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Which One Was Not Like The Others?

Attorney Andrew Cohen analyzes legal issues for CBS News and

If Zacarias Moussaoui and his al Qaeda buddies ever were to gather in the afterlife for a "Survivor" series, it's fairly clear from Tuesday's testimony that Moussaoui would be the first terrorist voted off the island. One terror thug after another, through written summarized testimony vetted by US military officials, trashed the dour capital defendant and thereby undercut his stunning testimony Monday in which he portrayed himself as a key component of the Sept. 11 plot.

Which terrorists to believe? Moussaoui told jurors during this capital sentencing trial that he was a trusted and loyal terrorist who knew an awful lot about the planned attacks on New York and Washington. But his terror bosses and colleagues — Al Qaeda leaders and lieutenants captured years ago by US officials— told jurors instead that he was instead an unreliable foot soldier whose "problematic personality" and failure to accomplish basic training tasks led them to place him on the "back burner" of the Sept. 11 terror operations.

Actually, those were some of the nicer things that Moussaoui's former colleagues said about him. One terror leader aligned with Al Qaeda, known only as Hambali, summarized his pre-Sept.11 feelings for Moussaoui by calling the capital defendant "very troubled," a "very bad character," and "not right in the head." Hambali wrote in response to questions agreed to in advance by lawyers that Moussaoui was disobedient, overzealous, "not diligent about his mission" and "managed to annoy everyone he came into contact with." As a result, Hambali testified in absentia, the other terrorists "were happy to be rid" of the man the U.S. government wants jurors to believe was the key to preventing the worst crime in American history.

There was more intra-terrorist trash talk. In his written summary, top Al Qaeda leader Khalid Sheikh Mohammed also indicated that Moussaoui was bumped from Al Qaeda's "A List" because he was a pain in the butt and could not be trusted. He quickly became unimpressed with Moussaoui, Mohammed testified in writing, because Moussaoui talked too much, complained too much, and otherwise brought unwanted attention to himself by buying ton of ammonium nitrate fertilizer as part of an aborted bomb plot. Ultimately, thanks to an intercession by Osama bin Laden himself, Moussaoui was assigned to undertake flight training in America, Mohammed wrote, but even then he screwed up by communicating too openly with the terrorist's home base.

Meanwhile, a captured terror operative known only as "Khallad" testified in writing, through summarized statements, that Al Qaeda members were "forced to shut off" Moussaoui's cellphone because he was using it too much and that Mohammed, the big shot, instructed Khallad to "cut off all contact" with Moussaoui. Then the man U.S. officials now believe really was the 20th hijacker, Muhammad Al-Qahtani, testified in writing that he never met Moussaoui and yet another captured terrorist, Mustafa Ahmen Al-Hawsawi, one of the money men of the Sept. 11 operation, went on the record saying that he was never asked to do any work on Moussaoui's behalf. Al-Haswawi also told jurors in a written summary that none of his other terror colleagues spoke to him about Moussaoui or any involvement Moussaoui may have had in any terror plot.

All of this was designed by defense attorneys to portray their client as a delusional loser, a mere cheerleader, really, who is both imagining and inflating his connections to the Sept. 11 plot. Moussaoui's attorneys planned to introduce all this evidence before he took the stand Monday but his incriminating testimony makes it all the more important. Moussaoui talked to jurors like a man in the know about Al Qaeda's Sept. 11 plans; a man who knew what would happen, how it would happen, and what impact it would have, and all of those elements would be likely to convince jurors that he had in his power the ability to stop the attacks before they occurred if only he had told the truth when arrested in August 2001.

If federal jurors here in Alexandria, Va. ultimately believe Moussaoui — and surely there is some sort of gravitational pull that would make them want to believe him since he is such an attractive target of scorn and revenge — it will be easier for them to hold him responsible for the thousands of murders committed on Sept. 11, 2001. The more jurors believe there is a link between Moussaoui and Sept. 11, the more involved they believe he was, the more likely they are to conclude that his failure to tell the truth to authorities when arrested deprived the government of its last best chance to prevent the attacks. And if the jury reaches that conclusion, Moussaoui is virtually a dead man walking.

On the other hand, if jurors tend to believe Moussaoui's employers, the true leaders of Al Qaeda back in the late summer of 2001, it will be harder for the panel to believe that Moussaoui is doing anything other than exaggerating his role as a bad guy in order to die as a martyr, slain by his hated America. After all, if he was as small a fry as they claim he was, if he was so out of the loop, and in such disfavor and disrepute, he would have been unlikely to have been able to tell the authorities much of anything important back when he was arrested in Minnesota on immigration charges a few weeks before Sept 11.

It's ironic, of course, that the only criminal trial we are ever likely to see arising out Sept. 11 likely will turn on which confessed terrorist is a more credible witness. But this case has been soaked with irony, especially when you consider that it is people like Mohammed, Khallad and al-Qahtani, and not Moussaoui, who ought to be on trial for their lives. They, not him, after all, are the true masterminds of the attack. They, not him, knew every operational detail, including the date. They, not him, conceived of the dastardly use of planes as missiles. They, not him, kept secret their secrets. And yet they are being used as witnesses in his case. That's like Don Corleone being used as a witness in the mob trial of Enzo, the baker.

During the height of the vital name-calling Tuesday, Moussaoui closed his eyes in court for minutes at a time. He probably wasn't sleeping but surely it must have been hard for him to hear his heroes say such embarrassing things about him. Among gruesome terrorists, surely, there are points of pride and no one could come away from Tuesday's testimony sure that Moussaoui is nearly the warrior he wants jurors to believe he is. He talked the talk all right on Monday. But his former buddies on Tuesday, one after the other, told the panel that he never came close to walking the walk.

By Andrew Cohen