The Face Of What Might Have Been

Artist rendering of Zacarias Moussaoui, with beard, with his lawyers, seated front, arguing before US District Judge Leonie Brinkema, seated back, during a pretrial hearing, in Alexandria, Virginia, photo
Attorney Andrew Cohen analyzes legal issues for CBS News and

It's hard to remember what life was like before Sept. 11, 2001; hard to reach back to a time and a mindset that are gone and can never return. There were no color-coded terror alerts back then. No Department of Homeland Security. No grand constitutional struggle between freedom and security. And the thought that foreign terrorists would take over our planes, use them as missiles, and thereby kill thousands was, as one journalist noted at the time, simply beyond our conscience's grasp.

Zacarias Moussaoui's attorneys Monday afternoon asked his sentencing jurors to go back to that naïve and carefree time so that they could put into proper context and perspective the government's speculation that an honest Moussaoui, arrested on immigration charges in August 2001, would have and could have given the feds all the clues they would have needed to thwart the attacks. It is no easy thing to ask people to forget their searing experiences of that day, or of the four-and-a-half years in-between, yet only if they make that mental leap will Moussaoui have a decent chance to escape this trial without a death sentence.

The feds say that had Moussaoui told the truth when asked — had he divulged his al Qaeda ties and the purpose of his aborted flight training — the government would have been able to track down at least 11 of the 19 hijackers, including all four of the pilot hijackers who struck on 9/11. To satisfy their burden of establishing that Moussaoui's conduct "directly resulted" in at least one 9/11 death, prosecutors want jurors looking at the evidence from a post-9/11 perch, where government agents (we hope) zealously pursue terror leads and arrest first and ask questions later. This is nonsense, say Moussaoui's attorneys, because it completely ignores the complacent reality we lived in before the Twin Towers fell.

"What the government wants you to believe is a dream," defense attorney Edward MacMahon told jurors in federal court in Alexandria, Virginia. "We all wish it would come true." And he's right. We all would like to go back in time, and have Moussaoui tell the authorities about his plans to crash planes into buildings, and then have the feds believe him and capture the hijackers before they struck. It all seems so simple and easy and for this reason Moussaoui represents the most visible symbol for what might have been. But "what might have been" is not federal evidence, much less proof beyond a reasonable doubt, in a capital sentencing trial.

So jurors "can't assume" that the government would have acted before 9/11 the way it does now, MacMahon told jurors, making the case against Moussaoui "entirely spectulative." We "will never know, sadly, what would have happened" in those 25 days between Moussaoui's arrest and the terror attacks had Moussaoui leveled with his guards, the lawyer added. And then he turned to tell jurors about what the government did know during those days about terror threats involving planes. "The government is not on trial," MacMahon said, the "government did not cause 9/11… but our government did not act in the manner we wish it would have."

On behalf of a client who openly loathes him, MacMahon told jurors Monday that Moussaoui "didn't harm a soul" and played an "inconsequential role" in the 9/11 plot. No al Qaeda members tried to contact Moussaoui once he was arrested, MacMahon said, and no one even tried to learn what had become of him. Unlike the actual hijackers, the defense attorney noted, Moussaoui came to the United States alone, and much later than the rest, and was "never in the physical presence of a real 9/11 hijacker." He never phoned them before his arrest, and they never phoned him, and there is no evidence that the 9/11 plot needed another pilot anyway. Meanwhile, as the real hijackers were sending money back home to Osama bin Laden, Moussaoui was always pressing for more.

Why should jurors believe that the government would have done anything productive with Moussaoui's candor, MacMahon asked, when "the government didn't even look for the two hijackers who they knew were in the United States?" Over and over again, the defense attorney said, our government failed to follow up on terror leads that were far more significant than anything Moussaoui could have given it. "No event," MacMahon thundered, "including something said by a strange Muslim loner in Minnesota, would have changed" the massive bureaucratic inertia and myopia that existed before the terror attacks.

And even considering Moussaoui's lies, MacMahon added, the "government plainly underestimated the threat" that he posed to security. Think about it, the defense attorney asked jurors, an Arab man with no flight experience shows up paying cash to learn how to fly jets, makes clear his complete lack of knowledge of flying, and then comes across, in the view of his early interrogator, as a bad liar. The feds should have assumed Moussaoui was a terrorist and part of the chorus of "chatter" they already were hearing in crescendo that summer about plans to use planes as weapons?

If prosecutors want jurors looking at this trial from a post-9/11 perch, the defense needs them looking at the case with pre-9/11 eyes. And, if that fails, MacMahon offered jurors the standard, if sappy, alternative in cases like this. At the end of his opening statement, he told jurors that sentencing Moussaoui to death would give him "his wish" to become a martyr for the al Qaeda cause. "Please don't make him a hero," MacMahon said about his client. "He really doesn't deserve it."

By Andrew Cohen