March 20, 2006 -- -- Defense lawyers for Zacarias Moussaoui painstakingly cross-examined FBI agent Harry Samit today about his efforts to obtain a search warrant as he built a case against Moussaoui before the 9/11 attacks.
Moussaoui's lawyers are trying to avoid the death penalty for their client, who pleaded guilty to being part of the 9/11 plot. They have tried to show that government incompetence, not Moussaoui's refusal to divulge details of the attack before it happened, was the reason terrorists were able to carry out their plan.
Samit testified that he was repeatedly prevented from obtaining a search warrant to look at Moussaoui's belongings and laptop computer even though his investigation revealed that Moussaoui was connected to a Chechen terrorist who had al Qaeda connections.
Defense lawyer Edward MacMahon presented the jury with an Aug. 18, 2001, electronic communication Samit wrote to FBI headquarters about Moussaoui and the leads he needed to get a search warrant. Samit, Moussaoui's arresting officer, testified for the prosecution last week but his cross-examination was delayed after allegations of witness tampering by a government lawyer.
Samit testified that senior FBI officials repeatedly denied applications for search warrants and thwarted his efforts to contact the U.S. Attorney's office, because of differing opinions on establishing probable cause for the warrant.
Samit's Aug. 18, 2001, memo mentioned Osama bin Laden three times and repeatedly voiced suspicious that Moussaoui was connected to an international terrorist group.
Samit described the inaction on this electronic communication as "criminal negligence."
The testimony, which pitted a current agent against FBI headquarters, shows legal interpretations about how intelligence information could be handled by FBI agents before the 9/11 attacks. The protocol that barred intelligence investigators from sharing information to bring criminal charges is often referred to as "The Wall."
Intelligence information provided by French officials described Moussaoui as "a cold stubborn man ... a strategist ... that should be surveilled by French authorities," an Aug. 30, 2001, FBI memo noted. "This information was critical to you," MacMahon told Samit.
The French intelligence information linked Moussaoui to the Finsbury Park Mosque in London, where convicted shoe bomber Richard Reid also became involved with Islamic extremists.
The U.S. government finalized a deal with France on Sept. 10, 2001, to deport Moussaoui to his home country, where French authorities would have the authority to search his belongings.
Moussaoui's defense lawyer MacMahon read to the jury excerpts of a Justice Department Inspector General review of the 9/11 attacks titled, "A Review of the FBI's Handling of Intelligence Information Prior to the September 11 Attacks."
Almost 100 pages, a full chapter of the report, deals with Moussaoui and has been withheld from public release by Judge Leonie Brinkema at the request of the defense team.
MacMahon read a section of the report and said that Samit told the inspector general that FBI Supervisory Special Agent Michael Maltbie declined to give him a search warrant on numerous occasions. According to the report, Samit said, "Mike Maltbie's actions turned a significant opportunity to stop 9/11."
In the Aug. 18 communication to FBI headquarters, Samit noted that Moussaoui, "believes it is acceptable to kill civilians" and that he approved of martyrdom. The communication also describes Moussaoui's roommate Hussein Al Attas who was arrested along with Moussaoui on Aug. 16.
Samit testified that he believed that Moussaoui may have been recruiting Al Attas to send him to Pakistan. After his arrest, Al Attas told Samit that he and Moussaoui were going to travel to New York and Washington. "He and Al Attas planned to travel to see sites, including the Statue of Liberty, Empire State and the White House."
"Any part of the United States Mr. Moussaoui was going to go was of great concern to me," Samit testified.
Samit was so concerned and alarmed by Moussaoui that he sent an Aug. 21 e-mail requesting that the Secret Service be informed about Moussaoui's intentions to see the White House and that he was interested in flight training.
Last week, under questioning by prosecutors, Samit said that after his arrest Moussaoui often stated his desire to return to his flight training. "It was a constant theme during our interviews," Samit testified last week.
FBI officials denied Samit's request for a search warrant to search Moussaoui's belongings, but said they should continue an intelligence investigation.
Samit was concerned when Al Attas was released on bail on Aug. 20 and asked that the FBI field office in Oklahoma investigate him further. While he was still in jail, Al Attas' phone conversations from Culver County jail to Moussaoui's imam in Norman, Okla., were recorded.
During one of the calls, Moussaoui's imam from Oklahoma, El Hadi Ndiaye, asked Attas if he was going to undertake jihad, Al Attas told Ndiaye not discuss such things over the phone.
Samit also received a translation of Attas' will, which was found by investigators after Moussaoui and Attas' arrest. Samit said it contained the phrase "death is approaching," which further raised his suspicions.
The jury will watch a video deposition and testimony from Al Attas on Tuesday. Al Attas pleaded guilty in 2002 to lying to federal agents.
MacMahon, Moussaoui's lawyer, laid out for the jury a series of e-mails Samit sent to FBI headquarters and offices in Oklahoma, Paris and London as he tried to run down leads on Moussaoui in order to obtain search warrants in the days leading up to 9/11.
This included an Aug. 17 e-mail from Samit to his superiors at FBI headquarters in which he wrote about Moussaoui's story about training on 747 simulators. "His excuse is weak, he just wants to learn how to do it. ... That's pretty ominous and obviously suggests some sort of hijacking plan," Samit wrote.
Samit continued to raise alarms about Moussaoui and on Aug. 31, 2001, he drafted his own threat assessment about his concerns which noted that Moussaoui and his roommate Al Attas were going to undertake a hijacking.
"Minneapolis believes the Moussaoui, Al Attas and others not yet known were ... [are] engaged in preparing to seize 747s," it said. Although Samit drafted the assessment it was never sent to FBI or Federal Aviation Administration officials since Samit was told by Maltbie that FBI headquarters would inform the FAA.
"You tried to move heaven and earth to get a search warrant to search this man's belongings and you were obstructed," MacMahon said to the agent.
"Yes sir, I was obstructed." Samit replied.
On Sept. 5, 2001, Samit did inform FAA investigators in Minneapolis about his belief that Moussaoui was involved in a hijacking plot. At around the same time, Samit was also in contact with FBI officials assigned to the CIA's Counterterrorism Center as he tried to assemble information to finally get a warrant to search Moussaoui's belongings.
In one particularly chilling e-mail sent to Samit on Sept. 10, 2001, a counterterrorism official identified as "Cathy" noted, "God help us all if the next terrorist attacks involves this same type of plane."
The jury was presented classified government information as Moussaoui's defense invoked the "Silent Witness Rule," which allows information in a classified document to be entered in the evidence and considered by the jury -- but not made public.
The jury was handed copies of document with a red border marked "SECRET." Brinkema told jurors they were "not ever to discuss the contents of this document outside of the deliberation room."
Moussaoui's lawyers have received certain security clearances so they can review the materials, which the government has provided to prepare for Moussaoui's defense.
Although it was not shown to the public, it was revealed under Samit's cross-examination that the information had been disseminated to FBI headquarters prior to the 9/11 attacks. Members of the jury reviewed the document for just a couple of minutes then handed copies of the documents back to a U.S. marshal.