Trials and Tribulations of DOJ

Although all commentary has pinned the latest Moussaoui trial debacle on the bizarre incompetence of Carla Martin, a government Transportation Security Administration attorney, Martin’s stunning errors nonetheless point out the weaknesses of the prosecution’s case itself. The prosecutors admitted on Monday that Martin had contacted seven witnesses—four of them potential defense witnesses—relaying details of trial proceedings and discussing strategy as to how to testify and respond during cross-examination. Perhaps her most interesting communication detailed the erroneous testimony of an FBI agent that, prior to 9/11, the bureau was not considering the possibility that airplanes might be used as weapons. He was then acknowledged under cross-examination that the FBI did know of earlier plots to fly airplanes into CIA headquarters and the Eiffel Tower.

All Martin’s witness coaching was considered a violation of Judge Brinkema’s prior order in the case to sequester the witnesses during trial. The judge has now ruled that all aviation testimony will be excluded from the trial. This exclusion constitutes a significant blow to the prosecution, largely because Moussaoui’s connection to the crime is so attenuated. As former Assistant United States Attorney and former Department of Justice Special Assistant Andrew McBride explained on the NewsHour with Jim Lehrer,

“The government's theory is that Moussaoui lied in August of 2001 in a way that set the FBI on the wrong course. The aviation witnesses are there to say, if we had been on the right course, we would have stopped the hijacking of one of those four planes, because we would have undertaken, under FAA procedure existing in September of 2001, procedures that would have stopped at least one of those four flights from being hijacked. And that means Moussaoui is responsible for some of the deaths on 9/11. Without that aviation testimony, it's unclear the government can make that link.”

The judge herself seems to question whether such a theory can hold up as the basis for a death sentence. On Thursday, she opined: “I must warn the government it is treading on delicate legal ground here. I don't know of any case where a failure to act is sufficient for the death penalty as a matter of law." Judge Brinkema had previously eliminated the death penalty as a sentencing option in 2003, after prosecutors refused to allow defense questioning of Al Qaeda witnesses in U.S. custody, but was overruled by the Fourth Circuit.

As Martin’s blunders have once again forced into the spotlight, the prosecutorial arm of the war on terror is a continued failure. Moussaoui’s trial is the only chance they have to obtain a conviction directly tied to the 9/11 attacks, and they are insistent that they will make the most of it. Moussaoui has denied any involvement in 9/11, saying he was training for possible future attacks. The latest acrobatics by the Department of Justice, as they try to put a deranged man to death, marks yet another milestone on the destructive yet aimless path of the government since 9/11.