Sounding more like Inspector Jacques Clouseau than Ayman al Zawahiri, defendant Moussaoui appeared on tape pretty much like any other bright lay person navigating the shoals of the law. While prosecutors were presenting the taped testimony of Faiz bin Abu Bakar Bafana, an Islamic jihadist brought into this case to link Moussoui to terror plans, the defendant back in 2002 raised several worthwhile and timely objections, many of which were sustained by U.S. District Judge Leonie M. Brinkema. And, on several occasions, like a good defense attorney, he rightly chose not to object to certain legitimate questions asked of Bafana by government lawyers.
Then, when he got his chance to ask questions of the witness, Moussaoui was able consistently to raise questions about the credibility, reliability and motives of a man the feds chose to be the first non-law enforcement witness to tell jurors about how terrorists operated before the Twin Towers fell. Maybe a real attorney would have been smoother, and certainly Moussaoui wasted some time by not understanding all the evidentiary rules that govern depositions, but neither of those faults overshadowed the fact that Moussaoui came across Wednesday — for almost the whole day — as a personable if overwhelmed guy trying to defend himself against the might of the entire government.
That is not at all the image the government wants jurors to have about a confessed al Qaeda operative they say could have stopped 9/11 by just telling the truth when arrested on immigration charges in August 2001. It's impossible, of course, to tell how Moussaoui's role as attorney on the videotape played to jurors, who watched it intensely and took notes. But it is not insignificant that Moussaoui's main presence so far in this trial has been as a lawyer and not as a capital defendant. Before Wednesday, when he took center stage on video, we already had passed long stretches in court in which Moussaoui's name had not even been mentioned; indeed, where he had seemed almost like an afterthought to the main 9/11 plot. That is another perception that cannot help the feds as they open their case.
And now on to the substance. In a low, eerie voice on a grainy and stilted videotape frequently interrupted by technical problems, Bafana told jurors that he was part of an Asia terror cell that targeted American interests overseas. At one point, Bafana said, he was approached by a man known to him as "John" who described the dream of one day flying a plane into the White House. "John," Bafana later testified, was Moussaoui. This information is important because it links the defendant to the same sort of plan carried out by the actual 9/11 hijackers. And that is important in this case because the feds have to establish that Moussaoui was involved enough in the 9/11 plot to have been able to foil it had he been honest with authorities upon his arrest.
It was a striking scene then, sitting in a federal courtroom in Alexandria, Va., and listening (and seeing) one terrorist question another terrorist under the Federal Rules of Criminal Procedure. Bafana says he cooperated with the authorities because he did not agree with the slaughter of innocent "non-combatants" on 9/11. Moussaoui says that Bafana fingered him because U.S. and Singaporean officials promised him a sweetheart deal in exchange for his testimony. And both men, during the questioning session with one another, seemed to appreciate the irony of their situation. At one point, in fact, they quarreled over the meaning of the concept of a "fatwah," a declaration by an Islamic leader. And at times they talked to each other briefly in Arabic, on the tape, before prosecutors objected and the judge ordered them to stop.
Moussaoui last year acknowledged this "dream" story in the statement of facts he signed when he pleaded guilty to the capital charges against him. His plans to fly into the White House, he says, were not part of the 9/11 plot and, in any event, he was training to fly a plane into a prison in Colorado to free an Islamic cleric imprisoned there as a result of the first World Trade Center attack. In other words, nothing Bafana said constitutes an irreplaceable part of the government's case. Many more witnesses are scheduled to tell jurors that Moussaoui trained as a terrorist, believed in the goals of al Qaeda, and came to America with really bad intent. These are not the facts that ultimately are going to determine whether Moussoaui lives or dies.
What is irreplaceable, however, is the early impression jurors got Wednesday from watching Moussaoui plod his way through a deposition. He came off as human, with a personality, and there was even laughter in the courtroom at times. That doesn't tell us much about how this case will end. But it does tell us a little more about how this case has begun.
By Andrew Cohen