Although Zacarias Moussaoui was in jail when the Sept. 11 attacks were carried out, legal experts say the government has a strong case for winning a conspiracy conviction against him that could lead to a death sentence.
That's because the crime of conspiracy is both a powerful charge and easy to prove, experts say.
The crime of conspiracy is "in essence an agreement to commit an unlawful act," the Supreme Court has said.
Prosecutors do not have to show that Moussaoui committed an overt illegal act, such as airline hijacking or murder. He may never have met any of the 19 hijackers, and he may have remained unaware of the true extent of their deadly plans.
Even so, he could be found guilty of "conspiracy to commit aircraft piracy" and "conspiracy to murder U.S. employees" as long as prosecutors can link him to the Al Qaeda plotters who carried out the acts of terrorism.
And the indictment sets forth those links, stating: "In or about April 1998, Moussaoui was present at the Al Qaeda-affiliated Khalden Camp in Afghanistan."
In February of this year, he flew from London to Chicago with $35,000 in cash and shortly afterward enrolled in a flight training school in Norman, Okla.
In early August of this year, Ramzi Binalshibh, an Al Qaeda operative in Germany, wired him $14,000. A day later, Moussaoui bought two knives and then was driven to Minneapolis, where he enrolled for more flight training, this time on a Boeing 747 simulator, the indictment says.
There he aroused the instructors' suspicion, and by Aug. 17 he was in federal custody.
Often, the hardest task for prosecutors is proving the existence of a criminal conspiracy. But in this case, the 19 hijackers murdered thousands of people in attacks that were witnessed worldwide through live news coverage.
"This is as great a conspiracy as anyone could imagine," said former federal prosecutor John M. Bray. "The pictures are so dramatic that a conspiracy is clearly established.
"The second part, to show the criminal involvement of the individual, does not require much evidence under the law. The case law says only 'slight evidence' is needed. He better have a very good reason for why he took flight training."
Most of the indictment details the activities of Osama bin Laden and the hijackers. In 1998, the year Moussaoui was in training with Al Qaeda, Bin Laden declared a holy war "on the Jews and Crusaders" and, the indictment says, decreed that "Muslims should kill Americans, including civilians, anywhere in the world."
Supreme Court opinions defining conspiracy say that "the declarations of some of the conspirators" are attributed to all of them. "And it is settled that an overt act of one partner is the act of all," the court has said.
Conspiracy Not Often Hard to Prove
Therefore, Bin Laden's vow to kill Americans becomes the goal of all the conspirators, including Moussaoui. And the mass murders committed by the hijackers become his crime as well.
"Ordinarily, conspiracy is not a hard charge to prove," said George Washington University law professor Stephen Saltzburg. "You don't have to show much, just a combination of persons who agreed to accomplish certain things."
Loyola Law School professor Laurie Levenson said conspiracy charges are often "proved by circumstantial evidence, which includes financial transactions or transactions that might look innocuous," like joining a gym.
The indictment says that many of the hijackers joined gyms in Florida, presumably to build their physical strength for the planned attacks. "Moussaoui joined a gym in Norman, Oklahoma," it states.
The document "lays out a clear association between this defendant and those involved in the Sept. 11 attacks," Levenson said. It "uses everything from his possession of a flight manual to financial ties and the like. Even though the burden of proof is on the government, the reality is that the burden practically will be on the defense to come up with some innocent explanation for what he did."
Los Angeles lawyer Jan Handzlik, a former federal prosecutor, agreed that the indictment is strongest in "stating the case for guilt of Al Qaeda and everyone associated with it." However, it "fails to allege that [Moussaoui] did anything to facilitate these crimes. We are asked to speculate that perhaps Moussaoui was planning to hijack a 747, not a 767, on a different occasion. The key question is, does the government have enough evidence to connect Moussaoui with the [Sept. 11] conspiracy," said Handzlik.
Still, the fact that the government chose to bring the case as a public charge in an ordinary U.S. court, rather than in a secret military trial, "speaks volumes about the faith we can and should have in our own justice system," Levenson said.
Harvard law professor Anne-Marie Slaughter, an outspoken critic of military tribunals, agreed that Tuesday's indictment marked "a very positive development."
"The administration is willing to make its case in public," she said. "That means it is confident it can make the case before the world. That's important legally, but it is hugely important politically."
However, the administration also chose a friendly forum for filing the case in Alexandria, Va. In legal circles, the eastern district of Virginia is known as "the rocket docket."
Criminal cases move quickly. "They have the fastest time of virtually any federal court. The judges are very no-nonsense. The O.J. [Simpson] murder trial would have taken about 10 days in the eastern district," said Washington lawyer Lawrence Barcella.
The jurors in Virginia suburbs also include a high proportion of Pentagon employees and retired military men and women and their families.
Defense Falls to Federal Public Defender
On Tuesday, at least a portion of the task of defending Moussaoui fell to the newly created federal public defender's office in Alexandria.
Frank W. Dunham Jr., a veteran Virginia defense lawyer who was appointed in March to launch a public defender's office for the eastern district of Virginia, said he learned of the indictment Tuesday afternoon.
"I said to myself, 'Please Lord, don't let it be an Alexandria indictment," he said.
Dunham does not even have an office there yet and expects to work on the case out of the public defender's office in Richmond, 90 miles away.
Under the federal death penalty law, a defendant who faces a possible execution is entitled to two lawyers, one of whom specializes in capital punishment.
Dunham said that if the case falls to him, he will tap Gerald Zerkin, a highly respected capital defense lawyer who works in the Richmond office, for one of the slots. (Dunham said that under normal procedures the other defense lawyer would be selected by the district's chief judge in consultation with him.) "I knew we would have some death penalty cases. I knew I needed someone who knew the death penalty inside out, but I never thought we would have a case like this," he said.
But when asked about the indictment, Dunham was ready. "There's more kitchen than sink," he said. "It's everybody else but our guy."
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Savage reported from Washington and Weinstein from Los Angeles. Times staff writer Robert L. Jackson in Washington contributed to this report.