We think Moussaoui's conduct at his aborted plea hearing where he tried to plead guilty to being a part of Al Qaeda, but not to the September 11 attacks, was for real. Criminal defense lawyers see this all the time. Defendants will get to a certain part of the plea hearing, namely the part where they have to acknowledge the "factual basis" for the crime, and even though they want to plead guilty and they can admit they are guilty, they balk. They just won't admit to committing some aspect of the offense that is included in the plea agreement or Indictment-- because, according to them, they didn't do it. With a patient judge and prosecutor, and some rearranging of words, sometimes they get past it. Sometimes they don't. We've never seen a defendant who wanted to plead guilty lie at this juncture. And thus we believe Moussaoui did not participate in the 9/11 attacks-- and was never meant to, even though he may have known about them and been in support of them.

Which brings us back to Mr. bin Al-Shibh. In an article in the Sept. 9 London Times, "Slip of tongue in interview betrays secret that bin Laden is dead" by Dominic Kennedy (no longer available for free online but available at Lexis, and reprinted in large part below, Mr. Kennedy recounts a recently televised interview from June that bin al-Shibh gave to al-Jazeera television network journalist Yosri Fouda about the events of Sept. 11. With al-Shibh was another self-professed Al Qaeda member, Khalid Sheikh Mohammed, who reportedly is the cousin of Ramsy Yousef, now in jail in the U.S. for the 1993 WTC attacks.

"A slip of the tongue by one of Osama bin Laden's top henchmen seems to have betrayed al-Qaeda's most potent secret: its charismatic leader is dead."

"The blunder was made by Khalid Sheikh Mohammed, who has confessed to being the operational mastermind behind the September 11 attacks. He made his mistake while disclosing many of the secrets behind the atrocities, which were plotted in Kandahar, the religious extremist Taleban movement's Afghan spiritual home."

"The target of the fourth, thwarted hijack attack in Washington was Congress, not the White House; the original plan was to crash aircraft into atomic power stations; and the plotters used simple codes to keep in touch by internet, he disclosed. Mr Mohammed was speaking in a propaganda exercise organised by al-Qaeda in time for the first anniversary of September 11."

"A television journalist from al-Jazeera, the Arabic satellite television station that has previously broadcast exclusive footage of bin Laden, was blindfolded and taken to meet two al-Qaeda chiefs. "

"During two days of interviews, Mr Mohammed referred to bin Laden, who has not been seen since the fall of Afghanistan's Taleban regime, in the past tense. The reporter Yosri Fouda, London bureau chief for al-Jazeera, concluded that bin Laden is now likely to be dead."

"The journalist was taken to the Pakistan city of Karachi, driven five miles into the countryside, blindfolded, then brought to a clandestine rendezvous on the fourth floor of a sparsely furnished flat. He believes that it was in Karachi."

"There he met Mr Mohammed and Ramzi bin al-Shibh, a former flatmate of Mohamed Atta, the hijack ringleader. Mr bin al-Shibh is a suspect in the bombing of the USS Cole, when 17 sailors were killed in the port city of Aden in Yemen in October 2000. He described himself as head of al-Qaeda's military committee. "

"The two men spoke of September 11 as "Holy Tuesday". They described the attacks using the Arabic word ghazwah, which means a raid against enemies of the Prophet, Mr Fouda wrote in The Sunday Times."

"It had taken 2 years to plan the attacks, the men disclosed. Al-Qaeda's military committee had decided there must be a "martyrdom operation" inside America. Nuclear targets were the first choice, but they were ruled out for now, Mr Mohammed said. "

"The hijackers were recruited from al-Qaeda's "Department of Martyrs", which still has scores of volunteers for future suicide attacks, the men claimed."

"Atta, an al-Qaeda sleeper agent studying town planning in Hamburg since 1992, was chosen as a pilot and Nawaf al-Hazemi as his second-in-command. Mr bin al Shibh wanted to be the twentieth hijacker. He applied for a visa for flight training three times, but was turned down on security grounds. Questions are likely to be asked over whether alarm bells should have sounded in the United States over such a suspicious individual being so keen to go to America to learn to fly. "

"The leading hijackers were summoned to Kandahar for a shura or council meeting. Four advance reconnaissance units were sent to America. "

"The chosen pilots enrolled in US flight schools. Meanwhile, young Saudi volunteers were picked to act as "muscle" in the hijacking of the aircraft. "They knew it was a martyrdom operation, but did not know the details," Mr Mohammed said. "

"As investigators have long suspected, the plotters did use the internet to communicate, the men confirmed. Using a chatroom, Atta sent messages in German from America, posing as a student, to "Jenny", his fictitious girlfriend. The real recipient was Mr bin al-Shibh. "

"In al-Qaeda's code the World Trade Centre was "the faculty of town planning" (Atta hated skyscrapers, preferring traditional Islamic architecture), the Pentagon was "the faculty of fine arts" and Congress was the "faculty of law". In a final telephone call Atta told Mr bin al-Shibh the chosen date for the attacks. "

"Two sticks, a dash and a cake with a stick down", he said, meaning 11/9. The news reached bin Laden on September 6, giving him only five days' warning of the horrors. "

"Mr Mohammed's slip of the tongue about bin Laden's demise was a serious lapse. Throughout their discussions with the reporter, al-Qaeda operatives persistently sought to suggest that their leader was still alive, well and keenly following events. ........." (emphasis supplied by us)

Back to today...Germany has had an arrest warrant out for bin al-Shibh for some time. But the U.S. has taken custody of him, presumably to bring him here. Why? As the Washington Post article (link at the top of this post) says:

"The United States can now indict him or bring him before a military tribunal, but it is unlikely that he will be handed over to the Germans. Germany has refused to provide evidence for the trial of another Sept. 11 suspect, Zacarias Moussaoui, unless it receives guarantees that the evidence would not be used to secure the death penalty."

"If Binalshibh were transferred to German custody, the same issue would arise if the United States later sought his extradition or sought to use evidence he could provide for the prosecution of other capital cases, including Moussaoui's."

Our best guess is that bin al-Shibh will land in Virginia and charges will be brought against him there. And that ultimately the Government will seek the death penalty against him, which would not be possible if he were tried in Germany.

The Government likely will seek to charge bin al-Shibh with conspiracy to commit the Sept. 11 attacks. We have no idea if he will also be charged with the U.S.S. Cole attack. Assuming he is not going to be charged with the U.S.S. Cole bombing now, we wonder whether the Government will seek a Superseding Indictment in the Moussaoui case adding Binalshibh as a co-defendant. Of course, this would delay Moussaoui's trial indefinitely as bin al-Shibh's lawyers will need a lot of time to get up to speed to the case. On the other hand, it would likely save the Government a lot of money by not having to conduct two trials based on the same event--the Sept. 11 attacks. The relatives of the victims of the 9/11 attacks wouldn't have to be put through the ordeal of testifying twice (we think it likely that the government will call some of them to provide "victim-impact" testimony for any death penalty phase.) And government investigative witnesses would only have to testify once.

If the Government charges bin al-Shibh separately, it may be an acknowledgement that the evidence against two men is not the same and that Moussaoui was not intended to be a replacement 20th hijacker. Under what theory would Moussaoui be liable for the 9/11 attacks if he did not participate in them or plan to participate in them? What does that do to the Government's case against Moussaoui?

We don't mean to suggest that we accept the Government's theory that bin al-Shibh was to be the original 20th hijacker. We are not confident that there were final plans for a 20th hijacker. Bin al-Shibh is innocent in our eyes, as he is in the eyes of the law, at this juncture. What we are trying to figure out is how he affects the upcoming trial of Moussaoui--does he complicate it for the Government? Does he make it easier?

We have always thought Moussaoui has a defensible case because there has been no evidence made public that we are aware of to indicate that he actually participated in or intended to participate in the Sept. 11 attacks. We also think he has a strong argument (although in these times, not necessarily a winning one) against the imposition of the death penalty if he didn't participate in the attacks.

So we'll have to wait and see how this plays out, but we will be following Mr. bin al-Shibh's case closely.