the Court has seemingly endorsed an expansion of the Government's theory of death eligibility, a theory which has transmogrified "the defendant's lies directly resulted in death" to "the defendant's failure to tell the truth to the FBI when interrogated directly resulting in death." See Order at 2. ("a government aviation witness may testify as to what the United States government 'could' have done to prevent the attacks, had the defendant disclosed in August 2001 the facts that he admitted in pleading guilty") (emphasis added).
Given that the Government's theory of eligibility was not directly the subject of the Government's Motion for Reconsideration, and given its importance to the case, the defendant requests that the Court reconsider the language in its Order that allows government witnesses to base their testimony on the information Moussaoui admitted as part of his guilty plea. As explained below, not to do so would violate the defendant's constitutional rights to notice and indictment by a grand jury, and to due process, as well as the provisions of the FDPA.[Federal Death Penalty Act.]
The defense points out, correctly in my view, that acts and omissions are not the same. The federal death penalty statute allows the Government to seek death for certain acts. It makes no mention of ommissions.
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.
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 make another excellent point: that the witnesses should not be allowed to testify about what the FBI and FAA might have done had they known what Moussaoui admitted during his guilty plea. It is merely speculation because there is no evidence that had Moussaoui decided to speak with them, he would have told them the facts he admitted when pleading guilty.
While there is no docket entry showing a ruling on the motion, I assume it was denied because the witnesses yesterday and today continued to testify about what they would have done if Moussoui had told them the facts contained in his plea agreement. I think this will be a good appellate argument for Moussaoui if he's convicted. He was under no obligation to talk to them at all, so how can what he failed to say be used against him?
I think the defense will continue to try and establish, now through its witnesses, that the government knew more about 9/11 beforehand than Moussaoui did and it was the FBI who dropped the ball. If there was any chance of preventing 9/11, it lay with the Government, not Moussaoui, who didn't even know the date of the attacks, the targeted buildings or the identity of the hijackers.
Moussaoui has admitted conspiring with al-Qaida to fly planes into U.S. buildings. But he was not part of 9/11 and the consensus seems to be that he was training as a pilot to fly a 747 into the White House as part of a possible later attack. Whether or not al Qaeda would have let the bumbling holy warrior participate in a later attack is an open question.
As has been the case all along, Moussaoui is his own worst enemy. Today he shouted in court that he will testify, which is his constitutional right. As the WaPo reports,
...the al-Qaeda operative made it clear in his typically theatrical style that he intends to take the stand. "I will testify, whether you want it or not!" Moussaoui yelled as he was escorted from the courtroom by federal marshals. "I will testify!"
The AP has more today's proceedings:
[Defense lawyer Ed] MacMahon got [FBI Agent] Zebley to acknowledge that nothing in the confession or in FBI evidence gathered since then shows any contact between Moussaoui and the 9/11 hijackers, who lived, trained and traveled together in small groups.
...MacMahon brought out that the CIA knew in March 2000 that two of the 9/11 hijackers - Nawaf al-Hazmi and Khalid al-Mihdhar - had entered the United States in 2000 after attending a conference with Osama bin Laden associates in Malaysia. He showed that the CIA finally told the FBI on Aug. 23, 2001, that the pair were in the United States, and that the FBI sent a message marked "routine" on Aug. 28 asking its New York office to look for them. On Sept. 10, 2001, the FBI New York office asked the Los Angeles office to check for them in hotels there, according an FBI document MacMahon introduced.
"What could have been done if the U.S. government had tracked al-Hazmi and al-Mihdhar in the summer of 2001?" MacMahon asked. "We'll never know, right?" Zebley conceded that point.
The defense called former FBI agent Erik Rigler as its first witness.
[Rigler] summarized a Justice Department inspector general report that criticized the CIA for keeping the al-Hazmi and al-Mihdhar intelligence from the FBI for so long and the FBI for assigning pursuit of the pair to one inexperienced, young agent. It said the pair was on Thailand's watchlist in January, 2000, but not on a U.S. watchlist until August, 2001.
