9/11: The Search for Justice: Part Three: The Trial of Zacarias Moussaoui

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[00:03:48] [SPEAKER_03] I'm Kevin. And today we are going to discuss the trial of Zacharias Moussaoui, the man the media often describes as the 20th hijacker in the 9-11 attacks.

[00:03:58] [SPEAKER_01] Content warning, this episode contains discussion of murder and terrorism, including the murders of thousands of people.

[00:04:07] [SPEAKER_03] We all know how it is supposed to work. If you commit a crime in this country, you get charged, arrested, and brought to trial before a jury of your peers. But, as we discussed in our last episode, 25 years after the attacks of September 11th, we are still waiting for Khalid Sheikh Mohammed, the mastermind of the attacks, to face justice for his actions.

[00:04:32] [SPEAKER_01] In fact, only one person has faced trial for his involvement in the 9-11 plot. That is Zacharias Moussaoui. He was arrested in August of 2001, weeks before the attacks. The media often described him as the so-called 20th hijacker, the implication seemingly being that if he had not been arrested, then he would have been on one of the doomed planes.

[00:04:56] [SPEAKER_03] But is that even true?

[00:04:58] [SPEAKER_01] The 9-11 attacks were arguably the biggest crime that has ever occurred in this country. That makes the Moussaoui trial perhaps the most important trial in our history. But there seems quite a bit about it that people don't fully understand. What exactly was the evidence for Moussaoui's guilt? What did prosecutors believe his role was in the plot? And how did his trial even happen in a civilian court when so many people believed it would be impossible?

[00:05:27] [SPEAKER_03] To get answers to those questions, we went to Rob Spencer, who led the prosecution against Moussaoui. Rob is the former chief of the Criminal Division of the U.S. Attorney's Office for the Eastern District of Virginia. As you will hear, he was at the Pentagon with hours of the attacks and played a critical role in everything that followed.

[00:05:48] [SPEAKER_01] My name is Anya Kane. I'm a journalist.

[00:05:51] [SPEAKER_03] And I'm Kevin Greenlee. I'm an attorney. And this is The Murder Sheet. We're a true crime podcast focused on original reporting, interviews, and deep dives into murder cases. We're The Murder Sheet.

[00:06:03] [SPEAKER_01] And this is 9-11, The Search for Justice, Part 3, The Trial of Zacharias Moussaoui.

[00:06:55] [SPEAKER_03] We really appreciate you being here. And I wanted to start by asking you about something you've said in the past. I saw an interview where you said that being a federal prosecutor is actually the best job that a lawyer can have. And I was curious if you could explain why you felt that way.

[00:07:13] [SPEAKER_02] For a couple of reasons. Thank you. First of all, I think at bottom you're dealing with human drama. Some very interesting fact patterns that affect people. You're on the right side of things. You're protecting citizens of the United States. It's great pride in your stand-up and say you represent the United States. A lot of resources and the ability to bring the cases you believe in. And no obligation to bring any case you don't believe.

[00:07:38] [SPEAKER_02] And you're actually trying cases before a jury and there is a relatively quick beginning and end to the case. It's not like civil litigation drags on for years and years with no court. It's just interesting and in many cases fun.

[00:07:52] [SPEAKER_01] So can you tell us about what your job was in 2001? Where were you on 9-11? And sort of talk us through that day and hearing about these heinous attacks.

[00:08:02] [SPEAKER_02] Yeah, so I was an assistant U.S. attorney. I was chief of the major crimes unit in the Eastern District of Virginia. In our office in Alexandria, Virginia, just across the river from Washington, D.C. The federal courthouse in which we had our offices, there's just a few miles, is just a few miles from the Pentagon. I was in my office and I was waiting to meet an FBI agent who was driving up from Richmond, Virginia, to talk about an extortion case.

[00:08:30] [SPEAKER_02] He called me on the phone and said, Hey, some asshole just flew a plane into the World Trade Tower, so I can't come. I've been called back to the office. And that was the beginning of it. Like I suppose many people, initially I thought somebody in a Cessna, a small single-engine plane, mistakenly flew into the Trade Tower. And then, of course, when the second one happened, I think we all knew it was something greater than that.

[00:08:55] [SPEAKER_03] So my understanding is you actually went to the Pentagon hours after the attack there while it was actually still being processed as a crime scene. Can you talk about why you did that and why it was important for you to be there?

[00:09:09] [SPEAKER_02] So we closed our office. At that point, no one knew whether there were more planes incoming. We closed the office. The courthouse shut down. Ken Nelson, who was the first assisted U.S. attorney, and I were the only ones left. We got picked up by the FBI and taken over the Pentagon. And as you said, they were still processing the scene. The building was still burning. There was a gaping hole inside. One of the things that struck me is that it smelled like jet fuel.

[00:09:36] [SPEAKER_02] And you could see large pieces of a plane with a very distinctive silver American Airlines livery on the side of it. They had the red, white, blue stripes at the outside of the plane with a sort of bright orange. I remember I went walking up right into the gap in the building that was still on fire, sort of looking up at what was happening. And I got grabbed by the back of the neck by very firm hand. Somebody yanked me out of there and saying, are you nuts?

[00:10:05] [SPEAKER_02] It was FBI agent Tom O'Connor who was there. He was dressed in protective clothing. I was not.

[00:10:13] [SPEAKER_03] I've seen some of the pictures of the aftermath of that attack, including the pictures that you used as exhibits in the Moussaoui trial. And some of those images of victims are haunting. How did it affect you to see some of those things that day?

[00:10:36] [SPEAKER_02] It's horrible. But the whole day was sort of a big shock. I think anyone who was in New York or looking at what happened to Ennegan was sort of in shock. We're having somewhat of a surreal experience. People being burned by jet fuel is that horrible things to a body. It's awful to see. I think prosecutors, even though we don't do a ton of murder cases in the federal system,

[00:11:01] [SPEAKER_02] I also think you get a little bit used to seeing autopsies and things like that with photos from crime sequence. But it was pretty horrific.

[00:11:10] [SPEAKER_01] Can you tell us a little bit about what role you played as the investigation got underway?

[00:11:16] [SPEAKER_02] Yeah. So from the Pentagon, we went downtown first to the FBI Washington field office and then to FBI headquarters. And I basically, for the next three months, reported every day to FBI headquarters. And there was an assistant U.S. attorney from the Southern District of New York, David Kelly, and I sat in a conference room there.

[00:11:41] [SPEAKER_02] And each of our offices was set up to handle requests like subpoenas or search warrants related to the investigations. Some in New York and some in Washington, D.C. area and northern Virginia where the Pentagon sits. And then at the end of the day, we listened to the briefing where all the investigations from around the country was briefed into then director of the FBI, Robert Mueller.

[00:12:03] [SPEAKER_02] And then Dave and I went across the street and we briefed Michael Churdoch, who was the assistant AG, attorney general in charge of the criminal division. And he was in charge of the investigation for the DOJ that we briefed daily on where the investigation was going.

[00:12:19] [SPEAKER_03] So this has been called the largest criminal investigation in history. Can you talk a little bit about the scale of this investigation and how many agencies were involved and how well they did or how well they didn't work well together?

[00:12:36] [SPEAKER_02] Well, there were about 11,000 FBI agents who were devoted to the case in Michigan. Basically, all the resources the FBI were devoted to. I think there was unity of purpose among all federal, state and local investigative agencies to work on the case. It was a feeling that there was another shoe that was going to drop trying to prevent a follow-on attack. There was obviously a great interest in finding out what happened and how.

[00:13:04] [SPEAKER_02] And really all law enforcement and intelligence community resources were devoted.

[00:13:10] [SPEAKER_03] Can you talk about the amount of evidence investigators had to work through?

[00:13:15] [SPEAKER_02] So you had 19 hijackers who were involved in the plot to figure out who they were, where they came from, whether they were supported by people in the U.S. Lots of records, lots of documents, lots of information held by the intelligence community. And it was an international conspiracy. So there was a significant amount of evidence held abroad. The amount was huge and with over 10,000, 11,000 FBI agents working on it, plus all the other investigative agencies.

[00:13:43] [SPEAKER_02] There was a tremendous amount of information that was being processed. Pretty quickly, I think we came to understand what had happened. What had happened with the planes, who these 19 people were, were a couple of other aspects to this. And Sauer, who was already in custody, was one of those. And then second, there was a large effort to try to figure out whether there was something else that was about to happen, whether a follow-on attack was there, whether there were some type of attack, like a hijacking with suicide pilots. That was going to happen.

[00:14:13] [SPEAKER_02] I remember we had sat around sort of brainstorming, and the intel community did this problem more than the law enforcement. Had we missed anything? There was reported to be instances where suspected al-Qaeda operatives were worried to scuba die. So, for instance, here's a question, we were missing something, we're so honest, going to plant a mine on a ship, or an Navy ship, or something like that. So the whole second thrust was, what else might happen?

[00:14:38] [SPEAKER_03] When you talk about sitting around and brainstorming about, did we miss anything, it just makes me think, you guys and women, you all must have been under a tremendous amount of pressure. There was so much responsibility on your shoulders. And if you had missed something, God forbid, it could have had disastrous results. I'm curious, what was it like to deal with that kind of pressure?

[00:15:05] [SPEAKER_02] I mean, there's a lot of work and a lot of pressure. It was, again, a unity of purpose. Everybody in the federal government was devoted to this. A large number of our allies internationally were offering to help. I mean, obviously, the Department of Defense was mobilized. The intel community was doing the same thing. So there was pressure, but it was spread all over the place. In many ways, it was sort of a privilege and certainly an honor to play some part in the reaction to this,

[00:15:33] [SPEAKER_02] which seemed very momentous in terms of U.S. history.

[00:15:36] [SPEAKER_03] You mentioned Moussaoui. And, of course, we're going to be talking about the Moussaoui trial. 9-11 is one of the most devastating attacks in our history. The Moussaoui trial is the only time, at least so far, that anyone was held liable for that in a criminal court. That alone, in my mind, makes the Moussaoui trial one of the most important trials in American history.

[00:16:01] [SPEAKER_03] I'm curious, as the lead prosecutor, do you think most Americans have a good understanding of what happened in that courtroom?

[00:16:11] [SPEAKER_02] So in federal court, it's never televised and there's no cameras allowed. So you get these descriptions from the media and artists' rendering of what's going on. I don't, you know, having done a lot of federal criminal trials, if there's a news account, it doesn't always get it right. So unless you're in the courtroom, you don't quite understand exactly what had happened. But generally, I think people got a pretty good idea.

[00:16:35] [SPEAKER_02] I can tell you that people who were in the courtroom, jurors, a media who sat through the whole thing, you know, the defense, the prosecution, I think we got a real view of a devoted, fanatic enemy dedicated to hate and destruction, a firsthand look at that and what that mindset is like.

[00:16:56] [SPEAKER_01] Speaking of which, can you tell us who is Zacharias Moussaoui? How did he come to the attention of the FBI?

[00:17:04] [SPEAKER_02] So Moussaoui was French of North African ancestry. He got a master's degree in the UK. He apparently was radicalized in the Brixton Mosque. Reportedly had fought in Chechnya. We learned that later. He came to the attention of federal authorities because in August 2001, he was training on a 747-loading simulator at the Pan American Flight School in Eagan, Minnesota.

[00:17:34] [SPEAKER_02] And most jet simulator students are former military pilots who want to get into the commercial pilot business or commercial pilots who are getting recertified or looking to move up in an aircraft type. Moussaoui had 55 hours in a single engine plane at the Airman Flight School in Morgan, Oklahoma, and he had no business being there with all the other jet simulator. He just wasn't qualified to learn how to fly a boat compared to the other students.

[00:18:03] [SPEAKER_02] So someone called the FBI, the smart FBI agent Harry Samet in Minneapolis, who got the INS to arrest Moussaoui because he had overstayed his visa waiver time as a student visitor to the United States. So he was actually arrested on August 16th and was in custody at the time of the attacks.

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[00:23:06] [SPEAKER_03] Now, in the media, they often refer to Moussaoui as the 20th hijacker because, of course, on 9-11, there were 19 hijackers. And so I think the implication is, oh, if he wasn't arrested, he would have been the 20th hijacker involved in the attacks. Is that an accurate impression?

[00:23:29] [SPEAKER_02] No, there was somebody who was supposed to be the 20th hijacker or would have been the last muscle hijacker, as we call the non-pilots, on United Airlines 93. And that was somebody named Muhammad al-Qahtani, who in the summer of 2001 tried to enter the United States in Orlando, Florida, but was turned back by immigration.

[00:23:48] [SPEAKER_02] He actually was being questioned by the authorities at Orlando Airport and not being allowed to enter the United States while Muhammad Adda, the leader or amir of the operation, was actually waiting for him outside to pick him up. Katani was actually the erstwhile 20th hijacker. Moussaoui was not. I'm not sure how that nickname got started pretty soon after Moussaoui came into attention to media that started being used. Moussaoui's actual role, the evidence shows us that he was a replacement pilot.

[00:24:18] [SPEAKER_02] In the summer of 2001, one of the people who had flight training, Ziad Jarrah, one of the Pomburg group, returned and he became the pilot at Airlines 93. He returned to Germany on a one-way ticket to visit his girlfriend. Now, he had gone to visit his girlfriend before, but always on a round trip ticket. And so it was right after that that Ramsey bin al-Shiv wired $15,000 to Moussaoui to start his jet simulator training.

[00:24:45] [SPEAKER_02] So Jara actually came back from Germany and Moussaoui was arrested. So we don't know what Moussaoui would have done on 9-11. And Moussaoui claimed that bin Laden had selected him personally to participate in the plane's operation, as they called it. Khalid Sheikh Mohammed, who was the mastermind, I think, didn't really trust Moussaoui. Moussaoui had once before been in Malaysia looking for training and had sort of talked openly about his desire to fly a plane into the White House.

[00:25:13] [SPEAKER_02] So KSM Khalid Sheikh Mohammed didn't really trust him in terms of his ability to not be caught. And so he kept him separate from the other 19 hijackers, separate geographically in terms of contact, but not separate in that they were funded, but in the same manner by bin al-Shiv in many cases. So it actually worked for Khalid Sheikh Mohammed. Moussaoui was arrested. Moussaoui did not reveal.

[00:25:42] [SPEAKER_02] He actually lied about what he was doing there. And so the operation went forward. Khalid Sheikh Mohammed actually maintained security of the operation by keeping Moussaoui some separate.

[00:25:52] [SPEAKER_01] What would have happened, do you think, if Moussaoui had told the FBI about the plot when he was arrested?

[00:25:58] [SPEAKER_02] That was the key to us seeking the death penalty in the jury trial penalty phase of Moussaoui's case, which was that he affirmatively lied when he was arrested and allowed the plot to go forward. And Moussaoui actually pled guilty to the entire indictment in April 2005 and signed the state facts. And he admitted that he knew the operation was out there. He admitted that the operation involved taking over planes, big short-bladed knives, and flying them into buildings to kill Americans.

[00:26:28] [SPEAKER_02] And some other stuff. He admitted getting money from an operative via Western Union wire transfer. So a large part of our case was proving that Moussaoui's lies caused the deaths of nearly 3,000 people on September 11, 2001. We had two theories for how if he had not lied, the authorities would have stopped the attacks.

[00:26:50] [SPEAKER_02] One is that through some really routine investigative methods, the FBI would have found international plotters and most of the 19 hijackers in the U.S. For instance, Moussaoui said that he got money from an operative via Western Union. Moussaoui had a notebook that was in his backpack at a hotel, the residence in, and eating soda. That had numbers, a cell phone number from which he was going to get money via Western Union.

[00:27:19] [SPEAKER_02] If you just ran the phone records on that, you would get to Ben Al-Sheib's phone number. You would get to the phone number of the person who sent money via Western Union from UAE to Ben Al-Sheib in Hamburg, Germany, to Moussaoui. And if you follow those numbers back, you get to a number of the other hijackers. Moussaoui said he got flight school information from an Al-Qaeda operative. He had some paper where some of the flight schools had Arabic notation next to them.

[00:27:47] [SPEAKER_02] If you look at those flight schools, go and canvas them, you can pretty quickly ask the flight attackers, who stands out as a student? And they did this after not 11. They would say, oh, there's a number of Arabic-speaking students who struggled with English and were noteworthy for that reason. So you do some basic phone records, banking records, looking at leases for some of the – once you start getting names, phone numbers, and bank accounts,

[00:28:15] [SPEAKER_02] you can basically get to 11 of the hijackers pretty quickly. The other whole thrust of this is if the Federal Aviation Administration knew there was an extant plot of the U.S. to hijack plans using short-flated knives, you'd just increase gate security. Moussaoui told us that he was trained to get knives that were shorter than his pinking thing, because those could get through gate security before 9-11.

[00:28:40] [SPEAKER_02] And he actually bought some of those knives in Oklahoma before we went to Minnesota to get on a jet symbol. The FAA could have tightened gate security, as they did after 9-11, to prevent people from bringing box cutters and short-flated knives on the planes. In 1995, there was a plot by al-Qaeda called the Bojinka Plot, which was to blow up airliners crossing the Pacific. And in response to that plot being discovered, it was discovered by Philippine authorities in Manila.

[00:29:09] [SPEAKER_02] The authorities just made it so you could not bring liquids onto planes, as it did after. It did for a short time on Pacific cruise in 1995 as a result of the Bojinka Plot, which was to build bombs on planes, in part using liquids like metric vision.

[00:29:25] [SPEAKER_01] One thing that you said a little bit earlier, and since we're talking about Moussaoui, I was wondering if you could elaborate on it a little bit, was just the hateful ideology that he espoused and the hate he had. I mean, I think it's really hard for a lot of people to conceptualize being okay with murdering 3,000 people in one fell swoop. And if you could talk a little bit more about what motivated this person, as you were able to find through the investigation and through the trial.

[00:29:54] [SPEAKER_02] He was a radicalized Islamic fundamentalist. He had trained in the camps in Afghanistan. He was known for running a guest house in Kandahar, which bin Laden was often seen talking to him on the porch. And he was imbued with the hateful ideology that the Americans and Israel in particular were doing all they could to hurt Muslims around the world. And the responsibility of Muslims was to conduct jihad against its enemies.

[00:30:24] [SPEAKER_02] And he was, including, for instance, Americans and Jews all around the world. I think this became really apparent to everybody. He actually testified twice at trial 2006. I cross-examined him twice, and it was a relatively easy cross-determination because he just asked him, you know, were you glad 3,000 Americans got killed? Yes, absolutely. Do you want it to happen again? Yes. Coming back for us every day until we get to every one of you. I mean, it was just, there was no, there was no fuzz on it at all.

[00:30:54] [SPEAKER_02] He would kill every American if he had a chance.

[00:30:58] [SPEAKER_03] So what exactly was he indicted for? And talk us through the decision process to seek the death penalty.

[00:31:06] [SPEAKER_02] Well, so he was indicted for a conspiracy to commit a number of offenses, terrorism, destroy American buildings to kill Americans. The government employees, I believe, use an airliner as a weapon of mass destruction. And so those are the basic charges. He indicted him on December 11, 2001. And those are the charges. Now, I think the death penalty question was interesting because I am not familiar with another case where a conspirator was actually in custody

[00:31:35] [SPEAKER_02] at the time of the actual murder but was still tried for the death penalty. But if you were going to do it in any case, this would be case because the murders were so heinous and so many.

[00:31:47] [SPEAKER_01] There were voices within this who wanted Moussaoui tried by a military tribunal. Why do you think it was important to try him in a civilian court?

[00:31:58] [SPEAKER_02] Well, I think that the Justice Department and federal court system, U.S. court system, have proven that they could try terrorism cases. Southern District of New York had just got guilty verdicts against many of the plotters for the East African embassy bombings that occurred in 1988. One of the prosecutors who started out with, Ken Karras, was coming fresh off that trial. So we thought we could do it. We thought it was a way to bring the victims closure, to show the Americans the mindset, to go back to your earlier question of Al-Qaeda,

[00:32:27] [SPEAKER_02] show their belief that they're in a thousand-year jihad to try to destroy Americans and America, and to do it publicly. The difference between Moussaoui and some of the other Al-Qaeda operants who were later rounded up internationally is that he was in custody in the United States. So it was natural to bring him into a U.S. civilian program as opposed to a military tribunal.

[00:32:50] [SPEAKER_03] In a panel discussion back in 2021, you mentioned that early in the case, a military attorney told you it would be impossible to handle this case in a civilian court. And you even went so far as to say that you worried sometimes that he might be whisked away to Guantanamo Bay and you would never see him. Why do you think there was so much doubt that it would be possible to pull this off in a civilian court?

[00:33:19] [SPEAKER_02] I'm not so much sure it was doubt, as we just thought it was. To go to your earlier question, there were a lot of voices seeing this as an act of war and not as a crime. I mean, it certainly, I think it essentially was bold. And I think there were a lot of people who wanted a quick resolution of this and thought a military tribunal or treating every one of the conspirators as an enemy combatant was the way to go.

[00:33:45] [SPEAKER_02] And there was legal precedent for the enemy combatant treatment given the Nazi-7 tourist cases, at least, from World War II era. In early January 2002, some military folks came to see us in the U.S. Attorney's Office in Alexandria. And we sat down with them and they said, oh, give us all your evidence. We said, huh? And they said, yeah, we'll have this guy charged, convicted, and executed before you ever get going. Of course, that hasn't proven true. And then a few years later,

[00:34:14] [SPEAKER_02] Marine Lieutenant Colonel Stu Couch came by and said, well, it turns out that we're great at prosecuting a war, but less great at prosecuting and administering the criminal justice system, so we need your help. And they still haven't, you know, no one's been tried yet in Guantanamo. But we just joked that if things got bad in the case, that a Black Hawk helicopter would swoop down and pick up this alley from the Alexandria Detention Center, and that would be that. He'd be brought to Guantanamo Bay

[00:34:44] [SPEAKER_02] and probably still be awaiting his trot.

[00:34:47] [SPEAKER_01] The irony of them telling you guys, hey, we've got this, and it's been 25 years. That's remarkable.

[00:34:55] [SPEAKER_03] So, obviously, one of the important witnesses in this case would have been someone like KSM. I imagine there's a lot of security concerns about whether or not a person like KSM could even be brought into a courthouse. How was the issue of access to a witness like KSM resolved?

[00:35:18] [SPEAKER_02] Well, I mean, first of all, I don't think there was... I mean, there was a time at which KSM and Mzibin Al-Shiddi and Al-Hasawi were considered to be brought to the Southern District of New York to be tried in Article 3-4, and that was then reversed. But at the time, there was no option to bring KSM or Mzibin Al-Shiddi onto U.S. soil, which would have given them more rights than they otherwise would have had, arguably, outside the United States.

[00:35:46] [SPEAKER_02] The issue arose for us in the Mzibin Al-Shiddi case when KSM and Mzibin Al-Shiddi were captured and then began to be interrogated. They made a number of statements about Mzibin Al-Shiddi's role, some inculpatory and some exculpatory. However, because of the obligations of the prosecution to turn over exculpatory material for their offense, we turned it over, and then they began to seek access to those witnesses. From a national security perspective, they were not going to get access to the witnesses,

[00:36:16] [SPEAKER_02] either for trial or for some hybrid pretrial proceeding where they'd be allowed to testify. And that issue, whether they had access to those witnesses, that led Judge Brinkema to throw out the death penalty. We appealed that was reversed by the Fourth Circuit. It went up again on a similar question. And in the end, a compromise that the Fourth Circuit Court of Appeals allowed us to pursue was that the defense could read to the jury excerpts from

[00:36:45] [SPEAKER_02] the interrogation of KSM and Mzibin Al-Shiddi, whatever they wanted, basically, to read to the jury so they could have a way to get the allegedly exculpatory statements to the jury without having any access to KSM or Ben-El-Shid were having to bring them into a courtroom.

[00:37:00] [SPEAKER_03] Obviously, there were attacks on the Pentagon, attacks at the World Trade Center. How was it decided which district he would be tried in?

[00:37:09] [SPEAKER_02] It became an interesting question. Of course, when we were preparing to indict him in early December 2001, the World Trade Center was still a smoking hole in the ground. So there was a concern about whether you could actually seat a jury in the courthouse in Manhattan, which is in Lower Manhattan than the courthouse, not far from the site of a World Trade Center. So that was a concern. I think in the end that we were permitted to rim the case in Alexandria

[00:37:38] [SPEAKER_02] because it was closer to Washington, D.C. so Attorney General and Maine Justice could keep an eye on it. It was decided that we would have a joint prosecution team, some prosecutors from Eastern District of Virginia and some from the Southern District of New York with some help from Maine Justice, some assets from Maine Justice. We brought down prosecutors from New York. We brought a whole squad of FBI agents and other agents from New York and we all worked as a team from the indictment

[00:38:06] [SPEAKER_02] until May 2006 when the salary was finally in sentence. We actually had a meeting with Michael Chertoff at which the prosecutors, we'd been working together with the New York folks on the whole investigation but also on the indictment. Ken Karras, who's now a federal judge in the Southern District of New York, he's really the main author of the indictment on the sound before he became judge. So the U.S. Attorney from the Southern District of New York, the U.S. Attorney from the Eastern District of Virginia, that was Jim Comey

[00:38:36] [SPEAKER_02] and Paul McNulty, respectively. We met with the Assistant Attorney General. We sort of hashed out, you know, could you sit a jury in Manhattan for this? Could it be partially? Should we sit a jury that's in a courthouse that's a few miles from the Pentagon if we do it there? You know, which has a better jury pool, which has a better appellate court? The Fourth Circuit Court of Appeals is better on national security issues at the time than Second Circuit U.S. Court of Appeals. And we won. We won the contest and we brought the case in Alexandria.

[00:39:06] [SPEAKER_02] One interesting story that may only be interesting to me, but originally Jim Comey, later FBI director and enemy of Donald Trump now, ran our Richmond, Virginia U.S. Attorney's Office. I knew Jim in law school and I knew him from work, obviously, and he had been an ASA in the Southern District in New York. He was the one who brokered getting me into the conference room with Dave Kelly to work on the investigation. He then got named U.S. Attorney in Southern District of New York.

[00:39:36] [SPEAKER_02] And so then he went from, you know, Eastern District of Virginia should have a role in this to know this should be tried in the Southern District of New York. But he ultimately, he lost out on that.

[00:39:45] [SPEAKER_01] He switched sides.

[00:39:47] [SPEAKER_03] Yeah, you mentioned Jim Comey. We've talked to him a couple of times and one thing he often talks about is about having a team. I wonder if you could talk a little bit about some of the people on the team and some of the contributions they made to this effort.

[00:40:05] [SPEAKER_02] We started off with the main prosecutors were me and Ken Karras who had just come off the East Africa bonding trial in New York. And then I drafted David Novak out of our Richmond office. He's now a federal judge in Eastern District, Virginia. And he had done death penalty cases before. I had never had a death penalty case go to trial. I charged a couple, but I never had it go to trial. So we needed him to worry about the death penalty, which he did. Ken was, I think, the brains behind the operation. Then,

[00:40:35] [SPEAKER_02] I think in 2004, he got made a federal judge. David Raskin replaced him. And Raskin is a great writer, a great trial lawyer. And then we had John Van Lunkhuisen from the counterterrorism section. He really did a lot of work on classified material and what to do with that interpretive discovery and review and things like that. We had a whole team of agents come down from New York. I think you talked to Jackie McGuire or maybe not yet.

[00:40:59] [SPEAKER_01] Just figuring out some scheduling stuff.

[00:41:01] [SPEAKER_02] So Jackie was one of the agents. Aaron Zebley was one of the agents. He's the one who sort of gave the summary testimony of how the FBI would have gotten to the hijackers and Rassaui not live. But we had a whole team of very good and very dedicated agents whose lives were uprooted right down to Northern Virginia. And we all worked hard for a number of years to bring this thing to trial.

[00:41:23] [SPEAKER_01] This was such a complex case. Was it a challenge to organize it and present it all in a way that would make sense to a jury?

[00:41:31] [SPEAKER_02] One of the reasons it's complex is it's huge. I mean, there were so many 302s or FBI reports or interviews or evidence. And we had a lot of help from a lot of different people to review those and figure out what should be turned over and discovery what was significant, et cetera. The other thing that made this complicated was anytime you have a national security case that involves classified information. You have a bit of a two-front war because the intelligence community doesn't necessarily

[00:41:59] [SPEAKER_02] want its methods, information, et cetera, out in a public courtroom. And of course, the prosecutors do and want to be able to use the evidence. So that complicates things. And at the same time, it was complicated because there was a war effort going on and enemy combatants who played a role in this were being captured, in some cases, held and interrogated. So all those were complicating factors. In terms of presenting it to a jury, I think it was relatively straightforward because it was,

[00:42:29] [SPEAKER_02] you know, what happened on 9-11. It's huge scale. There's some challenge in presenting the scale of it. And then, what was Mitzau's role? That was, for us, the main challenge. You know, there's two parts to a death penalty phase. One is, is the person legally eligible who's going to get, now, the second phase of that is, does this person deserve the death penalty? And that's where you get all of these mitigating factors that get brought before which you are. So, actually presenting to the jury,

[00:43:00] [SPEAKER_02] I think there's a little bit of a built-in organization to it, but it still was a lot of information.

[00:43:05] [SPEAKER_01] Your opening statement did a really masterful job of laying out the various issues of the case. How long did that take you to put together? And, in your view, just as someone who's been a trial attorney for many years, how important is an opening statement in your view in terms of the outcome of a trial?

[00:43:24] [SPEAKER_02] So, let me answer those in reverse order. I grew up in the school and was taught that the most important advocacy part of a trial was the only state, particularly a criminal case. And I, I still hold true to that belief that I've been out of business for a while. Second part is, I don't really remember how long it took me to write it. I remember I thought about it for a really long time, as in maybe a couple of years what that would look like. And then, I wrote it and I practiced it and I got some really good help

[00:43:53] [SPEAKER_02] from people who listened to me. You know, for example, Chuck Rosenberg was my colleague at the time.

[00:44:00] [SPEAKER_03] Your case, of course, was that if Moussaoui had spoken up when he was arrested, the attacks never would have happened. It would have been stopped and all of those people's lives would have been saved and that devastation would not have happened. In your opening, you said that Moussaoui, quote, knew there was a ticking bomb in the United States. He knew there was a plot about to unfold where jets would be hijacked and flown into buildings. He knew it because he was part of the plot and he lied to allow the plot

[00:44:30] [SPEAKER_03] to go forward. I'm curious, I know you've already addressed some of this, but I'm curious, what in your view is some of the most compelling evidence, not only of him being a part of the plot, but for the idea that he could have stopped it if he had said something.

[00:44:44] [SPEAKER_02] I think the most compelling evidence would have been just the notion that there was an extant plot that was about to unfold. And then second, the basic information of how the hijackers, including Moussaoui, were funded because that, basically, routine investigative steps. You get a quick subpoena at the Western Union and you found Ben Al-Sheib using the alias of the Hatsabet. And from there, you can really unravel a lot of, the second whole arm

[00:45:14] [SPEAKER_02] of that was the FAA. They knew that there was this plot, including suicide pilots. And I think that was a bit of our lack of imagination in the intel and law enforcement community that we would have people willing to martyr themselves with flight planes in the buildings. And historically, hijackings were typically, you try to negotiate the release of the plane and the passengers in exchange for something else. Well, this was different. This was people using them as a bomb, you know, suicide.

[00:45:39] [SPEAKER_01] The government is held to such a high standard, appropriately, justifiably, of course. In this case, your team had to deal with the fallout of a mistake made by a TSA lawyer. Can you talk about that situation?

[00:45:54] [SPEAKER_02] It was a lawyer who represented the Federal Aviation Administration and she violated the sequestration issued by Judge Brinkham. So a sequestration order is during a criminal trial, potential witnesses are not allowed to view other testimony and evidence. There's one exception to that, which is the case agent. And the reason for that is witnesses hear what the other witnesses say. They will adapt their testimony to fit a story, a theme, etc. So the judge

[00:46:23] [SPEAKER_02] bans potential witnesses in the courtroom and doesn't want people telling, you know, as a lawyer or a victim witness specialist or somebody else you are not committed to tell witnesses what somebody else, what the evidence is, what's going on in the courtroom before that. This FAA lawyer, after hearing my opening, after hearing me say that the FAA could tighten the gate security to prevent this, went and told a bunch of civilian lawyers who were representing

[00:46:52] [SPEAKER_02] the airlines in civil cases, civil liability cases about this with some concern. The defense got wind of this and moved to dismiss the whole penalty phase based on this misconduct. And in the end, what happened was the judge allowed the proceedings to continue, but we had an FAA witness who was scheduled to testify about gate security but could have been done. And that witness was barred.

[00:47:17] [SPEAKER_03] This was a complicated case. There was a whole team on the prosecution side. Lusawi wanted to represent himself. What were your thoughts on that?

[00:47:29] [SPEAKER_02] Defendants are allowed to represent themselves. The old, you know, defendant who represents himself as a fool for a client, that's true. So, Sowie, on several occasions, was permitted to represent himself but always would stand by counsel. There was always counsel. He nearly had millions of dollars to pass. The federal public defender and that staff had appointed Criminal Justice Act attorney, several. When he got to the death penalty phase, he had a death penalty specialist. He had jury consultants.

[00:47:59] [SPEAKER_02] He had all these people for the most part represented throughout the whole thing. Now, he wanted to represent himself. He did on several occasions. Judge Franklman revoked that privilege several times because of its misbehave. For me, it's a complicating factor. It's typically easier to get to the real issues of a case if you'd have decent defense counsel on it. He was a distraction. He at times wanted to use it as a platform to espouse his views. Sometimes it just seemed like he was mischievous

[00:48:28] [SPEAKER_02] and wanted to disrupt the proceedings. I think he proved that, for instance, when we finally got to trial and Judge had made clear to him, if you misbehave, you will be taken out of the court. He behaved. So he clearly could waive it different, you know, whether he wanted to represent himself or whether he really wanted to be present and had some participation. But he received lots of counsel advice throughout the whole thing.

[00:48:53] [SPEAKER_03] You talked about some of his misbehavior. I remember he filed some pretty insulting handwritten pleadings. What was your reaction to that?

[00:49:02] [SPEAKER_02] Yeah, he taunted Judge Brinkham often in his pleadings. Some of it was insulting. He really insulted his defense counsel at all times. He had one of his defense lawyers, Jerry Zerkin, saw the Jewish faith, and he would even insult Alan Yamamoto. He's a Japanese ancestor. He would insult Alan Freak with him. He harbored this belief that his defense counsel was working against him. It was actually government agents, which was a false. He would file

[00:49:32] [SPEAKER_02] insulting motions. He would write us in the prosecution letters. I had on the door of my office a letter from him to me in which he signed it at the end. He said, have a nice day. And then he wrote, oh, and may the curse of Allah be on you. Which, for some reason, my daughter, who was then behind a battle landing or so, thought was hilarious.

[00:49:53] [SPEAKER_01] Oh my goodness. You were kind of getting a sense of his personality from what you're saying here, but can you talk a little bit about Massawi's testimony? Because it seemed like that really hurt him, and you got a front row seat to that.

[00:50:05] [SPEAKER_02] He wanted to disrupt the proceedings, but he was a proud al-Qaeda. That's why he pled guilty. It was true. He had deep-seated belief. He would kill you and me right now if he had the chance. And he was proud to say it. He believed that his mission was to raise G-NOT on the United States and all its citizens. So when he got a chance to speak, he was, you know, he had listened to some of the victim testimony and he was, he mocked the victims who were sad at losing family members.

[00:50:35] [SPEAKER_02] He was glad that people were killed, including, you know, toddlers on the planes. And it was really the hate and the veracity of the belief really came through. I mean, there was, you know, even when the victims were testifying, it wasn't a dry eye in the courtroom except for him. It looked like he was enjoying it. And again, he said, we're going to keep going until we get every one of them.

[00:50:57] [SPEAKER_01] You know, none of us are psychologists, none of us are mental health professionals, but you got a front row seat as you mentioned to this guy. You know, is this someone that, I don't know, would have turned out this way no matter what? I mean, was that what drew him to this really fundamentalist, violent interpretation of Islam? Or did that ideology take a normal person and twist them? I'm curious what your thoughts are with, like, what kind of

[00:51:26] [SPEAKER_01] person does this and is like this?

[00:51:31] [SPEAKER_02] The defense several times raised the notion of how he was crazy, and the media liked that also. It wasn't crazy. He was warped by hate to, as you said. But he was smart, he got a master's degree in the English language in the UK. He was mischievous in his feelings but went back off when he had to clearly knew what was going on. So he was not mentally ill enough. Would he have been susceptible? I think he must have been susceptible on some level to being radicalized in this way.

[00:52:01] [SPEAKER_02] But there's lots of factors. Why was ISIS suddenly so popular? Because economically and socially disadvantaged young men in the Middle East, in countries with no hope at all, suddenly saw this as a way to gain some power and stature. And that's a big farm share interpretation. I don't really know the answer to your question, but I think some of these folks are, some of the people who get radicalized are prone to it. So one of the things we did is after 9-11

[00:52:31] [SPEAKER_02] we went all around the world, different countries who wanted to cooperate and say, hey, I have an Al-Qaeda member who was willing to cooperate and often went to foreign countries, went to prison in a foreign country with people who spit at us and said, I'm not talking to the devil. But there were some decent cooperators, including in the U.S. and so there was a group of people called the Lackawar Six out of Buffalo. And they were local Arabic Palestinian kids, and they were sort of disaffected. And somebody in that community, radicalized person said, hey, you want to go on adventure? You want to go camp?

[00:53:01] [SPEAKER_02] Like, sure. They end up in the Al-Qaeda training camp on the Afghani-Pakistanic border. And one of them tells me, one night, it's great excitement comes through the camp, and one of them says, we're going to go get in line because we're going to see the sheikh. And he's like, what do you mean we're going to see the sheikh? Well, it's Bin Laden. And they're lining up to pledge bayat to become martyrs to Bin Laden. And this one guy is a goofy, doughy-looking kid from Buffalo suburb. He keeps saying, you go ahead of me, you go ahead of me. And he gets to

[00:53:31] [SPEAKER_02] the end, and he says, I'm not really down for this. And so he just goes back to his tent and doesn't pledge to Bin I don't think that's typical, though. I think you have people who grow up angry, like Massawi, get radicalized and for some reason have been susceptible to it and are willing to kill themselves in the cause.

[00:53:55] [SPEAKER_03] When we talk with prosecutors, we often hear that one of the most challenging and emotionally draining part of doing a murder trial is working with the victim's families. In this case, you had roughly 3,000 victims with families. Can you talk about the process of working with them and what that was like?

[00:54:20] [SPEAKER_02] Early on, and I'll credit Dave Novak for this, we decided to treat this like a single victim murder case. So we started a file for every one of the victims, injured and death. People began to mail us information, obituaries, information, things about their life, and we started establishing all these files. Now for us, the task was to try to come up with a number of victim impact witnesses, evidence,

[00:54:50] [SPEAKER_02] to put in evidence in the death penalty bay. But it also served as a pretty useful reminder of what was at stake. So we had a file on everyone. After the case, the Smithsonian asked for that. I don't know what happened to it in the end, but it was a pretty impressive effort. We had a victim witness specialist devoted to that. We had teams to meet with the victims who wanted. We would meet with any family who wanted to meet with us. And we had teams like an FBI agent, a prosecutor, a victim witness specialist, and sometimes it wasn't an

[00:55:19] [SPEAKER_02] FBI agent, it was a New York police detective. But we met with people in Boston, New York, New Jersey, and DC area, other than Virginia. And anybody who wanted to do this, they would show up and we would have these teams and you'd have like hardened NYP detectives who would cry and listen to spoken. Sometimes it was horrible and horribly sad. Sometimes it was sort of a celebration of life. And these people would laugh and tell them a story about their loved one or something like that. But it was very, very emotional.

[00:55:48] [SPEAKER_02] It was fairly draining to do. But I think it really gave us a sense of how terrible this was and how great the effect was, how the span of people affected was by this. And then we got to the portion of the death penalty trial. The question was, does this particular person deserve a penalty? So we had been prepared to put on maybe 50 or like the most, like a wide variety, different planes, New York, Virginia, Shanksville, Pennsylvania, representing

[00:56:18] [SPEAKER_02] most of the victims. I think Judge Crankham put on about 20 or 25. And I think she just thought it was just too much. People came in and there were just horrific stories. And as I said before, really, there wasn't a dry eye in the house except Moussaoui.

[00:56:34] [SPEAKER_01] Were you surprised when Massawi pled guilty? And I mean, you kind of addressed this a little bit earlier, but why do you think he ended up doing that?

[00:56:46] [SPEAKER_02] I think number one, he did it because it was true. He was proud of being an Al-Qaeda member. Had that peace he wanted to plead guilty to? I think he did it because he thought he would save his life. Thought it would get him out of the death penalty. Thought he might also have a chance to disrupt the proceedings by doing something. So it did and it didn't surprise me. What surprised me a little bit is that he was, you know, so we drafted this statement of facts, which really allowed a death penalty case to go forward and was really devastating

[00:57:16] [SPEAKER_02] to him. And he looked at it and made a change and agreed to it. And, you know, I think at some level, he was proud.

[00:57:24] [SPEAKER_01] Some people might think things might have ended after he pled guilty, but the case actually just moved then into the penalty phase. What does that mean and how does that work?

[00:57:36] [SPEAKER_02] In a federal death penalty case, it's two phases. That's over when he admits his guilt. It provides a factual basis. The judge kept fined him guilty of the crime's charge, which happened in April 2005. And then the penalty phase is should he get the death penalty or not? And if not, then the judge decides what the sentence is. And there are two phases to that. As I said, the first is whether he is legally eligible to get the death penalty. And the second is whether

[00:58:06] [SPEAKER_02] given all the facts and he ought to get the death penalty.

[00:58:11] [SPEAKER_03] So how did things end? Was he given the death penalty?

[00:58:15] [SPEAKER_02] He was not given the death penalty. He was sentenced to life in prison on each count without the possibility of parole. We later learned that the jury had an 11 to 1 in favor of the death penalty. There was a single juror who later came publicly. In fact, a panel that I spoke in in Minnesota came out and said that he had changed his view and voted against it. But Sal is still in life in what is known as supermax penitentiary

[00:58:45] [SPEAKER_02] in Florence, Colorado, where he was basically spies and terrorists and worse and worse I'll put in isolation for fear that they can convey information or hurt somebody else. And I think that's a fairly fitting end.

[00:59:00] [SPEAKER_03] So we've talked a little bit about KSM. There's been questions about whether or not he is ever going to come to trial. I believe recently there was another date given for a potential trial. I wonder what your thoughts are on that and if you're optimistic if such a trial ever will occur.

[00:59:21] [SPEAKER_02] I guess I'm not optimistic. I would think that there'll be some military tribunal. There was a ruling by the judge last week or earlier this week on his statements made after his interrogation, after his advanced interrogation. Those are suppressed. I think he could be found guilty. I think he could still be found guilty in an article 3 court. At this point, most people seem fairly happy just to have him stay in Guantanamo Bay in the current

[00:59:49] [SPEAKER_03] trial. trial was a huge part of your career. You've done a lot of other interesting cases, a lot of other interesting cases, frankly, but this has to be considered one of the most important parts of your career. I wonder how it's affected you and how you remember it.

[01:00:08] [SPEAKER_02] It just was and seemed at the time on a momentous occasion, a terrible attack. It was a real honor to play some small part in the response to that. So I was really privileged to have worked on it. The team was great. I think the effort we believe and believed and continue to believe in the case against a sound. I never thought that there would be, I certainly hope there never is, as large or important

[01:00:37] [SPEAKER_02] cases it is.

[01:00:39] [SPEAKER_03] I'm also curious, you mentioned that you used to have this letter on your office door from Moussaoui. Are there any souvenirs you've kept to remember this?

[01:00:50] [SPEAKER_02] I've got a couple of courtroom drawings. I've got some New York headlines framed on the wall there. Some things from foreign countries and stuff. I've got my trial notebook right over there on the shelves.

[01:01:01] [SPEAKER_03] I'm curious what kind of information would be in your trial notebooks and would you ever write a book about the case?

[01:01:07] [SPEAKER_02] There's been so much written about 9-11. I'm just not sure anyone would really care. Not sure I have anything to say about it. But the trial notebook has got all your direct exams, cross examination, documents that you need to conduct those examinations. It's got jury selection materials in there. This one is two five-inch binders full. It's sort of basic trial wear stuff to keep everything maybe it's different now in the electronic age. But back then it was a hard-copy notebook, three-ring binder.

[01:01:37] [SPEAKER_03] I would strongly encourage you to consider writing a book. A lot of things have been written about 9-11. But the Moussawe trial, at least in my mind, has not gotten the attention it deserves. And I think it deserves a lot more attention and you being there. And I think people would find such a book very, interesting in my opinion.

[01:02:02] [SPEAKER_01] We would both get one, so we would care.

[01:02:05] [SPEAKER_02] I'm up to two pre-sale. You got

[01:02:07] [SPEAKER_01] it, right? The series is coming out around the anniversary of 9-11. And I'm curious, you know, it has been 25 years and I can think it's increasingly feeling like part of history, part of the past for a lot of people, especially younger people who didn't necessarily live through it don't remember it. And I was curious as somebody who played such a pivotal role in the aftermath and trying to get justice, at least for this one,

[01:02:38] [SPEAKER_01] in this one case, what do you think people should remember about 9-11 and sort of what does this anniversary mean to you?

[01:02:47] [SPEAKER_02] You gotta take our enemies seriously, take their ability to fight tremendous harm and suffering serious. I mean, there's clearly been a lot of effort since then to look back and figure out how we missed and how to take seriously protecting the American people. I think there was a belief before this that al-Qaeda couldn't carry out an operation on American soil. And that was proved horribly wrong. The other thing I would say is that a lot of the sense

[01:03:16] [SPEAKER_02] of talking to victims and their testifiers, the sense of you're with your loved one and then they're suddenly taken away. At the blues, their lives changed. And that was, that's always stuck with that, you know, you get the chance to tell your people you love.

[01:03:32] [SPEAKER_01] Well, Rob, this has been great. Is there anything we didn't ask you about that you wanted to mention or that you think it's important for people to understand this case or anything we talked about?

[01:03:43] [SPEAKER_02] In some ways, it really seems like yesterday it's obviously a long time ago to write an email to all the agents of prosecutors every year on 9-11 and it's always just like the years tick by. I can't believe it's 10 years, I can't look, it's 20 years. Here we are at 25. These are folks, you can ask Jackie, these are folks who know FBI headquarters of downtown and they were, most of those people were covered with dust and the

[01:04:13] [SPEAKER_02] trade towers fell and then were sort of picked up and transplanted to the Washington, D.C. area.

[01:04:19] [SPEAKER_01] It really is remarkable.

[01:04:21] [SPEAKER_03] And you mentioned there's still like a group email so you're still all in touch, there's still a community of you?

[01:04:26] [SPEAKER_02] We've lost a few people, but yeah, they're collected. So when the case was moved from New York to Washington, the squad was called PENTBOMB, it was P-E-N-T-T, so Pentagon, Twin Towers, bomb, that's what they called any large sort of explosive related terrorism case and FBI violence. And the PENTBOMB squad was still, at least for that time, still, at least on 9-11, still communicated. I mostly just try to thank everyone

[01:04:55] [SPEAKER_02] for their service.

[01:04:56] [SPEAKER_03] Well, that's amazing. We really appreciate it. This has been a great conversation. We appreciate you taking the time. And again, I don't mean to repeat myself, but you should write a book. You have some invaluable resource material there, and I think people would really get a lot out of it. But thank you again.

[01:05:15] [SPEAKER_01] Thank you so much,

[01:05:15] [SPEAKER_03] Rob. We want to thank Rob for taking the time to speak with us. We hope to have him back someday to discuss some of the other intriguing cases he's worked on over the years. Thanks so much for listening to the Murder Sheet. If you have a tip concerning one of the cases we cover, please email us at murdersheet at gmail.com. If you have actionable information about an unsolved crime, please report it to the appropriate authorities.

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[01:06:09] [SPEAKER_03] Special thanks to Kevin Tyler Greenlee, who composed the music for the Murder Sheet, and who you can find on the web at kevintg.com.

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