Not The '20th Hijacker'

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

We know that Moussaoui is a member of al Qaeda. He said so in open court years ago. We know that he came to America with bad intentions prior to the Sept. 11 attacks. We know that he was arrested about one month before the Twin Towers fell. And, thanks to the 4th Circuit's ruling, we now know that Moussaoui's al Qaeda bosses – presumably Khalid Sheik Mohammed and Ramsi Binalshibh – have given their U.S. captors information about Moussaoui which, in any reasonable light, ought to ratchet this proceeding down from a capital case.

It is no small thing that the conservative federal appeals panel would agree with Moussaoui's trial judge about the nature and extent of the exculpatory evidence against the defendant. This is the same court that has sided just about down the line with the White House in the case of "enemy combatant" Yaser Esam Hamdi. It is the same court that has come to the rescue of federal prosecutors in earlier challenges in the Moussaoui case. It is a court with a long history of broad support for capital punishment. If federal prosecutors cannot win over the 4th Circuit in this case it's a good bet that they aren't likely to win over any court, including the somewhat less conservative United States Supreme Court.

So while the Justice Department says it is happy that the appeals court reinvigorated its case against the man originally known as the "20th hijacker," the language of the ruling itself ought to give prosecutors pause before they proceed toward trial. Yes, the appellate judges reversed U.S. District Judge Leonie M. Brinkema and put the death penalty back into play as a possible punishment for Moussaoui should he be convicted of conspiracy charges. And, yes, the panel reversed Judge Brinkema's ruling that the government could not present certain 9/11 evidence at trial.

But, in the longer term, the most important part of the ruling guarantees that Moussaoui's jurors will learn what some of al Qaeda's leaders say about the defendant. Exactly what jurors will discover remains sealed. But the appellate judges Wednesday offered some tantalizing tidbits. For example, the court acknowledged that jurors should have access to testimony that "tends to undermine the theory (which the Government may or may not intend to advance at trial) that Moussaoui was to pilot a fifth plane into the White House." The judges also identified "other evidence.... indicating that Moussaoui had no contact with any of the hijackers."

Want more? The federal judges supply it. "Several statements" by one of the witnesses, the court declared, "tend to exculpate Moussaoui." And, for emphasis, it is now the official position of the 4th Circuit that "a jury might reasonable infer... that Moussaoui was not involved in September 11." This is exactly what Moussaoui claims, of course – that he was part of a post-9/11 plot that, thank goodness, never reached its execution stage. If it is true that Moussaoui was not part of the 9/11 plot, the "aggravating factors" that would push jurors toward imposing the death penalty against him seem slight, indeed. Remember, too, that Moussaoui long ago would have pleaded guilty and accepted a life sentence. He said that in open court a few years ago.

The 4th Circuit had to get involved because Judge Brinkema had put the screws to the feds last fall when the White House and the Departments of Justice and Defense refused to make available to Moussaoui the testimony of Mohammed and Binalshibh (and perhaps other al Qaeda honchos); testimony that defense lawyers had claimed would help exonerate Moussaoui. After recognizing that Moussaoui was entitled to constitutional rights under the 6th Amendment – rights, incidentally, that the government refuses to give some of its own citizens – the judge gave federal prosecutors a choice: either make that testimony fairly available to Moussaoui or be sanctioned for failing to do so. When the feds failed to do so, the judge took away their right to seek the death penalty against Moussaoui.

The 4th Circuit's ruling is a study in good intentions, an example of a court trying to reach some sort of compromise where none seems possible or probable. The panel ordered Judge Brinkema to work again with prosecutors and Moussaoui's attorneys to come up with witness statements from the al Qaeda leaders that would give Moussaoui his fair trial rights but also protect national security. "We are presented with questions of grave significance," the judges rightly noted, "questions that test the commitment of this nation to an independent judiciary, to the constitutional guarantee of a fair trial even to one accused of the most heinous of crimes, and to the protection of our citizens against additional terrorist attacks. These questions do not admit of easy answers."

No doubt. And now it should be the Justice Department asking itself the question: in light of what we know about Moussaoui and in light of what the courts have said, why, other than the need to save face, is this a death penalty case? That question also won't admit of an easy answer. But that doesn't mean it shouldn't be asked. My answer? Take the death penalty off the table. Accept Moussaoui's guilty plea. Lock him up for life. Leave Mohammed and Binalshibh to their professional interrogators. End this embarrassing case. This guy isn't the "20th hijacker" and its about time prosecutors said so.