Beverley Lumpkin: Halls of Justice

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.

But one former prosecutor noted, "there isn't a helluva lot of contact with the Eastern District of Virginia" charged in the indictment. That is, except for the attack on the Pentagon, all of the activity charged occurs elsewhere. Most of the defendant's activities took place in Oklahoma and Minnesota.

This former official predicted that the very first defense motion to be filed will be for a change of venue — although they'll probably lose, because, remember, the government always wins in Virginia.

If Moussaoui had been charged with a substantive crime it would have been more difficult to bring the indictment in Virginia. But instead he was charged with six different conspiracy counts — conspiracy to commit an act of terrorism, conspiracy to destroy aircraft, conspiracy to murder U.S. employees, etc. — rather than the actual acts.

With conspiracy crimes the government need only prove the defendant was part of the scheme and that at least one conspirator committed an overt act in Virginia.

Counter-Terrorism Today

The way the FBI conducts terrorism investigations recently was attacked from two almost opposite directions. It's enough to make you think they must be doing something right.

First there was a long piece in the Washington Post that quoted quite a few former FBI senior officials expressing concern and even harsh criticism of the putative new push to prevent terrorist acts by rounding up suspects before they have a chance to act — as opposed to the traditional way of monitoring and infiltrating cells during long-term investigations that eventually result in the rolling up of an entire operation.

Because of the new emphasis on prevention, the supposition underlying the article is that long-term investigations are a thing of the past, replaced by an "aggressive FBI dragnet" championed by the Attorney General John Ashcroft.

The Post says the former officials worry "the Ashcroft plan will inevitably force the bureau to close terrorism investigations prematurely, before agents can identify all members of a terrorist cell. They said the Justice Department is resurrecting tactics the government rejected in the late 1970s because they did not prevent terrorism and led to abuses of civil liberties."

Former Executive Assistant Director Buck Revell is quoted saying, "Ashcroft is essentially trying to dismantle the bureau." Even former Director William Webster weighs in, saying the policy of preemptive detentions "carries a lot of risk with it. You may interrupt something, but you may not be able to bring it down. You may not be able to stop what is going on."

Several other former executives are quoted by name expressing reservations, although at least two of them, including Revell, later complained they had been (you guessed it) quoted out of context.

It's true Ashcroft has stated quite firmly several times since Sept. 11 that he will risk compromising an investigation or prosecution in order to prevent another act of terrorism. But some current FBI officials think the "formers" who spoke to the Post were either taken out of context or are too removed from the current scene to understand what's really going on.

One current official chuckled about "the older generation, that thinks they did everything right." But he pointed out they're on the outside looking in and it's a whole new world nowadays. They compare it to the difference between a "buy-bust" for a small amount of a drug versus dismantling an entire drug trafficking organization. But the threat of terrorism is much more serious than taking a drug deal one notch higher, he argued.

Preventing another horrific attack has to be the highest priority. He somberly revealed, "a lot of people in government realize this country cannot afford another terrorist event." He indicated top government officials actually fear what the public response would be should another major attack occur.

Nevertheless, he argued that not all long-term, painstaking counter-terrorism investigations are being abandoned. It's just that the techniques have had to change and evolve; it's a different world from what the old guys knew. He added, "we won't abandon what's been successful, but you have to prevent terrorism to be successful."

Ironically, within a few days of that story, a research outfit connected to Syracuse University called TRAC (for Transactional Records Access Clearinghouse) was released. TRAC has a reputation for taking law enforcement statistics, analyzing them, and reaching conclusions that many in law enforcement consider highly dubious. Its report on Dec. 3 revealed that "only a tiny fraction of FBI terrorism investigations in the last five years resulted in the bureau actually requesting a prosecution."

TRAC noted that the FBI says it conducts more than 10,000 counter-terrorism investigations per year, but "the data show that in the year ending Sept. 30 all of the nation's investigative agencies together asked for the prosecution of only 463 individuals" for terrorist activities. TRAC concludes, "the gap between reported investigations and referrals for prosecution would appear to document a major challenge facing law enforcement in its attempts to prevent terrorism and punish terrorists."

One FBI official said it's not at all surprising there should be a huge gap between investigations and prosecutions, because when it comes to counter-terrorism, "we don't disregard any report that comes to us. Everything is taken very seriously. We look into everything."

But many of the reports don't necessarily result in prosecutions. He brought up the Washington Post story about how the bureau is supposedly "rolling up all these people and not tracking them," but said those guys haven't been around and they're not privy to what's happening now.

In fact, he said, TRAC confirms the bureau's new "aggressive counter-terrorism approach. We fully expect the disparity between the investigations and prosecutions to become larger. This is a positive indicator of the extent of the prevention efforts now under way."

Again he emphasized that both because they don't pan out and because some may involve sensitive national security matters, many terrorism investigations never see the light of day and certainly don't turn into prosecutable cases. But that does not justify the conclusion that either investigators or prosecutors are somehow failing to do their jobs properly.

Send in the Clowns

On Dec. 6, when he testified before the Senate Judiciary Committee, Ashcroft, in response to one question about the president's order creating a war crimes commission, explained it's designed to deal with acts of war.

Raising the specter of the inconceivable, he added, "Now, when we come to those responsible for this, say who are in Afghanistan, are we supposed to read them the Miranda rights, hire a flamboyant defense lawyer, bring them back to the United States to create a new cable network of Osama TV or what have you, provide a worldwide platform from which propaganda can be developed?"

At the press conference announcing the Moussaoui indictment, the CBS producer reminded him of that and asked, "Aren't you now going to see a very long, expensive trial, since Moussaoui will be afforded two defense lawyers since he's facing the death penalty?"

Actually, within just two days there are signs the media circus is already shaping up. Moussaoui's mom has reportedly hired a French female attorney who is said to be engaged to marry notorious terrorist Carlos the Jackal.

The French government has suggested it simply will not allow one of its nationals to face the death penalty in the U.S. And following the defendant's removal hearing in New York Thursday afternoon, ABCNEWS' Ellen Davis reports, attorney Donald duBoulay offered several rather lugubrious comments, including that the defendant is resigned to his fate and has suffered terribly during his solitary confinement.

The best, however, was that he demanded the fee Moussaoui is supposedly owed for having been a material witness — and revealed the defendant's plans to forward said fee to the orphans of Afghanistan and Chechnya.

Beverley Lumpkin has covered the Justice Department for 15 years for ABCNEWS. Halls of Justice appears every Saturday.