The Growing Collection of '20th Hijackers'

Jonathan Turley is a law professor at George Washington University.

Will the real 20th hijacker please stand up?

Wednesday, Federal Bureau of Investigation sources disclosed that their agency had uncovered the identity of the "20th hijacker" ... again.

The theory is that one of the planes -- Flight 93, which crashed in Pennsylvania -- was one person short, with only four terrorists as opposed to the five-member teams controlling the other three planes. Though it didn't release the name of the current suspect, the FBI confirmed that it was looking for a man who it believed was forced to leave the country shortly before the 9/11 attacks.

This means he is not one of the two previously identified 20th hijackers, who are in custody.

The new 20th hijacker is expected to be captured in due time and will presumably join the growing collection of 20th hijackers acquired by Atty. Gen. John Ashcroft.

The status of "the 20th hijacker" has become something of a terrorist time-share. As the government seeks the arrest of the third 20th hijacker, it is struggling to execute its first 20th hijacker -- Zacarias Moussaoui. When Ashcroft promised to the nation that Moussaoui would personally answer for the crimes of 9/11, Moussaoui instantly became a trophy terrorist looking at the death penalty.

The problem with the first 20th hijacker is that there is precious little evidence to suggest that he was indeed the 20th hijacker and a great deal of evidence that indicates he was not.

Moussaoui has admitted that he was an Al Qaeda member and a terrorist wannabe -- self-incriminating statements that all but seal convictions with a life sentence. However, Moussaoui denies being part of the 9/11 conspiracy -- a conclusion that most independent observers have supported.

The hijackers had fairly homogenous patterns of conduct and communications. Moussaoui does not fit this pattern. Moreover, there were no direct communications between Moussaoui and the other hijackers beyond the most extenuated connections. Finally, Moussaoui has been a barking lunatic in the courtroom. It is highly doubtful that Al Qaeda would bring such an unstable figure into its most secretive conspiracy. Indeed, interrogation of 9/11 plotter Ramzi bin al-Shibh confirmed the view that Moussaoui was considered too unreliable and unhinged for such a mission.

The government has credited Bin al-Shibh with providing valuable information, including incriminating information against Moussaoui for non-9/11 crimes. However, it has fought efforts to allow his testimony to be introduced in Moussaoui's trial.

Recently, U.S. District Judge Leonie Brinkema ruled that the Justice Department could not seek to execute a man while denying him access to witnesses that the government itself identified as central to the 9/11 charges. Rather than dismiss the whole case, however, Brinkema offered a measured alternative.

She barred the government from seeking the death penalty or arguing that Moussaoui was part of the 9/11 conspiracy. He could still be tried as a terrorist. Under this approach, the government could make quick work of Moussaoui, who could be convicted on his statements alone.

Yet, for almost two years the government has resisted a trial on basic terrorist counts that would easily net Moussaoui life in prison. Instead, it has spent a huge amount of money and resources on higher court appeals hoping to press the case using a 9/11 theory.

The government has insisted that a trial of Moussaoui on the crimes of 9/11 is necessary to give the surviving victims a chance to testify about their loss and that "while the rights of this admitted terrorist undoubtedly deserve protection, the criminal justice system ought to work for the victims as well."

Thus, to translate this into real English: Regardless of whether Moussaoui actually was a 9/11 terrorist, his trial and execution would be therapeutic for the victims -- not to mention wildly popular for the prosecutors.

It does not matter that, while the government pushes the 9/11 theory in court, other government officials are widely quoted outside of court admitting that he was not the 20th hijacker. Ashcroft appears to be working on a legal version of the string theory of physics in which he can prosecute multiple 20th hijackers in parallel legal universes.

This brings us to the second 20th hijacker.

When the case against Moussaoui began falling apart under a mountain of contradictory evidence, the government announced that it had captured Bin al-Shibh -- who was then labeled the 20th hijacker.

Which brings us to today. Arresting just another old Al Qaeda operative is hardly as newsworthy as arresting the 20th hijacker.

And there is no reason to believe that the proliferation of 20th hijackers will end with the latest disclosure. A recent Washington Post poll shows that 70% of Americans already believe that Saddam Hussein was behind the September attacks. Once he is captured, he could become the fourth 20th hijacker.

Though this is not the first Justice Department to appear to be run by its public relations office, the Moussaoui case moves the matter from common prosecutorial puffery into the category of prosecutorial abuse.

Ashcroft's obsession with executing Moussaoui for the crimes of 9/11 now stands in willful ignorance of both the evidence in the case and the statements of high-ranking officials. It is time to try Moussaoui as a terrorist -- not as a 9/11 terrorist but simply a garden-variety terrorist. It may be a blow to Ashcroft's ego, but it is hardly a loss. After all, we have plenty more 20th hijackers where he came from.

Copyright © 2019, Los Angeles Times
EDITION: California | U.S. & World