Moussaoui Trial Strategy Outlined

With jury selection set to begin today in the Zacarias Moussaoui trial, federal prosecutors expect to argue that he should be executed not for what he did in furthering the Sept. 11 terrorist conspiracy, but rather for doing nothing to prevent it.

That legal strategy, outlined in a letter to victims of the Sept. 11 attacks, appears fashioned around the government’s long-held objective to keep much of the intelligence they have gathered about the Sept. 11 plot secret.

Moussaoui, a 37-year-old French citizen of Moroccan descent, was arrested and jailed on immigration charges in Minnesota a month before the terrorist strikes on New York and the Pentagon. By limiting their case to his failure to cooperate with FBI agents before the attacks, prosecutors could keep secret some details they have learned about how the plot was hatched years earlier by Al Qaeda operatives under the direction of Osama bin Laden.

The government’s case, prosecutors told the victims and relatives of the nearly 3,000 dead in a letter, “will essentially focus on whether the government could have stopped the Sept. 11 attacks had Moussaoui told the truth, instead of lying, at the time of his arrest.”

The tactic could backfire. Moussaoui’s defense team plans to counter the prosecution’s case by reminding the jury of various other signs the government could have picked up on that would have alerted them to the plot.

For instance, FBI officials in Washington never approved opening Moussaoui’s computer laptop, which could have provided details about the plot. The bureau also shelved a memo from an FBI agent in Phoenix who grew concerned about Middle Eastern men taking flying lessons in Arizona.

Because Moussaoui pleaded guilty to capital murder in April, his trial actually will be the penalty phase of the case. It is expected to take from one to three months to decide whether he should die by lethal injection or spend the rest of his life in prison with no possibility of parole.

U.S. District Judge Leonie M. Brinkema is to meet today with about 500 prospective jurors. In four sessions throughout the day, in the presence of Moussaoui, his lawyers and prosecutors, she will briefly describe the case and ask the prospective jurors to complete questionnaires.

Starting Feb. 15, she will begin calling them back for individual questioning. Northern Virginia is a Washington suburb and home to the Pentagon, as well as to thousands of military families and government bureaucrats. But the judge said she believed a fair panel could be chosen from among them.

On March 6, 85 are to return to the courtroom for selection of 12 jurors and six alternates.

Prosecutors face several obstacles. Moussaoui was in jail on the day of the attacks, suggesting he could not have been a significant player in the conspiracy. There are also questions about his mental stability, though the judge has said she believes him competent to stand trial.

Andrew McCarthy, a former federal prosecutor who successfully prosecuted Sheik Omar Abdel Rahman for earlier terrorist plots in New York, said in an interview that he believed the government would have to show Moussaoui was “in the middle of the plot, or at least in it enough to be complicit.”

“It’s not just enough to say he was a member of Al Qaeda. He has to be tied to the nuts and bolts of killing 3,000 people to get a death conviction,” McCarthy said.

In addition, Moussaoui’s lawyers have said that several mental health experts will testify about how their client’s violent and alcoholic father abandoned the family, and how the young Moussaoui spent five years in an orphanage. Later, the lawyers wrote in a legal brief, he was “exposed to the propaganda and enticements of the radical mosques which flourished in London in the 1990s.”

By adulthood, according to defense psychiatrist Nancy C. Andreasen, Moussaoui suffered a “major thought disorder, most likely schizophrenia.”

Randall Hamud, a San Diego lawyer who has represented Moussaoui’s mother, said in an interview that she believed his four years in solitary confinement since his arrest had made him delusional. “His decision to plead guilty is not the decision of a rational person,” Hamud said.

In political terms for the Bush administration, the trial will go down as one of the pivotal clashes in the U.S. war on terrorism. For the government, death is a win. But unlike suicide bombers and other martyrs for Islam, Moussaoui does not want to die.

“My life is at risk, and I will never compromise it,” he once told Brinkema. Speaking in the third person, he added: “Moussaoui will fight every inch against the death penalty.”

The defendant had wanted the case moved out of the Washington area. But apparently resigned to a fate of death or life in prison, he told the judge at a pretrial hearing: “I understand fully the U.S. system of justice. I will never see the light again.”

The trial will proceed in two phases. First the government hopes to prove that Moussaoui’s failure to cooperate with authorities helped lead to the deaths on Sept. 11.

In their letters to victims, prosecutors said, “the government will need to prove that Moussaoui intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used ... and that victims on Sept. 11 died as a result of the act.”

The jury will weigh whether the government proved that Moussaoui’s failure to cooperate was enough to allow the plot to continue. If the answer is no, the case ends with an automatic sentence of life without parole.

If prosecutors succeed, the case moves into the second phase. Here, prosecutors must prove one of three allegations: that Moussaoui “knowingly created a grave risk of death to one or more persons,” that his actions “were in an especially heinous, cruel and depraved manner in that they involved torture and serious physical abuse to the victims,” or that his role in the conspiracy involved “substantial planning and premeditation.”

The jury will then deliberate again. A unanimous vote of all 12 is needed for a sentence of death.

The case is complex, and there has been much public doubt over the last 4 1/2 years about Moussaoui’s ties to the Sept. 11 plotters.

Even the Sept. 11 commission members, who conducted the most exhaustive independent review of the conspiracy, were uncertain. In their final report in 2004, they couldn’t decide whether Moussaoui was “an Al Qaeda mistake” or “a missed opportunity” for federal agents.

Many of the victims’ families -- 1,100 relatives have signed up to watch the proceedings on closed-circuit broadcasts on the East Coast -- also have doubts about Moussaoui. They wonder why others, like Sept. 11 masterminds Khalid Shaikh Mohammed and Ramzi Binalshibh, have not been brought to justice since their capture several years ago.

“If Moussaoui was a part of the plot, I don’t yet feel a true connection,” said Patty Casazza, who lost her husband, John, in the World Trade Center. “I’d like to see the evidence and not just a claim of guilt.”