How the Moussaoui Case Crumbled

When Zacarias Moussaoui was enrolled in flight school in Eagan, Minn., he could have easily looked up in the sky to see the kind of airplane he wanted to fly. Along the approach to the Minneapolis-St. Paul airport, 747s screamed overhead day and night. His flight instructor at Pan Am International Flight Academy found Moussaoui genial but clueless and totally unable to explain why he wanted to pilot a 747. The school's administration called the FBI, and he was arrested nearby on Aug. 16, 2001. When investigators interviewed the 33-year-old French Moroccan and asked him whether he planned to use a plane for a terrorist attack, he either did not answer or asked for a lawyer, according to different sources familiar with the session. He was then held for overstaying his visit to the U.S.

Less than a month after he was locked up, 19 al-Qaeda operatives boarded four commercial jetliners and turned them into aerial bombs, killing more than 3,000 people in the worst terrorist attacks ever on U.S. soil. Within days, investigators began piecing together intriguing parallels between Moussaoui's actions and those of the hijackers. He had come to the U.S. to attend flight school, just like the hijackers; he too had purchased knives; he too possessed flight manuals for commercial jets. Three months to the day after the attacks, Attorney General John Ashcroft proudly announced a showstopping list of conspiracy charges against Moussaoui--who the government strongly hinted was the missing 20th hijacker--calling the indictment "a chronicle of evil." He was--and remains--the only person in the U.S. charged in connection with 9/11.

Nearly two years later, the government's case, which had been billed as a slam dunk, is a shambles. On Oct. 2, U.S. District Judge Leonie Brinkema said prosecutors could not seek the death penalty for Moussaoui and could not even allege that he had a link to the 9/11 conspiracy. She put those shackles on the government's case because it had denied the defendant, on national-security grounds, access to witnesses who were in a position to say whether he was part of the 9/11 gang--Ramzi Binalshibh, Khalid Sheikh Mohammed and other key al-Qaeda figures the U.S. has captured. Prosecutors are appealing the decision, with their first briefs due this week. But if they lose, they may be stuck with a precedent that would allow defendants access to avowed terrorists, perhaps inspiring the government in the future to try all such cases in military tribunals. Unless Moussaoui's prosecutors yank the case into a tribunal, it would mean that they would have to pursue much reduced charges. Instead of proving Moussaoui to be an actor in a plot that murdered thousands, they would have to accuse him of simply being a me-too schemer whose efforts went nowhere.