The Case Against Moussaoui Is Far From a Lead-Pipe Cinch

With his arraignment Wednesday, Zacarias Moussaoui will attain the dubious distinction as the first individual to be prosecuted for the Sept. 11 attacks. While prosecutors have publicly stated that this six-count conspiracy case is a “lead-pipe cinch,” Moussaoui’s indictment contains significant gaps that will test not only the definition of certain crimes but the meaning of “proof beyond a reasonable doubt.”

There is no question that the circumstantial evidence against Moussaoui is damning. First, Moussaoui allegedly received tens of thousands of dollars from Ramzi Binalshibh, a man with allegedly close ties to some of the hijackers.

Moussaoui then attempted to learn to fly an airplane in both Oklahoma and Minnesota in the months preceding the attacks. According to the instructors who turned him in to the FBI, Moussaoui was about as smart as a bag of hammers and seemed a public hazard even on a flight simulator.

Finally, there is an assortment of suspicious acts that range from buying knives to researching crop dusters. These acts, however, are not criminal in themselves. In fact, most of the 30-page indictment against Moussaoui focuses on other people and acts without reference to Moussaoui. Moussaoui stands accused of only inferred connections with the 19 hijackers.

Thus, while the government is pursuing well-based conspiracy charges for terrorism and aircraft piracy, the greatest controversy of the trial may be its effort to secure convictions specifically for the Sept. 11 attacks.

Of course, not every prosecutor can be blessed with the likes of Richard Reid, the other terrorist suspect. For a prosecutor, there is nothing quite like a muttering fanatic captured on a flight trying to light wires protruding from his high-top sneakers. The only thing Reid lacked was a T-shirt reading “I Survived Bin Laden’s Terror Camp--Class of ’99.” The greatest concern for a jury in Reid’s case will be whether to hold out for the free box lunch before convicting him on all counts.

Unlike Reid, Moussaoui may claim to be something of the accidental terrorist, researching but not actually engaging in criminal acts. The question is the line between the terrorist wannabe and a criminal co-conspirator.

Conspiracy charges are often made on the combination of circumstantial facts, facts that in isolation may be neither incriminating nor criminal. Yet there are serious questions with a majority of the counts against Moussaoui.

For example, Moussaoui is charged with conspiracy to use a weapon of mass destruction. However, the statutory definition of such a weapon expressly excludes “any device which is neither designed nor redesigned for use as a weapon.” That sounds a lot like an airplane. If an airplane is a weapon of mass destruction, the statute loses all meaning because any product from a car to a balloon could be such a weapon in a given case.

Putting that count aside, Moussaoui still faces counts alleging conspiracy to commit international terrorism and aircraft piracy, to destroy aircraft, to murder U.S. employees and to destroy property. Four of these charges depend on a critical, linchpin inference between the conduct of Moussaoui and the Sept. 11 attacks.

While Moussaoui may have met one hijacker, Hamza Alghamdi, in Afghanistan, the government has not alleged such a contact, and Moussaoui was not part of any known communications among the hijackers. As a result, most of Moussaoui’s trial will turn on a mysterious character who will not be present and has not been apprehended: Binalshibh. The government will likely argue that Binalshibh was the intended “20th hijacker” and that Moussaoui may have been a late replacement when Binalshibh was prevented from entering the country.

Yet even for a conspiracy case, this requires something of an inferential leap for some of the counts. If we are to believe Osama bin Laden’s statements on the found videotape released by the U.S. on Dec. 13, many of the Sept. 11 hijackers did not know the purpose of the operation until they were about to enter their respective airplanes. It is possible that Moussaoui was simply an “asset” who was never told of his possible role and, because of his failure to learn to fly, never activated as a sleeper agent. This possibility undermines the counts alleging conspiracy to murder U.S. employees and to destroy aircraft--charges that turn specifically on the conspiracy to fly one of the planes into a government building.

That would still leave conspiracy to commit international terrorism and to commit aircraft piracy as supported by circumstantial evidence. As insurance for a Moussaoui conviction, the government has chosen as the site for this trial the eastern district of Virginia. If conspiracy is what Judge Learned Hand called “the darling of a prosecutor’s nursery,” the eastern district is a prosecutor’s favorite delivery room. Called the “rocket docket,” the district makes fast work of criminal defendants and then hands them over to the nation’s most conservative court of appeals, the Fourth Circuit.

Ultimately, it is unlikely that Moussaoui will avoid conviction on all counts, and it is likely that he will be given a lengthy sentence. Of course, no one will mourn the termination of Moussaoui’s ambitions as a flying jihadi. At this time, however, only two of the six counts appear squarely based on the evidence and offer the most justified basis for punishment.

While there is a natural desire of prosecutors to convict someone specifically for the Sept. 11 attacks, Moussaoui will appear more like a trophy than a terrorist unless more evidence is offered at trial.

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Jonathan Turley is a law professor at George Washington University.