Moussaoui On Trial: Preview

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

Question: Who is Moussaoui and why should we care about him more than all the other so-called Al Qaeda operatives who have been scooped up since September 11, 2001?

Answer: Moussaoui is a foreign-born confessed al Qaeda terror trainee who was arrested on immigration charges in Minnesota in August 2001-- about five weeks before the terror attacks. He was arrested after he raised suspicions while learning how to fly -- he wanted to start with 747s, it seems.

When questioned by the authorities back then, he did not disclose his al Qaeda ties or otherwise share with US officials the group's plans to have terrorists fly planes into buildings. Last year in court, he told his judge that he was part of a second wave of terror pilots who were going to try to bust a Muslim cleric out of federal prison in Colorado.

Question: But if he is a confessed terrorist, why are we having a trial?

Answer: We are having a federal sentencing trial, in Alexandria, Virginia, near the Pentagon, because the government wants to obtain a death sentence so it can execute Moussaoui for the crimes to which he has confessed. Last April, against the advice of his attorneys - with whom he has fought for years - Moussaoui pleaded guilty to conspiring to commit terrorism, aircraft piracy, and murder, among other things.

In order to get a capital sentence, the feds now must establish that Moussaoui's actions - or, more precisely, his inaction - directly caused at least one death on 9-11. And then the feds have to convince jurors that the "aggravating" factors warranting a death sentence outweigh whatever "mitigating" factors exist on behalf of Moussaoui.

Question: So it's a slam dunk, then, right? I mean, the guy is a terrorist, and he was part of the 9-11 plot, and he's the only one left who is either alive or able to be brought to justice.

Answer: The result may end up looking easy for prosecutors: it's hard to imagine jurors having much sympathy for Moussaoui or much patience with the arguments of his lawyers - but this case is a lot more complicated than it appears.

Mostly, that's because even the government itself now concedes that Moussaoui was not the "20th hijacker" of 9-11. In fact, federal prosecutors cannot prove that Moussaoui even knew about the specific plot carried out by Mohammad Atta and his cohorts on that day.

The feds contend instead that since Moussaoui was training like a 9-11 hijacker, since he shared the goals of the group, and since he also intended to hijack a plane at some point, he was fairly part of a larger conspiracy that included among its subparts the specific 9-11 plan. That, they say, is enough to warrant a death sentence.

Question: Wait a minute. You mean, after all this talk by the government about this being the one and only 9-11 trial it really won't be?

Answer: Yes and no. Yes, it's going to be a trial about the terror attacks of September 11, 2001. Federal prosecutors will spend a lot of time reminding jurors of what happened that day, and why, and why they believe Moussaoui played the role they say he did in the biggest crime in American history.

The trial will be intensely emotional, providing survivors and the family members of victims with their only in-court chance to hear under oath testimony about how and why their loved ones died. And we are certainly unlikely to see a higher profile trial in which the events surrounding 9-11 play as central a role-- unless Osama bin Laden is captured alive and brought to court.

But, as defense lawyers will point out, Moussaoui is no Osama bin Laden and the actual perpetrators that day died when the planes they hijacked slammed into the buildings. Think of it this way: the government has the right crime to vindicate - it just has the wrong criminal to prosecute.

Question: Come on. Aren't you going a little soft on Moussaoui and a little rough on the government? How could Moussaoui have trained like a 9-11 terrorist and not know of their plans?

Answer: We don't know for sure that Moussaoui wasn't clued in - he still could be lying. But he says he wasn't part of the 9-11 plot and Khalid Shaikh Mohammed, one of bin Laden's top deputies, reportedly told his interrogators years ago that Moussaoui was going to be part of a second wave of terror pilots.

Meanwhile, some intelligence officials believe that even some of the actual hijackers did not know exactly what would happen to the planes they took over on September 11, 2001. You can bet that Moussaoui's lawyers will focus upon these facts as they try to spare his life. And you can bet that if prosecutors felt they could prove that Moussaoui was in on the actual plot, we'd have heard about it by now.

Question: What else can we expect from the defense?

Answer: A huge emphasis on the government's own suspect "actions" and "inaction" before the attacks. Because the feds must establish that Moussaoui's lies to authorities helped lead to 9-11, the defense will be able to point to all the reasons why they believe that US officials knew more about the actual 9-11 plot than Moussaoui did. The idea is not to compare Moussaoui's culpability with the culpability of our intelligence community-- the defense knows it will lose that fight. The idea is to convince jurors that the government knew so much about the actual plot that nothing Moussaoui could have said or would have said would have made a difference. That's why in many ways the government's pre-9-11 intelligence will be as much on trial as Moussaoui will be.

Question: Is that why this trial holds some peril for the government-- because its intelligence failures pre-9-11 will be showcased before a world audience and specially-designated victims who can watch the proceedings on closed-circuit television?

Answer: That's right. And don't forget that the trial judge, U.S. District Court Judge Leonie M. Brinkema, already has shown that she is willing to make life miserable for prosecutors. Over and over again in pre-trial rulings she sided fairly with Moussaoui, even as the ungrateful lout railed against her and everything else American. Put it this way, I've rarely covered a case where I think the lawyers going to trial are as uncertain about what will actually happen as they are here. Especially for prosecutors, so many unanticipated and unwelcome things are possible.

Question: So with all these risks, and with Moussaoui not being at the core of the 9-11 conspiracy, why did the Bush Administration decide to make an example out of him?

Answer: Because he was there, in custody, and because when he was indicted, just three months after 9-11, federal officials probably believed that he was more involved in the core plot than they now know he was. Because the feds want a show trial; want to bring "justice" to at least one Al Qaeda member regardless of his crimes fit the punishment sought. I wish I knew, really, why the government threw US citizens Jose Padilla and Yaser Hamdi away for a few years as "enemy combatants"-- depriving them of core constitutional rights-- while it allowed Moussaoui, who is not a US citizen, to have most of the benefits that other capital defendants have. I wish one day a high-ranking government official would explain that to me.

Question: Well, I wish you would explain to me this: the government wants to execute Moussaoui for a crime he didn't commit by blaming him for not saying something that might have stopped it?

Answer: You sure can look at it that way. Look, there is no doubt that Moussaoui is a bad guy and that he has committed serious crimes. There also is little doubt that he would have harmed us had he not been captured. For these reasons alone he deserves serious punishment-- like a life sentence without the possibility of early release in that same maximum security prison in Colorado he wanted to bomb his way into. But any candid assessment of this sentencing trial has to acknowledge that Moussaoui is merely a bit player in the cast of 9-11, a guy who didn't even make it to the theatre much less get into the act. The main characters are either dead or still around and living in caves in Pakistan.

Question: So how does it end?

Answer: Ask me in June.
By Andrew Cohen