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Talking Himself To Death

Attorney Andrew Cohen analyzes legal issues for CBS News and

Al Qaeda terror conspirator Zacarias Moussaoui proved Monday that he is a far better suicide witness than suicide pilot. Having failed miserably at training to fly a plane into the White House in 2001, the capital defendant was far defter with his words in 2006, offering jurors startling testimony that makes it more likely — but by no means certain — that he will soon be sentenced to death.

Moussaoui, the man who likes to shout every time he is led out of court, was calm and measured and articulate on the witness stand. He answered almost every question asked of him by both prosecutors and defense attorneys and on several occasions offered more information, more incriminating evidence, than he was asked to give. There were no outbursts and Moussaoui even got some in-court laughs when he sardonically answered one particularly inane question. He was a helpful witness, in other words, a courteous one, the kind you dream about having as a defense attorney in a capital case. Only it was Moussaoui's attorneys, and not prosecutors, whose life work may have been shattered in the span of a few hours in court.

That's because Moussaoui gravely undermined a key part of the defense when he told jurors that he was part of the 9-11 plot and not part of a subsequent plan to fly planes into buildings. He also linked himself to the actual hijackers in a way that no other witness had done before and, for good measure, implicated the so-called "shoe bomber," Richard Reid, into a "Who's-Who of Terrorists" scheme that would have see the White House destroyed. All of this is different from what Moussaoui had previously said about his terror role. And all of it helps prosecutors establish vital elements in their legal case for the death penalty.

Before Moussaoui took the witness stand and gently promised U.S. District Judge Leonie M. Brinkema that he would tell the truth — Moussaoui refused to raise his hand and swear an oath — he had told us in writing that he was part of a terror plot designed to unfold after 9-11, one in which he would have flown a plane into a prison in Colorado to try to free a Muslim cleric held there. But there was no mention of that now superseded story during his testimony Monday; no explanation as to why his story changed in such a dramatic (and dramatically incriminating) way. All jurors heard was Moussaoui, the confessed al Qaeda terrorist, matter-of-factly linking himself over and over again to the terror attacks that killed nearly 3,000 people.

Prosecutors could not have asked for a better witness at a better time. Their case crippled by mismanagement, bad luck, and a dearth of good facts and applicable law, the government entered these final few days of the first phase of Moussaoui's sentencing trial with no better than a 50-50 shot of attaining their goal. And the only reason the odds were that good for the feds before Moussaoui testified is the inherent nature of this case — a creepy terrorist on trial for the worst crime in American history in the shadow of the Pentagon. The feds had, in other words, nearly squandered the huge home-field advantage they once possessed in the case.

But then came Moussaoui, who with great irony may have single-handedly saved the government he has proudly and loudly claimed to hate. If he truly wants to die as a martyr, and finally meet all those virgins supposedly waiting for him in Paradise, then surely he took several grand steps toward that goal when he boasted of his contact with Osama bin Laden and his foreknowledge of the attacks. He told jurors, for example, that he purchased a radio while in jail in Minnesota in August 2001 so he could follow the subsequent attack as it unfolded. And he said that while he didn't know every detail of the 9-11 plan he knew that the World Trade Center would again be a target. He talked about knives like the ones used to cut throats on those planes and of how "gorgeous" the sight of the Twin Towers falling was.

And it wasn't just Moussaoui's words that linked him to 9-11. Prosecutors also were able to shrewdly and dramatically make a visual link between the defendant, the guy the feds have chosen to take the fall for the attacks, and the actual hijackers. They showed Moussaoui slides of the hijackers, one by one, and asked him to identify them. Moussaoui did, over and over again, with varying degrees of specificity. 15 out of 19 when last counted. And the import of the exercise was clear; he was one of them, and proudly so, and it must have cheered the feds to see and hear Moussaoui wax on about how he and one of the hijackers used to "joke" about things. It's no wonder that Moussaoui's attorneys had begged Judge Brinkema not to allow their client to testify.

Still, Moussaoui's jaw-dropping performance — lawyers, historians and journalists will be talking about this day for decades to come — leaves open two fundamental questions which jurors ultimately must resolve. First, they will have to determine whether Moussaoui is now, finally, telling the truth (after such a long history of lies) or whether this is just another attempt to aggrandize his own stature in the antisocial registry of terrorists. Remember, there are plenty of intelligence officials, and now-captured al Qaeda leaders, who see Moussaoui as a terrorist-wannabe, a buffoon, a failure, a cheerleader who now wants desperately to be executed by America as a so-called martyr for jihad even though he wasn't clever or competent enough in 2001 to carry out his role as a terrorist.

The defense now will have to pivot to emphasize this side of Moussaoui. Fortunately for them, at least, there is some material with which to work. Jurors now are learning (in the form of written summaries of statements) what Moussaoui's al Qaeda bosses thought of him — and I can virtually guarantee you that it will not necessarily synch up with what Moussaoui's own perceptions of his role in the terror network. So the case may come down to this-- which terrorists will jurors believe? The one in front of them in court who says he was part of the plot? Or the terrorist leaders captured abroad, the true masterminds of 9-11, who say that he was not? Indeed, before the day was out, jurors had heard the words of Khalid Sheikh Mohammed, the nuts-and-bolts planner of the horror of 9-11, whose summarized testimony indicated that Moussaoui was on al Qaeda's "back burner" and designated for another wave of attacks after 9-11.

And jurors will have to decide, too, whether Moussaoui isn't just a bit too eager to seal his own doom. You can bet that if the case goes much further defense counsel will tell jurors that recommending a death sentence for Moussaoui will be a gift to him rather than a punishment. Normally, that type of pap never flies with a jury. But there is little about this case that is normal. Don't give this creepy, kooky, slimly terrorist what he wants, the defense is likely to tell jurors, as it turns on its own witness the way he has turned on them for years in this case. And there was an element of farce to Moussaoui's testimony; as if he were delighted to subvert his own defense and confound his own tormentors.

The other unanswered question is whether jurors will remember after this day of drama that they still must find beyond a reasonable doubt that Moussaoui's lies caused death on 9-11. In other words, Moussaoui's latest confessions, alone, are still not enough by law to make him eligible for the death penalty. Moussaoui may have wanted to be an actual hijacker, and today may be trying to talk his way into being considered as one under the law, but he was in jail on Sept.11, 2001, and nothing he can do or say changes that.

Jurors still have to agree that the government would have thwarted the attack had Moussaoui said back in August 2001 what he is saying now. Jurors still have to believe that despite its gross negligence before the attacks that the feds would have taken seriously Moussaoui's story if it had been presented in time. In other words, the weakest part of the government's case remains so despite the fact that Moussaoui got yet another day in federal court and used it to help the very people who are trying to have him executed.

Only in America would a guy like this get a trial like this. Only in America would prosecutors have come to court with such weak evidence and needed the defendant to bail them out. And only in the warped mind of a terrorist would it be a point of visible pride to voluntarily align oneself with some of the worst criminals the world has seen in a long, long time. Moussaoui did that today, mocking his own defense and perhaps the truth, and now it's up to his judge and jury to absorb the shock of what he said, and how he said it, so that he gets what the facts and law say he deserves — whatever that turns out to be.

By Andrew Cohen