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Slate's Jurisprudence: Moussaoui Trial Resumes


Zacharias Moussaoui said that fighting a holy war is the only way to get to paradise. The jury heard that today in a video taped deposition from his former roommate. Mr. Moussaoui's already confessed to being part of the 9/11 conspiracy. This trial is to determine if he gets life in prison or the death sentence. The prosecution is trying to make the case that if Mr. Moussaoui had cooperated with the government, the terrorist attacks on 9/11 could have been prevented.


Joining us is Dahlia Lithwick. She's legal analyst for the online magazine Slate, and for us here at DAY TO DAY. And Dahlia, yesterday, the FBI agent who arrested Moussaoui testified that he warned his bosses over and over again that they should look more deeply into his terrorist connections, and they essentially ignored this FBI agent. So, didn't his testimony actually boomerang on the government?

Ms. DAHLIA LITHWICK (Legal Analyst, Slate Magazine): Well, it did. I mean, this was his cross-examination, and it was a pretty masterful job. But he did admit under cross that he had called the efforts of his superiors at the FBI and the Justice Department, quote, “criminally negligent” in this investigation. He said that, essentially, his bosses were more interested in protecting their own careers than in stopping terrorists. And it did really shore up the defense's central argument, which is no matter what Moussaoui knew about the plot, the government knew more, they just didn't get it together in time to stop it. And so, in a sense, not only did it boomerang, but it really did shore up Moussaoui's defense, which is if Moussaoui was some how responsible for 9/11, the government may have been more so.

BRAND: And the government is essentially arguing that Moussaoui himself could have prevented 9/11 if he had been honest.

Ms. LITHWICK: It's this very, very tricky conspiracy claim. It's sort of a failure to come forward and tell the truth to the FBI. There's been a little bit of slippage, recently. It's interesting. It stopped being that he lied to the FBI, it's starting to be he failed to tell the truth to the FBI, and that raises a whole host of problems. Not the least of which is this sort of Fifth Amendment problem--does he really have the duty to come forward and incriminate himself? If he fails to do that is he really liable for capital punishment? That's a fairly astonishing stretch of the conspiracy law.

BRAND: Now, this comes on the heals of a huge defeat last week for the government, where the judge in the case, Leonie Brinkema, decided that the testimony of government witnesses in the case was irrevocably tainted. And the reaction from the families of the 9/11 victims, obviously, understandably angry and confused. Some of them have been following this case quite closely, and tell us more about their reactions.

Ms. LITHWICK: This trial has really been called the 9/11 victim's quote, “day in court.” This is supposed to be their closure, their trial. And the government very deliberately set it up that way. The families are watching in six locations, forty family members of victims are going to testify about their loss at the very end of this trial. And as a consequence, whenever there's a misstep, the families are devastated. What seems just a little stumble to the rest of us is just agonizing to these families who've been sort of promised that this was going to bring them some kind of relief. One of the family members described it as like, ripping open the sore over again. Going back and starting at the beginning. So, I think that there is this terrible feeling of betrayal on the parts of the family when the government gets it wrong at the trial.

BRAND: And some of the families also have a civil suit against the airlines involved in the 9/11 attacks. Are the events of last week going to have any impact on that lawsuit?

Ms. LITHWICK: Well, there's been an interesting little side story that's gone on. Carla Martin, the TSA attorney who now stands accused of coaching witnesses and keeping some of the witnesses from the defense and otherwise behaving improperly, was also allegedly sending transcripts to the attorneys who are representing United Airlines and American Airlines in a civil suit. Some of the families in the civil suit are now starting to complain that, in fact, if she had that close a relationship with the airline lawyers, maybe she was not being even-handed in releasing documents.

BRAND: Opinion and analysis from Dahlia Lithwick. She covers the courts for the online magazine Slate, and for us here at DAY TO DAY. Thank you, Dahlia.

Ms. LITHWICK: My pleasure, Madeleine. Transcript provided by NPR, Copyright NPR.