The Washington Post

Judge in major 9/11 trial says terrorists should be tried in U.S. civilian court.

Military tried and failed to prosecute Moussaoui; alleged planners languish

- BY TOM JACKMAN

Three months after the terrorist attacks of Sept. 11, 2001, one member of al- Qaeda was indicted in federal court in Alexandria: Zacarias Moussaoui, arrested in Minnesota a month before the attacks after training as a commercial jet pilot. And soon after Moussaoui’s indictment, according to former assistant U.S. attorney Rob Spencer, the federal prosecutor­s were visited by a team of military prosecutor­s.

“‘Give us all your evidence please,’ ” Spencer recalled the lead military prosecutor telling him. “‘Look, everybody knows you’re not going to be able to do this, and we’ll have him charged, convicted and executed before you even get going.’ We declined politely to do that,” Spencer said. He said another military prosecutor returned three years later and told him, “‘We have no idea what we’re doing in prosecutin­g terrorists, so could you help us?’ ”

Moussaoui was tried in Alexandria, and a federal jury sentenced him to life without parole in 2006. But every other al- Qaeda defendant held in Guantánamo Bay for alleged roles in the Sept. 11 attacks has yet to face a trial, 20 years later.

In a rare public appearance with Spencer and Moussaoui defense attorney Edward Macmahon, Moussaoui’s trial judge Leonie M. Brinkema said that the case was a perfect example of why terrorism cases should be tried in civilian court rather than before military tribunals.

“It’s just amazing to me that the rest of the culprits in this case have not been brought to justice,” U.S. District Judge Brinkema said Thursday. “I think our approach to terrorists should be really an approach to criminals. They shouldn’t get any heightened respect or treatment. They’re thugs, they’re criminals, they created mayhem. . . . The federal courts are fully capable of handling these cases, and in my view there’s no good reason why they have not been brought. And justice calls out for this.”

Brinkema, Spencer and MacMahon spoke in a virtual panel convened by acting U.S. attorney Raj Parekh of the Eastern District of Virginia to “share the lessons of the Moussaoui case, but also to recognize and reflect upon the role of the justice system in responding to the tragic events of 9/11.”

Macmahon agreed with Brinkema about prosecutin­g those defendants, including alleged mastermind Khalid Sheikh Mohammed, in civilian court, saying, “It’s really sad to me that we have not had a full accounting of 9/11, which is what a trial of Khalid Sheikh Mohammed and the others would be.”

Brinkema revealed that she had consulted with the judge who oversaw the 1997 trial of Oklahoma City bomber Timothy McVeigh to discuss running an internatio­nally watched case and that she wanted to allow an audio simulcast of the trial so the public could hear it — but federal court rules didn’t allow it. She also thought the defense had put on a strong case in trying to save Moussaoui from the death penalty when it argued that the jury might find that law enforcemen­t and the intelligen­ce community had failed to put the pieces together after arresting Moussaoui before the hijackings.

“And then Moussaoui took the stand,” the judge said, “and blew the defense out of the water” by repeatedly expressing his joy at the deaths of nearly 3,000 people on 9/11 and the subsequent suffering of untold millions.

Spencer, now working in the private sector, pointed out that prosecutor­s never claimed that Moussaoui was “the 20th hijacker,” after 19 hijackers were identified as having flown planes into both of the World Trade Center towers, into the Pentagon in Arlington, and into the ground outside Shanksvill­e, Pa., after being attacked by passengers.

“That was invented by the media, or maybe at Main Justice,” Spencer said. He said the actual planned 20th hijacker was denied entry into the United States a month before the attacks.

Moussaoui, now 53, had entered the country on a student visa, took small-plane flight training in Oklahoma, then moved to Minnesota to train on a jumbo jet. His actions raised suspicions with the instructor­s, and he was arrested in August 2001. “Our theory of the case was that Moussaoui was a backup pilot,” Spencer said, approved by Osama bin Laden personally to travel and train in the United States, and funded with $10,000 from an al- Qaeda operative in Germany.

Moussaoui was culpable because “he purposely lied about what he knew to allow his brothers to carry out the operation, which they did with devastatin­g and tragic results,” Spencer said. “Had he not affirmativ­ely lied, we would have been able to stop the attacks.”

Prosecutor­s began building their case in 2002. Moussaoui chose to plead guilty in 2005 to conspiracy charges and go to trial simply on the issue of whether he should be put to death. A jury was selected to make two decisions: Did Moussaoui’s lies cause the death of people on 9/11, making him eligible for the death penalty, and if so, should he be executed? The trial began in March 2006, with prosecutor­s putting on extensive evidence of the planning and execution of the hijackings and Moussaoui’s actions before his arrest.

Moussaoui sought to call some of his co-defendants, namely Mohammed and alleged planner Ramzi Binalshibh, as witnesses. The U. S. intelligen­ce community balked, and the issue was fought all the way to the Supreme Court, which ruled against Moussaoui.

Instead, Brinkema said she was instructed to create summaries of what the co-defendants had told U.S. interrogat­ors. “I thought it put the defense at such a disadvanta­ge,” the judge said, “that they couldn’t have the live witnesses here.” She said there was a request to do video deposition­s of the co-defendants, but they were still in the secret “black sites” being interrogat­ed in other countries.

“It was a capital case,” Brinkema said, “and it went right to mitigation. It was critical.” Instead, “I wound up drafting those statements” of what Mohammed would have said if questioned. “I don’t know if there’s ever been any time before where a judge was asked to actually put together the statement a person would be making.”

Macmahon said though his client had a constituti­onal right to informatio­n and due process, which was balanced against the idea that “if Khalid Sheikh Mohammed came to court and sat in the chair and waved and said hello to Moussaoui, Moussaoui would get the death penalty.”

Spencer said he would have loved to cross-examine Mohammed or Binalshibh. But if the defense had won that request, Spencer said, “the [military] helicopter­s would have come and taken Moussaoui to a military tribunal.”

The jury found Moussaoui eligible for death. That led to the sentencing phase, where more than two dozen victims testified about their loss, about speaking to their loved one before they died, about the medical trauma they suffered after surviving.

“It was like going to five or six funerals a day,” Macmahon said.

“It was hard not to show emotion,” Brinkema said. “At one point I could taste blood in my cheeks because I was biting hard to make sure, as a judge you absolutely can’t show that you’re being emotionall­y affected by what’s going on. But it was tough. These were human beings. And some of the heroism, people running back up the stairs before the buildings crashed to try to help others — just unbelievab­ly compelling stories.”

The jury voted 11-1 in favor of execution. But the verdict had to be unanimous, and Moussaoui was spared, given a life sentence without parole. After he was sentenced, he filed a motion to withdraw his guilty plea, and Brinkema quoted from it as proof that terrorists can be tried in civilian court.

“I was extremely surprised when the jury did not return a verdict of death,” Moussaoui wrote in 2006, but he realized “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 even with Americans as jurors. . . . I wish to withdraw my guilty plea and ask the Court for a new trial.”

Brinkema said no. She remains on the bench in Alexandria.

“I think our approach to terrorists should be really an approach to criminals. They shouldn’t get any heightened respect or treatment. They’re thugs, they’re criminals, they created mayhem.”

U.S. District Judge Leonie M. Brinkema, explaining her reasoning on why civilian courts should handle terror cases. Brinkema oversaw the trial of Zacarias Moussaoui, an al-qaeda member sentenced to life without parole in 2006. Other al-qaeda defendants in Guantánamo Bay have yet to face trial.

 ?? DANA VERKOUTERE­N/ASSOCIATED PRESS ?? In a courtroom artist’s rendering, Zacarias Moussaoui, right, argues his case before U.S. District Judge Leonie M. Brinkema on Feb. 14, 2006. Moussaoui was arrested in Minnesota a month before 9/11.
DANA VERKOUTERE­N/ASSOCIATED PRESS In a courtroom artist’s rendering, Zacarias Moussaoui, right, argues his case before U.S. District Judge Leonie M. Brinkema on Feb. 14, 2006. Moussaoui was arrested in Minnesota a month before 9/11.

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