The death-penalty case against al-Qaida conspirator Zacarias Moussaoui went to the jury Wednesday after the prosecution asserted his lies were responsible for deaths Sept. 11, 2001, and the defense argued he had no part in the plot.
The nine men and three women on the jury will decide whether Moussaoui bears blame for at least one death that day. If so, a second phase of the trial will open that will determine whether he deserves to be executed.
The jurors left the courthouse Wednesday afternoon and will resume their deliberations on Thursday and Friday.
If not sentenced to execution, the 37-year-old Frenchman will spend the rest of his life in prison.
Moussaoui watched the closing arguments impassively but shouted “Victory to Moussaoui, God curse America,” during a recess after the judge and jury had left the room. The recess preceded U.S. District Judge Leonie Brinkema’s instructions to the jury.
“Zacarias Moussaoui came to this country to kill as many Americans as he could,” Prosecutor David Raskin said in closing arguments. “He was supposed to fly the fifth plane into the White House. Instead he killed people by lying and concealing the plot ... that resulted in the worst terrorist attack in the country’s history.”
Raskin said that Moussaoui lied “with lethal intent” when he failed to tell federal agents after his arrest in August 2001 about his al-Qaida membership and the plot to kill Americans using hijacked aircraft.
Defense lawyer Edward MacMahon countered that his client was merely an “al-Qaida hanger-on” who had nothing to do with Sept. 11. He accused the prosecution of trivializing bureaucratic blunders that might have prevented the 9/11 plot from being exposed.
Hypothetical situation, defense argues
“Moussaoui was never involved other than in his dreams,” MacMahon said, trying to minimize damage that Moussaoui might have done to himself when he claimed on the stand that he was to have crashed a plane into the White House on Sept. 11.
“The government cannot prove a hypothetical, what would have happened if Moussaoui had not lied,” he said. “We will never know what could have happened in the 25 days between Moussaoui’s arrest and Sept. 11.”
He said of his client: “He’s now trying to write a role for himself in history when in reality he’s an al-Qaida hanger-on.”
Prosecutors contended that if Moussaoui had told the truth after his arrest, investigators could have tracked down 11 of the 19 hijackers. “The FBI would have had the names, the phone numbers, and their addresses in some cases,” Raskin said.
The bottom line, he said, was that “he chose Osama bin Laden, and because of that, 2,900 are dead.”
MacMahon challenged the assertion that Moussaoui had led investigators on a goose chase with his deceptions. He said, for example, that the government had the identities of two of the hijackers 18 months before 9/11 when they were on U.S. soil — men who had been previously under CIA surveillance in Malaysia — and still did nothing.
Of that missed opportunity, he said: “That’s bingo.”
Offer to testify against himself
The arguments followed a disclosure Tuesday that Moussaoui offered last month to testify for prosecutors against himself at his death penalty trial, the firmest evidence yet that the 37-year-old Frenchman was seeking to derail his own defense to try to gain martyrdom through execution.
In a hearing Wednesday morning outside the jury’s presence, prosecutors and defense attorneys argued over fine points of jury instructions and the implications of a hung jury in this phase. Prosecutors want a mistrial declared if the jury does not agree unanimously, which could mean a new trial with a new jury. Defense attorneys argued that result should end the trial with a sentence of life in prison. Judge Brinkema appeared to lean toward the defense argument, but did not immediately resolve the issue.
To win eligibility for the death penalty, prosecutors must prove that Moussaoui’s actions resulted in at least one death on Sept. 11.
According to Tuesday’s testimony, Moussaoui offered in February during a jailhouse meeting with prosecutors to testify for the government that he planned to hijack and pilot a fifth plane on Sept. 11.
FBI agent James Fitzgerald testified that Moussaoui told him — in a meeting requested by the defendant — that he did not want to die behind bars and it was “different to die in a battle ... than in a jail on a toilet.”
Moussaoui dropped his effort to testify for prosecutors after he learned that he had an absolute right to testify in his own defense.
On Monday, he stunned the court by asserting publicly for the first time that he was to fly a 747 jetliner into the White House on Sept. 11, despite having claimed for three years that he had no role in the plot. Instead, he had said he was to be part of a possible later attack.
The February meeting with the prosecution was to have been off the record but was ruled admissible after the defense introduced a partial transcript of Moussaoui’s guilty plea last April.
In that 2005 pleading, Moussaoui said, “Everybody knows that I’m not 9/11 material” and that Sept. 11 “is not my conspiracy.” He said he was going to attack the White House if the United States did not release radical Egyptian cleric Omar Abdel Rahman, imprisoned for other terrorist crimes.
No involvement, al-Qaida operatives say
The defense on Tuesday also presented evidence from two high-ranking al-Qaida operatives that cast doubt on Moussaoui’s claim of involvement in 9/11.
Their testimony supports that of another top al-Qaida captive, Khalid Shaikh Mohammed, chief organizer of the Sept. 11 attacks. He said in testimony read in court Monday that Moussaoui had nothing to do with the Sept. 11 plot, but was to have been part of a later wave of attacks.
