One FBI agent complained to me that the Zacarias Moussaoui indictment handed up Dec. 11 (and what an amazing coincidence it was that everything just happened to fall into place on the three-month anniversary of the Sept. 11 terror attacks) seemed "kind of thin."
It's certainly true that direct contact between Moussaoui and the hijackers is conspicuous by its absence in the indictment.
But one former prosecutor pointed out that with national security cases there is frequently a lot of concern on the part of the government about how much classified information might have to be revealed at trial.
Although the Classified Information Procedures Act (CIPA) provides a process whereby the government can avoid the "graymail" that defense attorneys try to practice — that is, forcing the government to drop charges rather than divulge its secrets at trial — the CIPA process is always fraught. Prosecutors can never be certain how a judge will rule when a clever defense lawyer argues his client's constitutional rights demand that he be provided every last scrap of evidence against him.
Thus, an indictment might actually reveal much less than all the information the government actually holds; but out of CIPA concerns the detail is withheld from the charging document. It's a good supposition there is nothing in the Moussaoui indictment that intelligence agencies would be uncomfortable revealing. And should the pre-trial CIPA process go well for the government, the evidence can always be fleshed out more at trial.
Having said all that, defense attorneys will still make a huge deal out of the fact there are no direct contacts alleged with the 19 hijackers. The circumstantial evidence that is piled up is quite strong; the indictment methodically tracks the parallel activities of the defendant with those of the 19. Sometimes it's eerie if not almost amusing.
Whether it's attending the same flight schools, inquiring about crop-dusting, joining a gym, or buying knives, Moussaoui carefully followed in the tracks laid by Mohamed Atta, who is thought to have piloted American Airlines Flight 11 when it hit the World Trade Center, and his henchmen.
One former prosecutor was particularly struck by the fact that Moussaoui even ordered his flight deck videos from the same pilot store in Ohio as did Atta and Nawaf al-Hazmi.
But defense attorneys will likely try to prove that Moussaoui had innocent reasons for all of the overt acts cited, and that it's merest coincidence that his activities tracked so closely with those of the 19. Those arguments may not be enough to prevent Moussaoui's conviction, but the lack of direct contact could make it more difficult for prosecutors to obtain a death sentence, according to several former prosecutors.
Thus we come to Justice's strategic stroke of genius: bringing the charges in the Eastern District of Virginia, known as the "rocket docket" for the blinding speed with which it disposes of cases, but more importantly known as a jurisdiction where, as one former official put it, "the government always wins."
Moreover, Virginia is second only to Texas in sentencing defendants to death. And finally, the appeals court for Virginia, the 4th Circuit, is considered one of the most conservative in the country and is particularly considered to be "good" — for the government — on CIPA issues.