded in tying up the case on appeal for more than four years and now - in just a few weeks on trial - he has proven himself capable of twisting around the lawyers responsible for his fate. It's no wonder that MacMahon, the defense attorney, called the happy but inept warrior "manipulative, and obviously so."

Prosecutor David Raskin started the afternoon's sermons by emphasizing his best evidence — really his only good evidence - the creepy defendant himself, and the jaw-dropping statements that Moussaoui made to jurors earlier in the week.

"Zacarias Moussaoui came to this country to kill as many Americans as he could," Raskin told the jury, adding that "he killed people by lying and concealing" the Sept. 11 plot. Those people would be "alive today," said Raskin, if Moussaoui "had told the truth" when he was arrested in Minnesota on immigration charges on August 16, 2001.

We proved to you, Raskin told the jury, that Moussaoui "lied with lethal intent." But here is where the prosecution seemed to travel to Wonderland.

If Moussaoui so gleefully lied way back when, why should anyone believe he is telling the truth now? If, as Raskin pointed out, al Qaeda training manuals teach wannabe terrorists how to lie to achieve their goals, why should anyone believe that Moussaoui has thrown out the book? Yet that is precisely what Raskin asked jurors to believe when he emphasized the importance of Moussaoui's in-court admissions.

"He is not making this up," Raskin told jurors, just moments after stating that Moussaoui is a master at making "false statements designed to deceive." Trust his allegiance to al Qaeda and the terror plot, he told the panel, even as he reminded them that "al Qaeda teaches people to lie."

Raskin's argument at this point reminded me of an old line that lawyers dream of using but rarely do: 'Were you lying then, or are you lying now?' In a capital case, in which proof beyond a reasonable doubt is the name of the game, can the government win once someone is forced to ask that question of its star witness?

Moussaoui's lies, or his truths, are not in themselves enough to make him eligible for the death penalty. The government must also have proved that people died on Sept. 11 as a result of those lies, and in order to make that case it must have established that the feds would have foiled the plot - if only Moussaoui had been candid when federal agents were querying him about his goal of learning to fly jumbo jets despite being unable to find his way around an airfield.

This is the point that drew the most attention during the course of the trial, and it is the point that brings into play all the incompetence our government displayed in the days before Sept. 11 - when we all cared about was who killed Chandra Levy.

On this point, prosecutors could only say, tepidly, that had Moussaoui told the truth when arrested, "the government would have that valuable information and would have used it to prevent the attacks or at least part of the attacks."

In Raskin's view, it is "a no-brainer, ladies and gentlemen," that the feds would have tracked down at least three of the four pilot hijackers had Moussaoui only given them a few more clues.

When Moussaoui was arrested, Raskin argued, the government needed, in order to foil the plot, only "specific intelligence about the catastrophe that was about to occur" - specific intelligence Raskin said Moussaoui had, but did not share. Moussaoui instead "chose al Qaeda and Osama bin Laden, and as a result 2,971 people are dead," said Raskin, his voice rising.

When it was MacMahon's turn, the defense attorney immediately attacked the credibility of his own client, who reportedly spent more time on the witness stand (three hours) than he had conversing with his attorneys over four years of representation.

Moussaoui was "never slated, other than in his dreams" to be a part of the Sept. 11 plot, MacMahon quickly told jurors, and the government cannot prove the hypothetical question of what might have happened in advance of Sept. 11 had Moussaoui merely come clean. "He's told so many stories in the past, that he's simply not worthy of belief, MacMahon said. He's a "grafter," the attorney added, and even al Qaeda was scammed by his tricks.

Of his client, MacMahon had plenty more to say. Moussaoui always thinks he is "more important and more involved" than he really is, the defense attorney said, and he is trying to "write a role for himself in history" while at the same time trying, with his outbursts, to "trigger bias and prejudice" among jurors.

In that, said MacMahon, as in everything else in Moussaoui's life, "he will fail." I have heard many defense attorneys describe their clients in less-than-cheery terms. I don't think I have ever before heard an attorney call their client a pathetic loser, especially in a capital case where defense attorneys usually talk about the high value of every human life.

Of the government's claim that all would have been rosy on Sept. 11 had Moussaoui been honest, MacMahon ridiculed the notion that the government could have connected the dots.

To argue this point, MacMahon cited the testimony of current and former high-ranking government officials like Condoleeza Rice and Richard Clarke, whose testimony appeared at the trial in the form of videotaped snippets from the Sept. 11 Commission hearings.

Rice, who was National Security Advisor on Sept. 11, told the panel under oath that the failure to foil the terror plot was "a structural" one that did not depend upon any single bit of evidence. Clarke - the counterterrorism chief, and the most candid of officials after 9/11 - told the Commission (and therefore jurors) that it is impossible to go back and figure out what might have happened before Sept. 11, because it's simply too "speculative."

MacMahon then asked jurors to be better than Moussaoui believes they can be: to send him and his terror buddies a message that their bitter and unfounded prejudices against Americans are just that.

"You are not the hateful, vengeful enemies that Mr. Moussaoui thinks you are," MacMahon told the panel, challenging them not to lower themselves to his client's base level. "There is no evidence," said MacMahon, that "anything Moussaoui ever did or said caused death" on Sept. 11.

So there you have it. The government that Moussaoui hates so much wants jurors to embrace his testimony — and he ends up being the prosecution's star witness at his own trial. Meanwhile, the lawyers trying to save his life call him a failure at everything in life except for lying, and ask jurors to believe a half dozen other terrorists who say Moussaoui was the only one of the deadly gang who couldn't shoot straight.

At the center of it all is a confessed al Qaeda operative, who couldn't figure out a way to involve himself in a terror attack, but who instead finds himself at the mercy of his own, self-proclaimed worst enemies.

If I had not seen and heard the closing arguments with my own eyes and ears, I would never have believed it.
By Andrew Cohen