Moussaoui case moves to sentencing phase

ALEXANDRIA, Va. — With jury selection set to begin today in the sentencing proceedings for Zacarias Moussaoui, federal prosecutors expect to argue that he should be executed not for what he did in furthering the Sept. 11 terrorist conspiracy, but rather for doing nothing to prevent it.

That legal strategy appears fashioned around the government's long-held objective to keep secret much of the intelligence they have gathered about the terrorist plot.

Moussaoui, a 37-year-old French citizen of Moroccan descent, was arrested and jailed on immigration charges in Minnesota a month before the terrorist strikes on New York and the Pentagon. By limiting their case to his failure to cooperate with FBI agents before the attacks, prosecutors could keep secret some details they have learned about how the plot was hatched years earlier by al-Qaida operatives working under the direction of terrorist leader Osama bin Laden.

The government's case, prosecutors said in the letter, "will essentially focus on whether the government could have stopped the Sept. 11 attacks had Moussaoui told the truth, instead of lying, at the time of his arrest."

But the tactic could backfire. Moussaoui's defense team plans to counter the prosecution's case by reminding the jury of various other signs the government should have picked up that also would have alerted them to the plot.

For instance, FBI officials in Washington never approved opening Moussaoui's computer laptop, which could have provided details about the plot. The bureau also shelved a memo from an FBI agent in Phoenix who grew concerned about Middle Eastern men taking flying lessons in Arizona.

Moussaoui pleaded guilty to capital murder in April. The penalty phase is expected to last one to three months. The jury will decide whether he should die by lethal injection or spend his life in prison with no possibility of parole.

U.S. District Judge Leonie Brinkema is to meet today with about 500 prospective jurors in her seventh-floor courtroom. In four sessions throughout the day, in the presence of Moussaoui, his lawyers and prosecutors, she will briefly describe the case and ask the prospective jurors to complete questionnaires.

Starting Feb. 15, she will begin calling them back for individual questioning. Northern Virginia is a Washington suburb and home to the Pentagon, where thousands of military families and government bureaucrats live.

On March 6, a pool of 85 is to return to the courtroom for final selection of 12 jurors and six alternates.

Prosecutors face several obstacles. Moussaoui was in jail on the day of the attacks, suggesting he could not have been a significant player in the conspiracy. There are also serious questions about his mental stability, though the judge has said she believes him competent.

Andrew McCarthy, a former federal prosecutor who successfully prosecuted Sheik Omar Abdel Rahman for earlier terrorist plots in New York, said in an interview that he believed the government would have to show Moussaoui was "in the middle of the plot, or at least in it enough to be complicit."

"It's not just enough to say he was a member of al-Qaida. He has to be tied to the nuts and bolts of killing 3,000 people to get a death conviction," McCarthy said.