By now, government prosecutors hoped to have a guilty conviction already in hand for Zacarias Moussaoui, the so-called 20th hijacker who was indicted 90 days after the 9/11 terrorist attack. Instead, the case is teetering on the brink.
The high-profile trial of the only man charged with 9/11 crimes was supposed to be quick, clean and transparent, a shining example of how the American judicial system can rise to any challenge. Instead, the case has emerged as one giant headache for an army of prosecutors who appear stymied by a lone, paranoid al-Qaida operative who's serving as his own legal counsel. ("MIND YOUR OWN PIG BUZINESS" read a Moussaoui missive to his court-appointed counsel.) The defendant and the government are now pitted in legal battle that's taken an unexpected turn over Sixth Amendment rights, and could ultimately end up before the United States Supreme Court.
And it all could come to a head on Monday. That's when, pressed by the trial judge, the Bush administration may feel forced to yank the case out of the civilian courts, name Moussaoui an enemy combatant, and send it to a secretive military tribunal. There, he could be detained indefinitely without legal protections given defendants in the U.S. court system. For prosecutors, the move would essentially be an admission of failure, and for the government, an admission that American courts are simply not equipped to dispense justice to al-Qaida terrorists.
It's a dizzying reversal of fortune since Attorney General John Ashcroft announced the case against Moussaoui in a televised press conference in December 2001. In detailing the six counts against French Moroccan Moussaoui for conspiring with Osama bin Laden to carry out the 9/11 attacks, Ashcroft declared, "The indictment today is a chronicle of evil," adding that "al-Qaida will now meet the justice it abhors and the judgment it fears."
And early on it appeared Moussaoui, who admitted in open court to being an al-Qaida loyalist who prayed for "the destruction of the United States of America," would plead guilty and hand the government an important symbolic courtroom victory. But when he realized he'd have to admit to involvement in 9/11, perhaps as the 20th hijacker, Moussaoui suddenly changed his plea, and the legal entanglements began. And the prosecution's optimism began to fade. Early on, "There was a feeling of let's go, we've got criminal law to cover those kinds of conspiracies, that we've had success bringing terrorists to justice in the past, such as the first World Trade Center bombing case," says William Banks, professor of law at Syracuse University, and an expert on national security.
Now looming is an abrupt venue change to military tribunal l9 months after the indictment was unsealed. "To go this far into a prosecution and pull it, to change the rules in the middle of the game and move it to a more-or-less secret proceeding, makes us look bad," says Banks. "It's unprecedented."
And the handling of the Moussaoui case has vocal critics in some unlikely quarters, including family members who lost loved ones on Sept. 11. Determined to help prevent future attacks and find answers about how such a complex terrorist plot went undetected on American soil, some family critics complain the FBI is overly fixated on a Moussaoui conviction, and that prosecutors have not tried to plea bargain with the defendant in an effort to obtain important information.
"The Moussaoui case is not a priority," says Beverly Eckert, whose husband, Sean Rooney, died in the twin towers. "That might strike some people as strange, but this person, who for all intents and purposes seems to be peripheral to 9/11, is already behind bars. For his conviction to be the focus of such extraordinary resources, that's where we diverge from the FBI."
"We ask questions about how the World Trade Center building collapses, about the evacuations procedures of the New York Fire Department that day, the official timeline for when the planes hit, and we're told we can't get an answer on that because it conflicts with the Moussaoui case," complains Kristin Breitweiser, whose husband, Ronald, was killed when United Flight 175 crashed into Tower 1. "I believe everyone should get a fair trial. But I also think it's a convenient excuse for the FBI to block answers and not inform the public."
And the criticism is coming from Washington corridors, as well. Republican Tom Kean, chairman of the independent 9/11 commission created to investigate the terrorist attack, this week also expressed concern about the government's penchant for secrecy surrounding the case. In an interim report released on Tuesday, the commission singled out the Justice Department for its lack of cooperation with regard to Moussaoui information.
"Also, why hasn't [Moussaoui] been offered a plea agreement?" asks Breitweiser. "Maybe we'd gain a wealth of information. I just don't understand how they're handling this case. After tens of thousands of 9/11 leads and tips we've got one guy on trial? I don't get it."
The case against Moussaoui as spelled out in the indictment is largely circumstantial, based on a similar pattern of behavior as the other hijackers, such as taking flight classes. But it contains no direct links between him and the other 19 hijackers. Nor does it suggest Moussaoui ever met them. On paper, it doesn't look like an easy case to prosecute.
And at this point, some senior law enforcement officers must be wishing they'd never heard the name Zacarias Moussaoui. He's already been the source of extraordinary embarrassment for the FBI, when it came out that -- weeks before the Sept. 11 attacks -- the agency refused a request by its Minneapolis office for a warrant to search Moussaoui's computer. After being picked up on immigration charges on Aug. 16, 2001, a move prompted by local flight instructors who became suspicious about Moussaoui's motive for learning to fly a Boeing 747 jumbo jet, local FBI agents conferred with French intelligence officers and became convinced Moussaoui was a radical Islamic terrorist. Agents, some of whom were concerned Moussaoui might be planning to "fly something into the World Trade Center," beseeched FBI headquarters to approve a search warrant based on national security. The relatively routine request was denied, in part because an FBI agent in Washington rewrote Minneapolis' warrant request and omitted key facts.
(One hour after the Sept. 11 attacks, the Minneapolis FBI agents went to a local judge and got a search warrant for Moussaoui's computer, using the same information FBI headquarters had deemed insufficient just weeks earlier.)
At the December 2001 press conference announcing the Moussaoui indictment, FBI Director Robert Mueller downplayed any suggestion that the bureau missed an opportunity to intercept the 9/11 attacks. It wasn't until May 2002, when Coleen Rowley, a staff attorney with the Minneapolis office, went public with her version of events that it became clear just how badly the FBI had bungled the handling of Moussaoui pre-Sept. 11.
In her now-famous, scathing letter to Mueller she complained how her FBI point person in Washington "continued to, almost inexplicably, throw up roadblocks and undermine Minneapolis' by-now desperate efforts to obtain a search warrant." And that "HQ personnel brought up almost ridiculous questions in their apparent efforts to undermine the probable cause." This, just weeks after a separate memo from the FBI's Phoenix office arrived in Washington warning the bureau about possible al-Qaida operatives attending U.S. flight schools to seek training for terrorist purposes. (Fifteen months later, Marion "Spike" Bowman, a key FBI supervisor who blocked Minneapolis' request for a Moussaoui search warrant, received a presidential citation, and a hefty pay raise, for his "exceptional performance.")
But the embarrassments didn't stop there. Last September came word that the FBI, in what the trial judge called a grave security breach, inadvertently gave the self-described terrorist 48 classified documents in preparation for his trial. They were quickly retrieved, but the judge was forced to grant Moussaoui's request to postpone the trial.
But by last September, the government had a far bigger problem with the Moussaoui case: the capture in Pakistan of al-Qaida commander and Sept. 11 mastermind, Ramzi Binalshibh. A former roommate of 9/11 pilot Muhammad Atta, Binalshibh was named in the 2001 Moussaoui indictment as a co-conspirator for allegedly wiring Moussaoui $14,000 to help in pay for flight classes in advance of the 9/11 plot.
For the war on terrorism, Binalshibh's capture represented a key victory, a potential treasure trove of intelligence. For Moussaoui's prosecutors it became a startling setback, because during interrogation Binalshibh stated that Moussaoui, while active in al-Qaida, was not trusted enough to take part in 9/11. That's great news for Moussaoui, who could face the death penalty if he's found to have direct involvement in 9/11.
"From all indications the government didn't think anybody with firsthand knowledge of Moussaoui's activities would be captured," says Ken Hurwitz, an attorney with the Lawyers Committee for Human Rights. "Binalshibh's capture is a good thing for the country, but for this case it's a very unfortunate thing."
According to both the Sixth Amendment ("the accused shall enjoy the right to have compulsory process for obtaining witnesses in his favor") and District Judge Leonie M. Brinkema, who's overseeing the terrorism trial in Alexandria, Va., Moussaoui has every right to question Binalshibh.
Invoking unprecedented national security powers, Ashcroft's Justice Department insists he does not. Government prosecutors argue granting Moussaoui access to the witness could harm national security, as well as interfere with the government's interrogation of the witness, which could take years.
The government fears the precedent Moussaoui's access to Binalshibh would create. It does not want captured al-Qaida and Taliban fighters to be regularly paraded through courts, even via video hookup, discussing key intelligence. More importantly, government interrogators want to keep captured terrorists completely isolated so they give up hope of ever seeing anyone from the outside world again. That isolation would be destroyed if prisoners knew they would be participating in U.S. court cases.
In a sense the government is trying to have it both ways, insisting it can try Moussaoui in an open civilian court, but at the same time asking the judge to grant extraordinary, wartime leeway -- denying access to a witness -- to prosecute the case. "The two don't mesh," says Banks.
In January, Judge Brinkema ordered the U.S. to grant Moussaoui access to Binalshibh. In response, prosecutors did nothing; they didn't grant him access, nor did they openly defy the judge. "The government stonewalled," says Banks.
Eventually, prosecutors appealed Brinkema's ruling to the conservative U.S. 4th Circuit in Richmond, Va. There, prosecutors stressed that in the war against al-Qaida, "the national interest dictates great care in the handling of this sensitive and life-saving information."
Assistant U.S. Attorney General Michael Chertoff argued that the government wants to put Binalshibh on the witness stand because he actually "buries the defendant" -- but because of national security reasons the government could not allow it. Essentially, Chertoff (recently confirmed as a judge on the 3rd Circuit) said Brinkema's court order infringed on the executive branch's constitutional powers to wage the war on terrorism. But 4th Circuit Judge Roger Gregory raised objections about the government's argument, insisting "It would be a field day for the government to be able to indict someone, try them and then also be able to decide for his defense what is important for them."
In late June, a three-judge panel for the 4th Circuit formally ruled against the government, but not on the merits. It essentially told prosecutors that in order for the court to hear its case, the government first had to go back to Brinkema's court and openly defy her order by refusing to grant access to Binalshibh, which would then trigger a proper appeal.
"It's a game of chicken," says Hurwitz. "It's the circuit court saying, 'If we have to muddy our feet with this case, you go first and defy the judge.'"
The problem for prosecutors is that defying Brinkema's order could trigger another action: She could dismiss some of the charges against Moussaoui, particularly the ones related to Binalshibh's activities. Prosecutors could then ask the 4th Circuit to reinstate the charges. But for those prosecutors, the prospect of Americans who haven't been closely following the legal maneuvering seeing headlines announcing "Charges Against 9/11 Terrorist Dismissed" must be nauseating.
"It absolutely would not look good for the prosecutors," says Hurwitz, who thinks that, psychologically, "it would probably make it harder for the 4th Circuit to find for the government after it's defied a judge's order." It would also represent an extraordinary gamble, because if the government's novel legal argument failed to sway the 4th Circuit, the charges against Moussaoui would be lost for good.
If prosecutors did prevail, the case would "almost certainly get to the U.S. Supreme Court," says Banks, noting that "there's no precedent that's even close" for denying access to a witness in custody.
For now, the government has asked the entire panel of judges on the 4th Circuit to hear its argument for why Moussaoui should not have access to a witness in custody.
But critics say prosecutors find themselves in a legal no man's land, with a muddled case and no coherent strategy. "They'll just play it out as long as they can," says David Cole, a professor of constitutional law at the Georgetown University Law Center in Washington. "There's virtually no chance they can win on their appeal. If the government wants to put Moussaoui on trial and there's a witness with exculpatory information, they must allow Moussaoui to talk to the witness. And they know that.
"At the end of the day what they'll be forced to do is give him access to the witness or put in him a military tribunal," Cole says. "And that has certain political, or P.R. ramifications."
Brinkema has given the prosecution until Monday to decide if it will comply with her order regarding access to Binalshibh. It's not the first time she's prompted prosecutors to act, but this time a decision may be imminent, since the last thing prosecutors want to do is defy the judge's order, have some of the charges against Moussaoui dropped, and then move the case to an overseas military commission.
And what will happen if the Bush administration does abandon federal courts in favor of a secret hearing? The decision will likely bring loud protests from overseas, where U.S. military tribunals have drawn sharp criticism, particularly among two of the United States' closest military allies of late, the U.K. and Australia.
At home the outrage likely will be more muted, but "people will feel uncomfortable," predicts Hurwitz. "And people involved with the legal system will be particularly disturbed. Because it's a violation of our standards, of a system that's based on equal status for all before the law and the right to call witnesses for one's defense."