[The Government] now pursues only the theory that the "act" which caused the deaths was the defendant's lying to agents on August 17, 2001, a position which it has consistently repeated. The fundamental flaw in the Government's theory is that, under the terms of the Special Findings section of the Superseding Indictment -- and consistent with the statute -- it must prove an "act" by the defendant which resulted in the deaths, not anomission or a failure to act. While lying is an "act," the failure to tell the truth is something quite different.
Because Moussoui was under no obligation to speak with authorities after his arrest, and had a constitutional right not to speak with them, the defense lawyers argue:
By allowing the Government to proceed in this fashion, the Court will violate the notice and indictment requirements of the Sixth Amendment to the United States Constitution and the defendant's Fifth Amendment rights to due process, and not to incriminate himself, as well as the Federal Death Penalty Act itself. Moreover, it will endorse abject speculation as to the content of a conversation between Agent Samit and Mr. Moussaoui which never took place.
They also argue that it is speculation for the Government witnesses to say what Moussaoui would have told them had he decided to speak with them, and that there is no evidence that he would have told them the facts he admitted when pleading guilty.
The FAA witnesses may also not base their testimony on what Moussaoui
"knew" or what he revealed at his guilty plea, because it would be abject speculation for the FAA witnesses to assume, or for the Government to ask the jury to "infer," that, in the absence of lies, Mr. Moussaoui, on August 17, 2001, would have volunteered the information contained in the Statement of Facts, in whole or in part, a statement drafted by the government for an entirely different purpose -- in support of his guilty plea. Mr. Samit has hypothesized what additional questions he would have asked, but neither he, nor we, nor the jury can ever know what Mr. Moussaoui would have said in response...
The defense contends the government knew more than Moussaoui about 9/11 beforehand and the FBI was so inept at fighting terrorism that nothing Moussaoui could have told them would have mattered. Moussaoui has admitted conspiring with al-Qaida to fly planes into U.S. buildings. But he says he was not part of 9/11 and was training as a pilot to fly a 747 into the White House as part of a possible later attack.
Lastly, they allege that the Government's change in theory is contrary to the death penalty statute:
As the defendant noted in his Opposition, the Government's theory would require a judicial rewriting of the statute. 18 U.S.C. § 3591(a)(2)© does not provide for an "act" or "omission" as the basis for death eligibility; it only provides for an "act." The Government cannot rewrite the statute to fit its purposes, nor can it transform the failure to do something, i.e., the failure to tell the truth, into something it is not -- the actual "act" of lying, i.e., confessing or telling falsehoods.
The lawyers are asking the Court to:
amend its Order of March 17, 2006 to preclude testimony by the FAA witnesses based upon the defendant's failure to tell the truth, including information he admitted in connection with his guilty plea.
