Moussaoui trial, the first in US over 9/11, surprised everyone, confounded predictions

First US trial of 9/11 case was full of surprises

ALEXANDRIA, Va. — Zacarias Moussaoui was a clown who could not keep his mouth shut, according to his old al-Qaida boss, Khalid Shaikh Mohammed. But Moussaoui was surprisingly tame when tried for the 9/11 attacks — never turning the courtroom into the circus of anti-U.S. tirades that some fear Mohammed will create at his trial in New York.

And that wasn’t the only surprise during Moussaoui’s six-week 2006 sentencing trial here — a proceeding that might foreshadow how the upcoming 9/11 trial in New York will go.

Skeptics who feared prosecutors would be hamstrung by how much evidence was secret were stunned at the enormous amount of classified data that was scrubbed, under pressure from the judge, into a public version acceptable to both sides.

Prosecutors were surprised when they failed to get the death penalty — by the vote of one juror.

No one was more surprised than Moussaoui himself: At the end he concluded an al-Qaida member like him could get a fair trial in a U.S. court.

“I had thought that I would be sentenced to death based on the emotions and anger toward me for the deaths on Sept. 11,” Moussaoui said in an appeal deposition taken after he was sentenced to life in prison. “(B)ut after reviewing the jury verdict and reading how the jurors set aside their emotions and disgust for me and focused on the law and the evidence … I now see that it is possible that I can receive a fair trial.”

All that suggests the dire predictions of critics and confident assertions of proponents should be viewed skeptically as prosecutors prepare to put Mohammed, the professed mastermind of the Sept. 11, 2001, attacks, and four of his alleged henchmen on trial in a civilian federal court.

The five had been headed for a military tribunal at the U.S. naval base at Guantanamo Bay, Cuba, until Attorney General Eric Holder announced last week he would charge them in civilian court and expects to seek the death penalty.

U.S. District Judge Leonie Brinkema, who presided over Moussaoui’s trial — the first in this country over 9/11 — believes it proved federal courts can handle terror cases: “I’ve reached the conclusion that the system does work,” she said in 2008.

The first lesson from Moussaoui’s case: Don’t expect a speedy trial.

Moussaoui was charged in December 2001 with conspiracy for his role. The case churned through years of pretrial hearings and appeals as judges sought to balance national security with Moussaoui’s constitutional rights, often over what evidence could be used.

Documents later introduced at trial showed Moussaoui and Mohammed were well acquainted and Mohammed told interrogators he planned to use Moussaoui as a pilot for a second wave of hijacked jetliner attacks — plans that were eventually aborted. But Mohammed considered Moussaoui a problematic operative, who took instructions poorly and recklessly ignored directions to minimize communications.

Eventually, in 2005, Moussaoui pleaded guilty to conspiring with the Sept. 11 hijackers. Under the complex rules for federal death penalty cases, a separate sentencing trial was held in 2006 to determine whether Moussaoui would lose his life or spend the rest of it in prison. In the first phase, jurors concluded Moussaoui’s actions were eligible for the death penalty, but in the second phase they spared his life — thanks to a lone holdout juror.

During the long run-up to trial, Moussaoui’s abusive tirades in handwritten motions and outbursts in hearings created concerns the jury trial would devolve into chaos. Brinkema threatened to lock him in a separate room watching by video if he tried that.

Mindful of that threat, Moussaoui sat quietly at his separate table flanked by deputy marshals. On the few occasions he was called upon to speak, Brinkema kept him tightly on topic.

His theatrics were confined to one-liners — like “Victory for Moussaoui! God curse you all!” — that he tossed off to spectators as he left the courtroom after the jury departed for lunch or the day.

In military tribunal hearings at Guantanamo, Mohammed also showed a propensity for grandstanding. In one letter released by that tribunal, he referred to the attacks as a “noble victory” and urged U.S. authorities to “pass your sentence on me and give me no respite.”

One of Moussaoui’s lawyers, Edward MacMahon, isn’t worried about Mohammed’s behavior in court. “Federal judges deal all the time with defendants who try to disrupt cases,” he said.

MacMahon, himself the target of some of Moussaoui’s epithets, said he thought the trial “was a very dignified process.”

Lead prosecutor Rob Spencer, now with Lockheed Martin Corp., said the Moussaoui trial allowed the public to see that Moussaoui took pride in the terror created by the Sept. 11 attacks on New York and Washington.

“A valuable part of the Moussaoui trial was that we got an unvarnished, public view of this guy … of what we’re up against” in dealing with al-Qaida terrorists, Spencer said.

Sorting through classified evidence should be easier in the upcoming case, experts said. First, the Moussaoui case generated detailed appellate rulings to guide lower courts. Second, much that was highly sensitive in 2003 may be far less so now.

On the other hand, there was no allegation Moussaoui was tortured into confessing, but coerced confessions or statements might be significant at Mohammed’s trial. U.S. civilian courts bar evidence obtained under coercion, which could exclude what Mohammed told investigators after, as the Justice Department has acknowledged, he was waterboarded 183 times.

But there are also statements Mohammed made much later bragging about his role, and statements by others subjected to less harsh interrogation methods that fewer people consider to be torture, so there’s grist for much legal argument.

Paul McNulty, U.S. attorney here when Moussaoui was prosecuted, said there is a crucial difference in the two cases: Moussaoui pleaded guilty, so the sentencing trial focused only on his punishment and there was no chance he’d go free. No one knows whether any New York defendants will contest their guilt.

McNulty wondered whether the public is willing to accept the chance of an acquittal.

McNulty expects New York judges to be as tough as Brinkema on issues like ensuring defendants access to witnesses. “It could get complicated very quickly,” he said.

“It’s not supposed to be easy,” defense counsel MacMahon said. “The law makes it very difficult to obtain a death sentence. The government basically has to pitch a perfect game to win a death penalty.”

Barakat and Sniffen, who reported from Washington, covered Moussaoui’s trial.