On the eve of his death penalty trial last month, Moussaoui met with prosecutors and offered to testify for them in exchange for better jail conditions before he was put to death, jurors were told late yesterday. The al-Qaeda operative withdrew the offer when he realized he had the right to testify on his own behalf and when prosecutors insisted that he also tell them about other terrorist plots.
"Have you ever heard of a defendant in a capital case offering to testify against himself?" defense attorney Edward B. MacMahon Jr. asked an FBI agent who took the stand after the news was revealed to the jury.
"No, not in my experience," said agent James M. Fitzgerald.
It was the latest bizarre turn in a trial that is expected to go to the jury today. Before defense attorneys rested their case that Moussaoui is not eligible for the death penalty, jurors heard testimony that one of Moussaoui's terrorist bosses thought he was "not right in the head" -- and that several disputed Moussaoui's testimony that he was supposed to crash a hijacked airplane into the White House on Sept. 11, 2001.
In an effort to save Moussaoui's life, his attorneys ended their case by trying to discredit their client. They told jurors that Moussaoui had said the opposite when he pleaded guilty last year to conspiring with al-Qaeda, insisting then that he was "not 9/11 material."
Prosecutors responded by coming to the defense of Moussaoui, whom they have been trying to execute over his role in the deadliest terrorist attack in U.S. history. They introduced evidence of the meeting Moussaoui requested four days before jury selection began in the trial.
Moussaoui, whose attorneys have vehemently objected to allowing him to take the stand, said he would testify for prosecutors about his plan to fly a fifth hijacked plane into the White House. In exchange for incriminating himself, he did not ask that his life be spared.
"He wanted better jail time between the time he was given a death sentence and the time he was executed," Fitzgerald told jurors. He said the meeting, described as civil, ended when prosecutors told Moussaoui he had an "absolute" constitutional right to testify.
It was unclear how jurors, some of whom were taking notes as they left the courtroom, would view the development. Prosecutors hope it reinforces that Moussaoui was telling the truth when he testified about his role because he would have told prosecutors the same thing. Moussaoui's defense appeared to be trying to signal to jurors that Moussaoui is untrustworthy and cannot be believed.
Moussaoui testified Monday that he was supposed to hijack a fifth plane Sept. 11 and attack the White House with a crew that included Richard Reid, the "shoe bomber." He also admitted to a key part of the government's case: that he had lied to the FBI when arrested in August 2001 to allow the Sept. 11 plot to go forward.
Even the judge indicated that Moussaoui's testimony may resonate with the jury. U.S. District Judge Leonie M. Brinkema, who threw out the death penalty in the case in 2003 before being overruled, declined a defense motion yesterday to toss it again.
"This case changed dramatically with Mr. Moussaoui's testimony," Brinkema said out of the presence of jurors.
Defense attorneys spent much of yesterday trying to overcome the damage Moussaoui had done to his case with his testimony. Even if Moussaoui was telling the truth about his role, his admissions did not address a fundamental part of the government's case -- that Sept. 11 could have been thwarted if Moussaoui had told the truth. Defense lawyers tried to hammer that point home -- that the government had plenty of warnings but could not stop it -- to the jury yesterday before resting their case.
Closing arguments are scheduled for this afternoon. If jurors find Moussaoui eligible for death, a second phase of the trial will determine whether he will be executed. Moussaoui, 37, pleaded guilty last year and is the only person convicted in the United States on charges stemming from Sept. 11.
In trying to overcome the image of Moussaoui calmly telling jurors Monday how he wants every American to die and rejoiced about the Sept. 11 attacks, defense attorneys returned to one of their core arguments. They introduced more evidence showing that the government could not stop the attacks, despite all the warnings, because of a pre-Sept. 11 mind-set. The defense argues that Moussaoui's information about the plot would not have helped.
Moussaoui's defense read into the record portions of the July 2001 "Phoenix memo," written by an FBI agent in Arizona, warning of suspicious individuals taking flight training in the United States, as the Sept. 11 hijackers did. The memo was not shared with the CIA or aviation and immigration authorities, and it generated little interest among top FBI officials.
The defense also showed the jury videotaped portions of then-national security adviser Condoleezza Rice's testimony before the independent commission that investigated the Sept. 11 attacks. At one point, Rice was asked by a commissioner whether Moussaoui's information could have helped stop the attacks, as prosecutors have argued at the trial.
"I do not believe it is a good analysis to go back and presume that somehow we would have gotten lucky by going back and shaking the trees," Rice said. Prosecutors have argued that if Moussaoui had told the FBI about al-Qaeda's plans, the FBI would have scrambled and alerted federal aviation officials, who would have boosted security at the nation's airports.
The captured al-Qaeda members whose testimony was read to the jury did not speak highly of Moussaoui. Nurjaman Riduan Isamuddin, who is known as Hambali and was the chief strategist for a South Asian terror group with ties to al-Qaeda, said he worked with Moussaoui in Malaysia in 2000 and believed he was "very troubled, not right in the head."
Hambali, who was captured in 2003, told interrogators that Moussaoui "managed to annoy everyone he came in contact with." That drew a smile from Moussaoui, who otherwise did not visibly react to the testimony.
Mustafa al-Hawsawi, the financial and travel planner for Osama bin Laden's organization, said he saw Moussaoui at al-Qaeda training camps in Afghanistan but never helped him with flight arrangements to the United States -- as he did for the other hijackers who brought down the World Trade Center, damaged the Pentagon and crashed a plane into a field in Pennsylvania.
The statements, which were read to the jury by defense attorneys, climaxed a court battle that delayed the case for more than two years. Brinkema granted Moussaoui's lawyers access to a number of al-Qaeda detainees they said could help his defense. The government refused to produce them, for national security reasons, and a federal appeals court eventually said the detainees would not testify.
Instead, the court said, the statements they gave to interrogators would be read to the jury.