Opening Statement of Defense Attorney Edward MacMahon in the Zacarias Moussaoui Trial
(March 6, 2006: pages 46-76 transcript)

 THE COURT:  Mr. MacMahon?


21 May it please the Court, Your Honor, ladies and
22 gentlemen of the jury, counsel, my name is Edward MacMahon. I'm
23 an attorney who has been appointed to represent Mr. Moussaoui in
24 this case. And I'm here with some other lawyers, all court
25 appointed, that will be in the case and you will hear from them as

1 well, they are Ken Troccoli, Jerry Zerkin, there is Anne Chapman,
2 and Alan Yamamoto as well.
3 Ladies and gentlemen, when we first got together in this
4 case, Mr. Moussaoui introduced himself to you by proclaiming that
5 he was al Qaeda and that we were all Americans. And on this
6 point, and it may be the only one, I wholeheartedly agree with
7 him. But his statement caused me to pause and to reflect upon who
8 we are as a people compared to al Qaeda.
9 And in this case you will hear a lot about al Qaeda.
10 Mr. Spencer just told you that. You will hear a lot about its
11 structure, its goals, and how it puts things together and how it
12 makes operations work. And you will learn and, ladies and
13 gentlemen, we all know that al Qaeda is a fanatic Islamic-based
14 terror group, and we all know that their favorite weapon is
15 suicide terrorism.
16 Now, what we call suicide, they call martyrdom. And
17 martyrdom is something special to an al Qaeda member. It is just
18 what they yearn for. They live so that they can die. Found in
19 the luggage of Mohamed Atta were specific instructions for the
20 real 9/11 hijackers as to what to do and what to expect during
21 what they called the attack that was to come.
22 Copies of this were found in two other people's luggage,
23 whose pictures Mr. Spencer just showed you, but nowhere in any of
24 the belongings of Mr. Moussaoui. I will read you a few portions
25 of what was in this document. "When the storming begins, strike

1 like heroes who are determined not to return to this world.
2 Glorify Allah because this cry will strike terror in the hearts of
3 the infidels." He said, "strike above the necks, strike all the
4 mortals, and know that paradise has been adorned for you with the
5 sweetest things, and the nymphs wearing their finest are calling
6 out to you, come hither, come hither, followers of Allah."
7 It ends, "when the time of truth and the zero hour
8 arrives, rip open your clothes and embrace death for the sake of
9 Allah."
10 Ladies and gentlemen, Mr. Spencer is exactly right.
11 This is very disturbing. But you need to keep this in mind as you
12 hear this case. The thought of death did not deter any of the
13 September 11th hijackers, and it won't deter any of their
14 followers as well.
15 And who are we? We're a nation that's governed by laws
16 and the Constitution. We try to provide equal justice to
17 everyone. Our Constitution guarantees to all defendants the right
18 to a jury trial. And that is why you are here, as a check against
19 the abuse of government power, with roots in the law as far back
20 as the Magna Carta. And for serving we all thank you and
21 appreciate your time.
22 Our Constitution also requires that persons charged with
23 capital offenses, even admitted al Qaeda terrorists, be provided
24 with court-appointed lawyers when they can't afford them. It is
25 said that our justice system can only be judged by how it treats

1 the poorest, the most despicable person who is charged with the
2 most heinous of crimes. And if that is the case, then Moussaoui,
3 the man behind me in the prison jumpsuit that he will wear for the
4 rest of his life, poses the ultimate test to our legal system.
5 This defendant has admitted to many things. But he has
6 not admitted any involvement in the September 11th attacks. But
7 make no doubt, ladies and gentlemen, those attacks and the events
8 that preceded them are the crux of this case. They form the
9 entire heart of this case.
10 What the Statement of Facts contains is mostly
11 historical admissions of a general nature about al Qaeda and its
12 training and other plans that Moussaoui, as an admitted al Qaeda
13 member, was in a position to know, including, yes, the existence
14 of a plane's operation. The reason Mr. Spencer declines to tell
15 you that he is going to prove what role Moussaoui played in the
16 9/11 attacks is because there is no evidence to support it.
17 There is no evidence as to what he did in these attacks,
18 and the government would surely come forward with that evidence if
19 it existed. And you will learn that before September 11th,
20 al Qaeda was preparing many operations that involved killing
21 Americans, and that many involved hijacking aircraft. And of
22 those plots, the 9/11 plot was only one of them. The Statement of
23 Facts that Moussaoui has signed contains no admission of
24 involvement in or knowledge of the attacks that occurred on
25 September 11th. Moussaoui certainly wasn't sent over here to tell

1 a lie, ladies and gentlemen.
2 Now, the judge asked you early in this process if you
3 could fairly judge an admitted member of al Qaeda. And this was a
4 very difficult question. Admit to yourself, as we go through this
5 process, ladies and gentlemen, that it will be difficult to judge
6 your sworn enemy fairly and impartially, especially when he sits
7 here in the courtroom with us.
8 We all know where we were when we learned about the
9 attacks. We remember the shock and horror of that day. We
10 remember the immense and senseless loss of life that occurred, as
11 we watched, and all of us remember the incredible bravery of the
12 police and the firemen. And we all cried that day. And we will
13 again before this case ends, I promise you.
14 And we also know that the pain and losses suffered by
15 all of the victims will never be remedied or reduced in any way by
16 anything we do in this case. And we have all been affected by the
17 war on terror that followed the attacks, but this trial cannot be
18 viewed by you as jurors as part of the war on terror. This is a
19 court of law, not a battlefield, ladies and gentlemen.
20 And I say to you today that we must give this man a fair
21 trial. No matter who he is, what he thinks of us, or what he
22 represents, this is because of who we are and what we stand for as
23 a people and as a nation, ladies and gentlemen. And it is for
24 this reason and many others that this trial is much more about us
25 and who we are than it even is about him anymore.

1 So judge Moussaoui only for what he has done, on the
2 facts and the law. You cannot judge him to get revenge for the
3 victims or for what happened on September 11th or some substitute
4 for Usama Bin Laden.
5 And you must not judge him as a scapegoat for government
6 officials who made errors before September 11th. To do so would
7 certainly provide you an easy way to resolve the issues posed in
8 this case. But that's the wrong approach, ladies and gentlemen.
9 And I submit that it will lead you to the wrong verdict.
10 So let's look at what the evidence will be, as to
11 actually what Moussaoui did, who he is, and in conjunction with
12 events actually occurring in our country before September 11th.
13 Moussaoui has pled guilty to three crimes that expose him to the
14 death penalty. That's why we're here. But he has not admitted
15 involvement in the attacks or that he had any knowledge about the
16 date, the time, the targets or even the operatives in the attacks.
17 That information isn't set forth in the Statement of
18 Facts, and you will hear no evidence that would support a finding
19 in that regard. Moussaoui has admitted that he lied to the FBI
20 when he was arrested, and those lies and the effect that they have
21 had on our government as a whole are the central issues, that's
22 the crux of what's happening in this portion of the case, and the
23 issue is whether Moussaoui's lies to the FBI in August of 2001
24 directly caused the deaths that so tragically occurred on 9/11,
25 just 25 days after his arrest.

1 I say to you that the answer to that question is no.
2 The evidence in the case will show that nothing Moussaoui did or
3 said, even a lie, caused anyone to die that day.
4 Now, there will be evidence that Moussaoui, as a sworn
5 member of al Qaeda, was aware generally that Bin Laden was
6 determined to attack in the United States. And there will be
7 plenty of evidence that Moussaoui was training for some attack
8 that involved aircraft. And there will be even more evidence of
9 Moussaoui's stated intention to harm. He has admitted to all of
10 that.
11 But there will be little evidence, ladies and gentlemen,
12 that Moussaoui ever had the means or the opportunity to do
13 anything. You will hear that he told someone of a dream he had
14 had to attack the White House with an airplane. But those words
15 were not matched by any action. Mr. Spencer said Moussaoui was a
16 bad pilot. Ladies and gentlemen, he couldn't fly an airplane at
17 all. You will hear that from their witnesses.
18 He talked in Oklahoma of wanting to kill infidels, but
19 you didn't -- he didn't harm a soul when he was free in our
20 country or even before. That, ladies and gentlemen, is Zacarias
21 Moussaoui in a nutshell, sound and fury, accomplishing nothing.
22 I will not tell you in this case that Moussaoui
23 wouldn't, if asked, have boarded a plane with the intention of
24 martyring himself, on September 11th or any other day, but the
25 evidence will be that he was intentionally isolated from the real

1 hijackers in the United States. You will hear evidence that
2 Moussaoui was totally useless to al Qaeda, a headache, obnoxious
3 to everyone he encountered, and on that subject you will hear a
4 lot of evidence, ladies and gentlemen.
5 You will hear from Faiz Bafana, a Muslim fundamentalist,
6 who met Moussaoui in the year 2000. He will say that Moussaoui
7 was, and I quote, "cuckoo in the head," that they were all
8 relieved when he left Malaysia and was out of their hair. They
9 even paid his ticket to get rid of him.
10 Now, many facts in this case will be undisputed. It is
11 undisputed that Moussaoui was in federal custody on September
12 11th, where he had been for 25 days, and that before September
13 11th, no one in al Qaeda ever even learned that Moussaoui had been
14 arrested. No one ever tried to call and find him. No one called
15 to warn him to flee. And he never even tried to tell anyone that
16 he had been arrested. So whatever role the government may say
17 that Moussaoui played in the attacks, it was obviously so
18 inconsequential that the attacks went forward in his absence and
19 entirely without his participation.
20 How? Because the evidence will show that Moussaoui
21 wasn't part of the plot and was ignorant of its details. Now, you
22 will hear sufficient evidence to support Moussaoui's plea to the
23 conspiracies in the indictment, but you will hear no evidence that
24 will support a verdict beyond a reasonable doubt that any lie
25 Moussaoui told in August of 2001 caused anyone to die.

1 And the evidence will be, as Mr. Spencer alluded a
2 little bit to you, that in the summer of 2001 our government was
3 fully aware that Bin Laden was planning some terror attack in the
4 United States, that it would likely involve a hijacking, and that
5 there were al Qaeda members already in the United States.
6 You will learn this evidence through official government
7 documents and by stipulation, ladies and gentlemen. You will
8 learn from the director of the Central Intelligence Agency, George
9 Tenet, that in the summer of 2000 the threat level of terrorism
10 was so high that his hair was literally on fire.
11 And in this case the defense will show you the truth of
12 how the government reacted to these threats. And you will learn
13 precisely what steps, meager as they were, ladies and gentlemen,
14 that were actually taken to defend our country. The defense will
15 show you how the entire government acted, not just the FBI.
16 And we will show you how the National Security Agency,
17 the Pentagon, the whole Department of Defense, the Central
18 Intelligence Agency and even the White House reacted to these
19 threats. And I want to stress to you, ladies and gentlemen, and,
20 please, don't forget this when I tell you this, we do not mean by
21 placing this information before you in this court to suggest that
22 the government is on trial or that our government is responsible
23 for the attacks of September 11th.
24 The government did not cause 9/11. It was al Qaeda, Bin
25 Laden, Mohamed Atta, and the real hijackers who were responsible

1 for the events of that day, not our government. But the sad truth
2 in this case, ladies and gentlemen, is that our government did
3 not, before September 11th, act in the manner that we all wish it
4 would have or the aggressive manner that we have now come to
5 expect today in the middle of the war on terror.
6 You cannot assume that our government would have acted
7 the same way before 9/11 as it has since. You cannot look at this
8 case through post-9/11 glasses as that view is distorted by
9 hindsight and tragedy.
10 The government's theory that Moussaoui's lies directly
11 caused death 25 days later is entirely speculative. And, yes, it
12 is speculative in part because Moussaoui did not in August of 2001
13 provide the information that you saw on the Statement of Facts.
14 And as a result we will never know, sadly, what could have
15 happened in the 25 days between Moussaoui's arrest and the
16 attacks.
17 Equally as important is the fact that the government's
18 case for death is unrealistically premised upon the hope that it
19 would have conducted a flawless investigation, today we learned
20 directly into the United Arab Emirates, in 25 days that would have
21 followed Moussaoui's arrest, and that no one involved in the
22 ensuing investigation would have made any errors in judgment or
23 mistakes after learning of Moussaoui's lies.
24 But that belief, ladies and gentlemen, is not consistent
25 with the human experience, and it is contrary to your common

1 sense. People have always made mistakes and errors of judgment.
2 Seriously, who in this room has not? And unfortunately, ladies
3 and gentlemen, that's what happened in our country before
4 September 11th. That is the truth.
5 The evidence will show you that for over 18 months our
6 government did not even look for two of the real hijackers who
7 they knew were in the United States, and federal agencies didn't
8 even share critical information about them, arguing instead to
9 protect their own turf.
10 Ladies and gentlemen, I regret to tell you that the only
11 real search that our government ever conducted for two of the
12 hijackers in the 18 months occurred as the government combed the
13 smoldering wreckage of the Pentagon searching for remains. And
14 the government plainly failed to appreciate the significance of
15 the threat that Moussaoui posed, and the clues that they did
16 obtain by arresting him, no matter what lies he told, his presence
17 at a flight simulator facility should have given the government
18 valuable clues as to Bin Laden's plans involving hijackings and
19 otherwise, even though it would not have led them to 9/11, and the
20 government surely failed to understand the threat that Bin Laden's
21 budding suicide squadrons posed to aircraft in our country, which
22 was a new threat that required new thinking and new protections.
23 The best evidence of what could have happened in the 25
24 days that followed Moussaoui's lies can be most accurately
25 determined by learning how the government actually reacted to and

1 processed information at that exact same time and in that exact
2 same environment, not looking backwards through some rear-view
3 mirror. And that evidence, ladies and gentlemen, which is the
4 truth, forms the defense in this case.
5 What the government wants you to believe is only a
6 dream. And its most seductive quality is that we all wish it had
7 come true, but it is only a dream. Our entire country has changed
8 since 9/11. But that does not mean as a matter of fact or law
9 that the aggressive investigative tactics employed since 9/11
10 would have been employed before, and you cannot find that beyond a
11 reasonable doubt and, thus, find that Moussaoui's lies caused a
12 death.
13 Ladies and gentlemen, you must not accept such obvious
14 speculation as fact in a court of law, and I submit to you that no
15 one, no one should be executed on such flimsy evidence, even an
16 admitted al Qaeda member.
17 Now, the attacks of September 11th did not occur in a
18 vacuum. We had been under attack from al Qaeda and its Muslim
19 fundamentalist allies since at least 1993 when the World Trade
20 Center was attacked by Muslims affiliated with Usama Bin Laden.
21 In 1995 a plot to blow up airliners over the Pacific
22 Ocean was disrupted in the Philippines. Mr. Spencer mentioned
23 that to you. It is Operation Bojinka. It was masterminded by two
24 of the men who had been involved with the bombing of the World
25 Trade Center in 1993.

1 And one of those men was named Khalid Sheikh Mohammed.
2 He was also the mastermind of the 9/11 attacks. His identity, his
3 terror connections, all of this was known to our government at
4 least as early as 1995. Remember his name, ladies and gentlemen,
5 write it down if you must. You are going to hear it a lot, Khalid
6 Sheikh Mohammed. He is also referred to sometimes as KSM.
7 One of the people involved in Project Bojinka told
8 authorities that he intended to hijack a plane and crash it into
9 the Central Intelligence Agency's headquarters as part of a
10 martyrdom mission. You will hear substantial additional evidence
11 that our government knew that Muslim fundamentalists were
12 intending to use commercial aircrafts as weapons.
13 So you will hear in this case that as early as 1995,
14 and, at best, by 1998, our government knew that Muslim
15 fundamentalists were trying to kill Americans here in our country
16 by hijacking airliners and crashing planes into prominent
17 buildings as part of suicide missions.
18 But the reality of this threat never resulted in any
19 significant concrete actions by the government, which continued to
20 act as if the next hijacking might come from a Cuban who wanted a
21 free ride home or a bank robber who wanted a parachute over the
22 Pacific Northwest.
23 In the old days, so long as everyone capitulated to the
24 hijackers' demands, the passengers would be safely released and
25 could go home to their loved ones. But by 1998 those days were

1 over. Bin Laden had declared war on us and everybody in
2 government knew that civil aviation was his preferred target.
3 The evidence in this case will be that every measure
4 taken after September 11th to protect airline passengers could
5 have been taken before, and the government and the airlines'
6 inability to adapt to the new threat of suicide hijackings was the
7 fundamental weakness most plainly exploited by the real hijackers
8 on September 11th.
9 But it wasn't from a lack of warnings or from notice.
10 In 1998 Usama Bin Laden declared war against the United States.
11 And to make sure we were all watching, he did it on ABC News. Our
12 embassies in Africa were bombed by suicide attackers sent by Bin
13 Laden, and massive casualties ensued.
14 Later that year one of the bombers was apprehended and
15 he confessed. He openly admitted that the person that sent him to
16 Africa to kill was a Saudi Arabian man named Khallad,
17 K-h-a-l-l-a-d. Remember his name, Khallad, it will come up a lot.
18 Khallad was a killer and our government knew it in 1998 and they
19 began to track him.
20 In the fall of 2000 Muslim fundamentalists drove a
21 suicide boat into the USS Cole as it refueled in Yemen. There was
22 a grievous loss of life by our sailors. And the mastermind of the
23 coal attack? Khallad, ladies and gentlemen, something our
24 government soon learned.
25 And in this time period al Qaeda was very busy planning

1 new attacks against the United States. From the sanctuary of
2 Afghanistan, Bin Laden planned to attack our country using
3 aircraft as weapons. His plan? To hijack planes and fly them
4 into prominent buildings. And there were other plans to hijack
5 planes in Asia and on the West Coast of the United States, in
6 addition to the East Coast.
7 There were many terror plots and many involved hijacking
8 commercial aircraft, including plans to free a jailed Muslim
9 leader in the United States. So in 1999 and 2000 Bin Laden began
10 to move operatives into the United States and into Asia as well.
11 In late December of 1999 our government learned that
12 Usama Bin Laden's operatives were traveling from the Middle East
13 and Asia to Malaysia. Our government was there to watch but that
14 was all they did.
15 They were watched and their passports and visas
16 obtained. In January of 2000, the CIA learned that two of the men
17 were Khalid al-Mihdhar, a different person from Khallad, Khalid
18 al-Mihdhar and Nawaf al-Hazmi, two men whose picture Mr. Spencer
19 just showed you.
20 The CIA learned that at least one of them had a visa to
21 come to our country to land in Los Angeles, California in January
22 of 2000. Nawaf al-Hazmi was on the same flight. Remember their
23 names, Nawaf al-Hazmi and Khalid al-Midhar, ladies and gentlemen,
24 these men were aboard the plane that crashed into the Pentagon and
25 the story of the many instances in which our government failed to

1 search for them, much less even keep them off of airplanes is
2 particularly disturbing.
3 The truth is that we tracked these men in Malaysia but
4 as soon as they got to the United States, nobody even bothered to
5 look for them. Soon the CIA learned that the third man on the
6 Malaysian trip was Khallad, the same person who plotted the
7 bombing of the Cole and the embassies.
8 Khallad, our government says in e-mails that you will
9 see in this case, was a major league killer. Did alarm bells go
10 off? Did the government launch a massive manhunt for Khallad's
11 lieutenants in the United States?
12 You know the answer. I already told you where these two
13 men were finally found. But according to the government's case,
14 it was the information found in Moussaoui's notebook or in the
15 Statement of Facts that would have led them to these two men
16 before September 11th.
17 Ladies and gentlemen, you didn't lose your common sense
18 when you became a juror. The truth is the government made no
19 effort to find two known killers in our country for over 18 months
20 and 17 of them preceded Moussaoui's arrest.
21 And instead of a flawless search that uncovers phone
22 numbers and phone cards and immediately finds out who people are,
23 what actually happened was a perfect example of bureaucratic
24 in-fighting and outright blunders. Some people in our government
25 understood the risk and, in fact, you will see that many were

1 quite prophetic. They predicted that people would die in this
2 country because of the bureaucracy. And they were correct. They
3 said this in the summer of 2001, sadly, I tell you, to deaf ears,
4 and sometimes nothing happened for the worst of reasons.
5 The evidence will be that in late August of 2001 a high
6 government official told the rookie FBI agent tasked to try to
7 find Khalid al-Midhar and Nawaf al-Hazmi specifically not to seek
8 credit card information from the Saudi airlines, the airline upon
9 which these two had recently traveled and which is owned by our
10 supposed ally.
11 Why? That government official said she didn't think it
12 was prudent to ask. You as jurors will be able to see how this
13 occurred and what could have happened in the search for two known
14 killers in our country had a more or less prudent approach been
15 taken.
16 And the agents that searched for al-Hazmi and Midhar
17 were asked to locate them for an interview before 9/11. Before
18 9/11, the FBI wanted to interview Khallad's friends roaming freely
19 in our country. And you'd expect -- the government expects you to
20 believe that Moussaoui held all the clues to finding these men and
21 you will see right through that.
22 You will learn that before September 11th there
23 essentially was no "no fly list" in our country that would have
24 kept two known killers off of planes. And these men weren't even
25 added to the feckless list that existed.

1 But armed with the information that our government
2 provided in the year of 2000, the government of Thailand added
3 Nawaf al-Hazmi and Khalid al-Midhar to their no fly list, but not
4 the United States.
5 Another pre-9/11 fact of life for our government was
6 something known as the wall. Now, most of you don't know what the
7 wall is, and it is complicated, but I will tell you it generally
8 was -- it is gone now -- an artificial barrier that kept
9 intelligence investigations from being -- intelligence
10 investigators from sharing information with criminal prosecutors
11 and sometimes vice versa.
12 Now, in this case you will hear evidence from many high
13 persons in our government who testified before the September 11th
14 Commission, without having the idea of getting Moussaoui the death
15 penalty in mind. Listen to the attorney general of the United
16 States describe the wall and its effect on the defense of our
17 country before September 11th, ladies and gentlemen.
18 (Video excerpt played and transcribed as follows:)
19 "JOHN ASHCROFT: But the simple fact of September 11th
20 is this. We did not know an attack was coming because for nearly
21 a decade our government had blinded itself to its enemies. Our
22 agents were isolated by government-imposed walls, handcuffed by
23 government-imposed restrictions, and starved for basic information
24 technology. The old national intelligence system in place on
25 September 11th was destined to fail.

1 "The single greatest structural cause for the September
2 11th problem was the wall that segregated or separated criminal
3 investigators and intelligence agents. Government erected this
4 wall, government buttressed this wall, and before September 11th,
5 government was blinded by this wall."
6 (End of video excerpt played.)
7 MR. MAC MAHON: Folks, it is in this time period,
8 February 2001, that Moussaoui comes to the United States. He
9 lands in Chicago on his way to Norman, Oklahoma, to obtain flying
10 lessons, which he had been seeking for over a year. He is all by
11 himself. He has no al Qaeda companion, that too will be
12 undisputed in this case, as will the fact that Moussaoui was never
13 in the physical presence of a single real 9/11 hijacker, ever.
14 It will be undisputed that he never placed or received a
15 single phone call to or from a real hijacker, that he never
16 traveled with them on their surveillance flights, and the evidence
17 will be that when Moussaoui arrived, all four of the 9/11 pilots
18 had already been in the United States for at least nine months and
19 some much longer than that. All had already received their pilot
20 licenses for over a year and had begun to train on flight
21 simulators.
22 Ladies and gentlemen, when Moussaoui came to the United
23 States, the plot was very far advanced. It didn't need any more
24 pilots.
25 Almost all of them came to the United States in pairs

1 and accompanied by other al Qaeda members. All of them, except
2 Moussaoui, lived with at least one other real hijacker in the
3 United States. And the muscle hijackers, meaning the non-pilot
4 hijackers, began to arrive later that summer, almost always in
5 pairs, and all of them from Saudi Arabia.
6 Now, in addition to living together, the real hijackers
7 shared bank accounts and phone cards and went to gyms together.
8 The evidence in this case will be that they traveled and trained
9 together and flew together, and they prepared together in teams
10 for what was to come; their death, in teams, as part of a scripted
11 hijacking that required precise and precision teamwork.
12 Moussaoui did not train with them because he wasn't on
13 the team. And, ladies and gentlemen, there will be no evidence
14 that Moussaoui was the 20th hijacker, as he became popularly
15 known. The evidence will show that there was a real 20th
16 hijacker, who was sent to the United States on August 4th, 2001,
17 by Khalid Sheikh Mohammed.
18 The evidence will show that the 20th hijacker was
19 Mohamed al-Kahtani, and he was turned away at the Orlando Airport
20 by an alert customs agent while Mohamed Atta, the real ring leader
21 of the 9/11 plot, waited outside the terminal for his final
22 accomplice to arrive.
23 The government has stipulated to that. And you will
24 hear a lot about Mohamed al-Kahtani. Ladies and gentlemen, he was
25 the 20th hijacker and Moussaoui wasn't. Now the government can

1 only speculate as to why Moussaoui was here. And that's why they
2 don't even try to tell you what they think he was doing here.
3 He once said he was here as part of a hijacking plot
4 designed to free a Muslim fundamentalist jailed in connection with
5 prior plots. That man is known as the blind sheikh. You will
6 hear evidence of many plots, all merely conceptual, designed to
7 free the blind sheikh, that required the same sort of training
8 that Moussaoui was receiving.
9 But the evidence in this case will be entirely clear to
10 you that Moussaoui was totally uninvolved with the 9/11 plot.
11 There will be no evidence that he knew the names, the phone
12 numbers, the locations of any of the real hijackers and no
13 evidence that he knew the date or the targets or the timing of the
14 impending attacks.
15 In fact, the evidence will be that the real hijackers
16 did not even begin to select the date for the attack until August
17 25, 2001 at the earliest. That -- we know that because that's
18 when they began to buy airline tickets for September 11th. And
19 you will know that Moussaoui had been in jail by that time for ten
20 days and the so-called search for al-Midhar and al-Hazmi was just
21 beginning.
22 Here is some more information about Moussaoui and his
23 actions in our country. As I told you, Moussaoui landed in
24 Chicago in February of 2001. He openly declared $32,000 in cash.
25 Ladies and gentlemen, that's a lot of cash for a student pilot to

1 carry, much less declare. He goes to Airman Flight School in
2 Norman, Oklahoma. Has the government ever heard of Airman Flight
3 School before, ladies and gentlemen?
4 Before 9/11, you will learn, that Airman Flight School
5 had hosted other al Qaeda members as flight students. Our
6 government knew all of this before September 11th because one and
7 maybe two Airman Flight School graduates were already cooperating
8 with our government before September 11th.
9 And Moussaoui is everything but discreet. You will hear
10 no witness in this case describe Moussaoui as discreet. He makes
11 a scene at the local mosque. He is quite public with his
12 fundamentalist beliefs. His first day at the mosques, he takes
13 posters off the wall because he doesn't think the people are good
14 Muslims. He is the most obvious person they could have had at the
15 mosque.
16 Every person who came into contact with Zacarias
17 Moussaoui in our country remembers him. He goes to a local bank
18 with a person from the flight school. Ladies and gentlemen, he
19 doesn't even know this person, he hasn't met them. And what does
20 he do? He unloads $32,000 in cash from all possible locations on
21 his body right at the bank and makes his deposit. He then pays
22 for his flight training with more wads of cash. And then he fails
23 miserably to learn to fly.
24 You will hear that instructors wouldn't fly with him,
25 and that he argued with people and blamed others for his failures.

1 He couldn't fly at all. Any plan that involved Moussaoui as a
2 pilot was destined to fail. Moussaoui couldn't get the student
3 license that many people get in a week.
4 Meanwhile, as Moussaoui is flunking flight school,
5 al-Midhar and al-Hazmi are actually preparing the 9/11 attacks.
6 And the drum beat for our intelligence agencies warning of a Bin
7 Laden-sponsored attack in the United States escalates.
8 In that summer the National Security Agency alone issued
9 33 separate warnings that an attack was coming. An alert FBI
10 agent named Ken Williams wrote a report that said he had
11 determined that large numbers of fundamentalist Muslim young males
12 were obtaining flight training in the United States.
13 This report is known as the Phoenix Memorandum. And you
14 will hear that an FBI agent tasked with assisting the Moussaoui
15 investigation in August of 2001 actively read the Phoenix
16 Memorandum on two occasions, and even printed a copy for her
17 files, but that agent saw no significance to the warnings
18 contained in that memo.
19 And, ladies and gentlemen, her reading the memo twice
20 was all that anyone in Washington, D.C. ever did with the Phoenix
21 Memorandum until after September 11th, 2001. And the CIA
22 repeatedly warned that summer that Bin Laden was preparing to
23 attack and it labeled the coming attacks as potentially
24 catastrophic.
25 The CIA warned there could be mass casualties and

1 spectacular attacks. One report from June 30 of 2001 is titled
2 Terrorism, Bin Laden Planning High Profile Attacks. There were
3 many more, and you will see many of them.
4 In July of 2001 the FBI alerted its field offices to be
5 on the alert for potential terror attacks from Muslims and asked
6 them to form evidence recovery teams. And on August 6th, 2001,
7 just as Moussaoui was leaving Oklahoma for Minnesota, the
8 President of the United States himself was briefed by the director
9 of the Central Intelligence Agency about the threat posed by
10 al Qaeda in our country.
11 That briefing, ladies and gentlemen, which you will see
12 in evidence in this case, is called Bin Laden Determined to Strike
13 in the United States, and it is a startling document. The
14 President was told about the plot to bomb the Los Angeles Airport
15 by Muslim fundamentalists. And if an FBI agent comes up before
16 you and testifies that it was something done in Washington that
17 prevented the Millennium plot, you will know that that is
18 completely untrue.
19 The evidence in this case will be that the Millennium
20 plot was stopped by one alert customs official who searched Ahmed
21 Ressam in Washington. And that person hadn't received a warning
22 from the FBI or anything whatsoever. What you will hear from that
23 is typical Washington, taking credit for something they had
24 nothing to do with.
25 And the briefing warns ominously, ladies and gentlemen,

1 of hijackings, August 6th, 2001. It says that the World Trade
2 Center is a target. It names Khalid Sheikh Mohammed's nephew by
3 name. It says there are active al Qaeda cells in the United
4 States.
5 And when you see this document, ladies and gentlemen, on
6 the second page it will say, and I read to you, "the FBI has
7 information that there are suspicious activities in this country,
8 consistent with preparation for hijackings," August 6th, 2001.
9 The FBI claims they are performing 70 full field
10 investigations of known al Qaeda members in our country on August
11 6th, 2001, but the evidence will be, sadly, that the government
12 did nothing with this information. And the truth is, and the
13 evidence will show, that on September 10th, 2001, the Justice
14 Department was seeking to lay off terror agents and reduce the
15 funding for those who remained.
16 There was no plan to give the FBI new powers, more
17 personnel or resources before 9/11. The plan was the opposite.
18 And the attorney general of the United States, you will hear, had
19 even ordered the FBI director that summer to not even bother to
20 brief him on terrorism matters. That's the truth, ladies and
21 gentlemen.
22 And the evidence in this case will be that it was only
23 the catastrophe of September 11th that caused the bureaucracy to
24 awake from its complacency and enact the necessary security
25 measures in our country. No event, including lies told by some

1 strange Muslim loner in Minnesota, would have accomplished that.
2 Listen to Secretary of State Condoleezza Rice discuss
3 this issue at the 9/11 Commission.
4 (Video excerpt played and transcribed as follows):
5 "CONDOLEEZZA RICE: I can tell you that I think the best
6 antedote to what happened in that regard would have been many
7 years before to think about what you could do, for instance, to
8 harden cockpits. That would have made a difference. We weren't
9 going to harden cockpits in the three months that we had a threat
10 spike.
11 "The really difficult thing for all of us, and I'm sure
12 for those who came before us as well as for those of us who are
13 here, is that the structural and systematic changes that needed to
14 be made, not on July 5th or not on June 25th or not on January
15 1st, those structures and those changes needed to be made a long
16 time ago, so that the country was, in fact, hardened against the
17 kind of threat that we faced on September 11th. The problem was
18 that for a country that had not been attacked on its territory in
19 a major way in almost 200 years, there were a lot of structural
20 impediments to those kinds of attacks. Those changes should have
21 been made over a long period of time."
22 (End of video excerpt played.)
23 MR. MAC MAHON: Now, ladies and gentlemen, in August of
24 2001, as Mr. Spencer told you, Moussaoui went to Minnesota. He
25 again unloads wads of cash from his belt and from his pants to pay

1 for flight simulator training at a school for experienced pilots
2 whose charges are covered by the airlines.
3 Now, Moussaoui has admitted obtaining money from abroad
4 in August of 2001, yet at this time you will hear he still had
5 sufficient money in his bank account in Oklahoma to pay for all
6 the flight simulator training he wanted. In this case you will
7 hear a lot of evidence of Moussaoui's continual requests for
8 money. It was a recurring theme.
9 And this is important, ladies and gentlemen, because you
10 will see that at this same time the real hijackers were sending
11 money back to al Qaeda so that it could be used in the next plot.
12 And Moussaoui did make calls to an al Qaeda member in Europe.
13 That shouldn't surprise you. He is an admitted member of
14 al Qaeda.
15 And the cumulative duration of all these calls is long
16 enough to be asked to go get flight simulator training, as he has
17 admitted, and wait for further orders, but too short, you will
18 see, for any operational information, which al Qaeda would never
19 have conducted on a telephone anyway. You will learn that in this
20 case.
21 And in Minnesota, Moussaoui is so obviously out of place
22 that he attracts immediate attention. He asks absurd questions
23 about the operation of a 747. Ladies and gentlemen, he doesn't
24 even know that the cabin is pressurized when the plane flies. He
25 asks if the door can be opened at 40,000 feet. Everyone can see

1 he is not a serious pilot. Even then, it is only because of a tip
2 from an alert citizen that Moussaoui is arrested and the FBI moves
3 in and arrests Moussaoui on an immigration charge.
4 Now, Moussaoui does have a companion in Minnesota. He
5 has traveled from Oklahoma to Minnesota with a person he met in
6 Oklahoma named Hussein al-Attas. Moussaoui met this young man at
7 the mosque in Oklahoma, and you will hear Mr. Attas's deposition
8 in this case.
9 But al-Attas is not an al Qaeda member. And on this
10 point the government will agree. But he did provide the FBI all
11 the information it needed in August of 2001. Al-Attas told the
12 FBI on August 16th, 2001 that Moussaoui was a Muslim
13 fundamentalist who often spoke of the greatness of martyrdom and
14 loved Jihad.
15 He told the FBI that Moussaoui was planning something
16 but that he, Hussein al-Attas, didn't know what it was. Ladies
17 and gentlemen, first day, this is what happened on the first day.
18 On that same day, Special Agent Harry Samit questions Moussaoui.
19 Samit believed from the first moment that he met Moussaoui that
20 Moussaoui was a Muslim fundamentalist, not a serious flight
21 student, and not even a pilot.
22 He knew that day that Moussaoui was -- and I will
23 paraphrase Agent Samit here -- a Muslim fundamentalist bent on
24 using his flight training for some terrorist plot. Harry Samit
25 wrote that the first day. Agent Samit didn't believe a single one

1 of Moussaoui's obviously false statements and he wrote that day
2 that Moussaoui was a terrorist.
3 He will tell you that Moussaoui wasn't even a good liar,
4 that Harry Samit could tell the difference between Moussaoui's
5 true statements and his obviously false ones. And then Harry
6 Samit wrote to literally every one of his superiors that Moussaoui
7 was a terrorist. He tried to warn the Secret Service. He tried
8 to warn the FAA. He did everything humanly possible to obtain a
9 search warrant over the next 25 days, but sadly, ladies and
10 gentlemen, he was stimied by his superiors in Washington at every
11 turn.
12 THE COURT: Mr. MacMahon, your time is just about up.
13 MR. MAC MAHON: Thank you, Your Honor. I am almost
14 done.
15 Samit and his fellow agents knew what they had found.
16 For example, in Samit's first written communication, he even got
17 the charges right.
18 How did the government and the FBI react to Samit's
19 concerns? After all, he was an experienced agent. But a series
20 of legal errors and misjudgments occurred that you will hear about
21 in detail, and the bottom line is that headquarters didn't think
22 there was any basis to search Moussaoui, much less arrest him for
23 anything.
24 But more agencies than the FBI got involved in the
25 action. On August 23rd, 2001, the director of Central

1 Intelligence was briefed about Moussaoui. Folks, it takes a lot
2 to get your name on the front page of a personal briefing to the
3 director of the Central Intelligence Agency, but Moussaoui did it.
4 Look at this document, which is one of the documents
5 given to the director of Central Intelligence. It even has Bin
6 Laden's picture on it, ladies and gentlemen. The CIA held
7 successive briefings about Moussaoui and here what they looked
8 like in order.
9 August 27th, 2001, the deputy director of operations;
10 August 28th, 2001, the executive director of the CIA; August 30,
11 the director of Central Intelligence; September 4th, the executive
12 director of the CIA; and September 10th, the deputy director of
13 operations. And there were other missed opportunities as well.
14 French authorities in late August of 2001 provided
15 information from a reliable source about Moussaoui that should
16 have proven to even the most ardent of doubters that Moussaoui was
17 an al Qaeda member. Mr. Spencer told you they had evidence that
18 Moussaoui went to Pakistan. Ladies and gentlemen, they had
19 evidence that Moussaoui went to Afghanistan where Bin Laden trains
20 his terrorists and they had that information before 9/11 and they
21 did nothing with it.
22 THE COURT: Mr. MacMahon, you are way over now.
23 MR. MAC MAHON: Let me wrap up, Your Honor.
24 Moussaoui could have told Bin Laden -- the FBI that Bin
25 Laden was determined to strike the United States and that al Qaeda

1 intended to hijack planes, but the government already knew that
2 much and more. And who is to say that any government official
3 would have believed anything that Moussaoui said anyway and
4 launched the flawless investigation the government claims it would
5 have launched, even then without the clues obtained in this, what
6 we were just told is the largest criminal investigation of our
7 history to provide the road map.
8 Remember, the government didn't even look for two of the
9 hijackers. Can the government really prove beyond a reasonable
10 doubt that it could have unraveled the 9/11 plot in 25 days in
11 late August or early September of 2001 had Moussaoui not lied?
12 In closing, ladies and gentlemen, I say to you that the
13 facts of this case will not support that verdict and the
14 government will not prove to you beyond a reasonable doubt that
15 anything Moussaoui did caused a death on September 11th.
16 We know that Moussaoui is an admitted al Qaeda member
17 and that he yearns for martyrdom, ladies and gentlemen, but now
18 the only way he can achieve that dream and then live on as some
19 smiling face on a recruiting poster for Usama Bin Laden is by your
20 verdict. Please don't make him a hero, ladies and gentlemen. He
21 just doesn't deserve it.
22 Thank you very much.
23 THE COURT: All right. We have now completed the
24 opening statements.
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