Prosecutor: Moussaoui's Lies 'Lethal'

Zacarias Moussaoui killed Americans on Sept. 11, 2001, by lying to investigators just as surely as he would have killed them by flying a plane into the White House, prosecutors argued Wednesday in his death-penalty case. Moussaoui's lawyers said that claim was mere speculation and not enough to put a man to death.

The death-penalty case against Moussaoui was turned over to the jury Wednesday afternoon. The nine men and three women on the jury will decide whether Moussaoui bears blame for at least one death that day. If so, a second phase of the trial will open that will determine whether he deserves to be executed.

Prosecutor David Raskin gave the government's closing argument in the first phase of Moussaoui's penalty trial, which determines whether the al Qaeda operative is responsible for any deaths Sept. 11.

If the jury decides he is, a second phase will determine whether he deserves execution.

"Zacarias Moussaoui came to this country to kill as many Americans as he could," Raskin said. "He was supposed to fly the fifth plane into the White House. Instead he killed people by lying and concealing the plot...that resulted in the worst terrorist attack in the country's history."

Raskin said Moussaoui lied "with lethal intent" when he failed to tell federal agents after his arrest in August 2001 about his al Qaeda membership and the plot to kill Americans using hijacked aircraft.

Defense lawyer Edward MacMahon countered that his client was merely an "al Qaeda hanger-on" who had nothing to do with Sept. 11. He accused the prosecution of trivializing bureaucratic blunders that might have prevented the 9/11 plot from being exposed.

"Moussaoui was never involved other than in his dreams," MacMahon said, trying to minimize damage that Moussaoui might have done to himself when he claimed on the stand that he was to have crashed a plane into the White House on Sept. 11.

"The government cannot prove a hypothetical, what would have happened if Moussaoui had not lied," he said. "We will never know what could have happened in the 25 days between Moussaoui's arrest and Sept. 11."

He said of his client: "He's now trying to write a role for himself in history when in reality he's an al Qaeda hanger-on."

Moussaoui watched the closing arguments impassively but shouted "Victory to Moussaoui, God curse America," during a recess after the judge and jury had left the room. The recess preceded U.S. District Judge Leonie Brinkema's instructions to the jury.

Prosecutors contended that if Moussaoui had told the truth after his arrest, investigators could have tracked down 11 of the 19 hijackers. "The FBI would have had the names, the phone numbers, and their addresses in some cases," Raskin said.

The bottom line, he said, was that, "He chose Osama bin Laden and because of that, 2,900 are dead."

MacMahon challenged the assertion that Moussaoui had led investigators on a goose chase with his deceptions. He said, for example, that the government had the identities of two of the hijackers 18 months before 9/11 when they were on U.S. soil, men who had been previously under CIA surveillance in Malaysia, and still did nothing.

Of that missed opportunity, he said: "That's bingo."

The jury must decide whether the only man charged in this country in the Sept. 11 attacks will be executed or imprisoned for life. If the jury finds he is eligible for the death penalty, the question now before the court, a second phase would involve another round of testimony, probably focusing on the victims, which could last weeks.

Prosecutors want a mistrial declared if the jury does not agree unanimously, which could mean a new trial with a new jury. Defense attorneys argued any hung jury should end the trial with a sentence of life in prison. Brinkema appeared to lean toward the defense argument, but did not immediately resolve the issue.

To win eligibility for the death penalty, prosecutors must prove that Moussaoui's actions resulted in at least one death on Sept. 11.

According to Tuesday's testimony, Moussaoui offered in February during a jailhouse meeting with prosecutors to testify for the government that he planned to hijack and pilot a fifth plane on Sept. 11, CBS News correspondent Jim Stewart reported.

FBI agent James Fitzgerald testified that Moussaoui told him, in a meeting requested by the defendant, that he did not want to die behind bars and it was "different to die in a battle ... than in a jail on a toilet."

Moussaoui dropped his effort to testify for prosecutors after he learned that he had an absolute right to testify in his own defense.

On Monday, he stunned the court by asserting publicly for the first time that he was to fly a 747 jetliner into the White House on Sept. 11, despite having claimed for three years that he had no role in the plot. Instead, he had said he was to be part of a possible later attack.

The February meeting with the prosecution was to have been off the record but was ruled admissible after the defense introduced a partial transcript of Moussaoui's guilty plea last April.

In that 2005 pleading, Moussaoui said, "Everybody knows that I'm not 9/11 material" and that Sept. 11 "is not my conspiracy." He said he was going to attack the White House if the United States did not release radical Egyptian cleric Omar Abdel Rahman, imprisoned for other terrorist crimes.

The defense on Tuesday also presented evidence from two high-ranking al Qaeda operatives that cast doubt on Moussaoui's claim of involvement in 9/11.

Their testimony supports that of another top al Qaeda captive, Khalid Shaikh Mohammed, chief organizer of the Sept. 11 attacks. He said in testimony read in court Monday that Moussaoui had nothing to do with the Sept. 11 plot, but was to have been part of a later wave of attacks.

The most colorful language came from the written testimony of an operative known as "Hambali," CBS News' Stephanie Lambidakis reports.

Hambali described Moussaoui as "very troubled" and "not right in the head." He "talked about dreams about flying planes into the White House," but didn't do anything about them, Hambali said. When Moussaoui showed up in Malaysia, he was nothing but trouble for his handlers, Hambali said.

Prosecutors argue that if Moussaoui had revealed his al Qaeda membership and his plans to hijack an aircraft, the FBI could have pursued leads that would have allowed them to track down most of the 9/11 hijackers and thwart or at least minimize the attacks.

The defense argues that nothing Moussaoui might have said would have made a difference because the FBI and other government agencies were consistently ignoring warnings prior to 9/11 that an attack was imminent.

The defense also argues that it's legally irrelevant to speculate on what might have happened if Moussaoui confessed, because Moussaoui always enjoyed a constitutional protection against self-incrimination.

"The defense is going down two paths," CBS News legal analyst Andrew Cohen said.

"First, Moussaoui's attorneys are undercutting their own client's stunning testimony, using the words of other terrorists to portray the defendant as a nuisance, an annoyance, and someone who long before 9/11 had lost the confidence of the real planners of the attack. The other path is to remind jurors that U.S. intelligence officials didn't need Moussaoui's confession back in August 2001 to help prepare for an attack," Cohen said.