Judge warns prosecutors on 9/11 trial

The judge in the death-penalty trial of confessed al-Qaida conspirator Zacarias Moussaoui warned prosecutors that they were moving their case into shaky legal territory.

US District Judge Leonie Brinkema said yesterday at the conclusion of the day’s testimony, after the jury had left the courtroom in Alexandria, Virginia: “I must warn the government it is treading on delicate legal ground here.

“I don’t know of any case where a failure to act is sufficient for the death penalty as a matter of law.”

The key issue in Moussaoui’s sentencing trial has been his failure to disclose his terrorist ties to federal agents when he was arrested in August 2001 on immigration violations.

He is the only person charged in the United States in connection with al Qaida’s attacks on September 11 2001 on the World Trade Centre in New York and the Pentagon.

Both sides agree Moussaoui lied to the FBI, but they differ on what Moussaoui was legally obliged to do, given the Fifth Amendment’s guarantee against self-incrimination.

Prosecutors argue that once Moussaoui agreed to talk to federal agents, he was required to tell the truth – to confess his links to al Qaida and his plans to fly a plane into the White House.

The defence argues Moussaoui was not required to confess.

The issue is crucial because, to obtain the death penalty, prosecutors must prove that federal agents would have prevented at least one death on September 11 if Moussaoui had not lied. Their case would be much easier if that means Moussaoui was obliged to disclose his al Qaida membership and terrorist training.

Judge Brinkema made her comments as she rejected a defence motion for a mistrial.

Moussaoui’s lawyers were angry because they believed a question from prosecutor David Novak implied to the jury that the defendant had an obligation to speak to FBI agents even after he had invoked his right to a lawyer two days into questioning by the FBI. Agents immediately stopped questioning him at that point.

Judge Brinkema said she did not feel a mistrial was warranted because she struck Mr Novak’s question from the record as soon as he asked it.

The issue developed as the FBI agent who arrested Moussaoui testified that he suspected the student pilot from France was a terrorist, but Moussaoui’s lies sent agents on ”wild-goose chases” away from his links to al Qaida and Osama bin Laden.

Harry Samit testified that the lies sent agents futilely searching London, the home listed on Moussaoui’s passport, for associates he claimed had given him money, but he never mentioned the alias used by Ramzi Binalshibh, an al Qaida operative, to wire him cash from Germany.

The 37-year-old Frenchman of Moroccan descent did not admit getting money from that operative for almost four years, when he pleaded guilty last April to conspiring with al Qaida to fly planes into US buildings.

The jury will decide whether that guilty plea will put Moussaoui to death or imprison him for life.

Mr Samit said that during his initial 90-minute interview of Moussaoui, he claimed he was taking commercial flight training lessons in Minnesota “for enjoyment and his own personal ego”.

Mr Samit immediately became suspicious of Moussaoui when executives of a flight school in suburban Minneapolis reported a foreign student training to fly a Boeing 747-400 despite having almost no pilot experience.

One of the flight school’s instructors testified that he urged his bosses to call the FBI after his new student responded angrily to innocent questions about his religion and paid for his training in 100 dollar bills.

Instructor Clarence Prevost told the jury he first assumed Moussaoui was a rich guy “just fulfilling a dream”.

But on the first day of class, when Moussaoui, asked whether he was a Muslim, responded with a terse “I am nothing”, Mr Prevost became suspicious.

“I said ‘Should we be doing this?’,” Mr Prevost told the court. “‘We don’t know anything about this guy, and we’re teaching him to throw the switches on a (Boeing) 747’.”