Over Before It Starts

CBSNews.com Legal Analyst Andrew Cohen analyzes the indictment of Zacarias Moussaoui and takes a look at the trial that he is to face.



It's probably over even as it starts. To paraphrase the words of former Colorado Senator Gary Hart, speaking just days after the September 11 terror attacks, we'll have a trial and then we'll hang Zacarias Moussaoui, the French Moroccan who, as predicted, became the first person charged directly with crimes relating to the attacks.

This is only part hyperbole. It is hard for me to imagine any circumstances in which an American jury, faced with the enormity of this crime, will be willing to acquit Moussaoui if the government proves even the most tenuous link between him and the terrorists who slammed planes into buildings three months ago. And based upon the 30-page indictment revealed Tuesday, the government has a very good chance of proving that link through a claimed case they allege is based upon circumstantial evidence and a series of suspicious coincidences.

Will jurors be willing to give Moussaoui the benefit of the doubt on some of these coincidences? Sure. On all of them? Doubtful. And if the main allegations contained in the indictment are true, how is Moussaoui going to defend against them? With his background, a background he will be hard-pressed to deny, will jurors really believe that he had on his possession when arrested "flight manuals for the Boeing 747 Model 400" for some innocent purpose? Will even one of them believe that he didn't have "two knives, a pair of binoculars, a flight simulator computer program, fighting gloves and shin guards, software that could be used to review pilot procedures for the Boeing 747 Model 400" and other, similar material on him with designs to be involved in hijacking? Conceivable, I suppose. But hardly likely.

Conspiracy cases generally lend themselves to prosecutions based upon circumstantial evidence -- co-conspirators don't always squeal on each other -- and USA v. Moussaoui is no different. The indictment itself is fascinating not just for its stark recitation of the history of the al-Qaida terrorist organization (described in purely corporate terms by federal lawyers) but for the relative lack of criminal action on the part of Moussaoui. Yes, as noted above, the feds allege that he was caught with suspicious gear. But there are no allegations that Moussaoui stocked weapons or built bombs or wrote prepatory memos with specific conspiracy plans. There are no direct allegations that Moussaoui was even seen with or talked to any of the Sept. 11 hijackers before he was arrested in August 2001.

The government alleges that Moussaoui was at an al-Qaida terrorist training camp in Afghanistan in 1998 and if the feds can prove that fact, alone, the jury may be willing to render its verdict without hearing much more. But what more is there? If you take away the context that the government allegs created Moussaoui's conspiratorial motives and conduct, many of the defendant's overt acts seem positively harmless. The feds allege, for example, that he contacted a flight school in Norman, Okla. and that he set up an e-mail account with an Internet service provider in Malaysia. Nothing inherently illegal about that conduct, right?

Nor was it manifestly illegal to fly from England to Pakistan, as the government alleges Moussaoui did in December 2000, or to purchase flight training equipment or to fly from England to Chicago or Chicago to Oklahoma or even to attend the flight school in Oklahoma which he had previously contacted -- all overt acts alleged against Moussaoui by the feds. On the other hand, to be fair, it is odd and suspicious that he allegedly opened a bank account in Norman with $32,000 in cash and then ultimately paid $6,300 in cash to a flight training academy in Minnesota just before he was arrested. People who just want to learn how to fly, as Moussaoui described himself to federal agents after he was arrested, don't generally plop down that much cash, right?

So what does it all mean? In short, the government has alleged that Moussaoui had a motive to act out against the United States because of his ties to al-Qaida and that his conduct over the months and years preceding the terror attacks were remarkably similar to, and dovetailed with, the conduct of the 19 people we know who did fly those planes into those buildings. The rest of the story, the blanks in it if you will, will be filled in by the attorneys for both sides. And if for no other reason than that -- the telling of this story in the crucible of a courtroom, with a judge and an oath and a cross-examining opposing counsel involved -- the trial of Zacarias Moussaoui will be a good thing for this country because clearly this story needs to be told.

But no one should think that the ending isn't already written in the cards. This is one of those rare times in American legal history where the home-field advantage for the government likely will be so overwhelming and all-encompassing that the Moussaoui trial won't really be a "trial" at all but merely a prelude to his execution, by lethal injection, in Terre Haute, Indiana, where the worst domestic terror bomber in the nation's history, Timothy McVeigh, was executed just this past June.

It will be an incredible challenge to the nation's court system, to its federal judiciary, to ensure that Moussaoui is given the fairest trial possible, even in these extraordinary circumstances. Federal judges have done it before -- the Oklahoma City bombing trials are only the most well-known examples -- but it will be even harder after Sept. 11 to do it again for Moussaoui or any other person the government decides has to publicly face the music for what happened that day.



BY ANDREW COHEN
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  • CBSNews.com staff CBSNews.com staff

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