What you won't say can kill you.
Last week Robert Weisberg and I tried to highlight the central flaw of the government's conspiracy theory in the Zacarias Moussaoui penalty phase: You can't easily stretch lying into a capital federal criminal conspiracy to murder. The government's contention that Moussaoui actually caused the 9/11 deaths because he lied to federal investigators about details of the plot might satisfy some definition of criminal conspiracy. But it's a hard argument to sustain under the federal conspiracy and death-penalty rules. The causal link between Moussaoui's acts and the actual murders is just too stretched out to work under the federal laws involved in this case.
Then something funny happened at the sentencing trial: The prosecutors switched theories. Somewhere along the way, they stopped arguing that Moussaoui's lies had caused 9/11 and began to argue that his failure to tell the truth was the cause. In other words, the deaths happened not as a result of the false information Moussaoui gave FBI investigators (that he was taking lessons in flying 747s for fun, had worked in marketing research in London for a company called NOP, and had earned the money in his terrorist bank account) but as a result of the true information he withheld.
Now, a lot of you claim that lawyers in general, and Dahlias in particular, frequently obscure perfectly clear moral matters with tendentious "legalese." So, I won't do that here: There is a clear moral distinction between telling a lie and withholding the truth. Government claims that Moussaoui's lies were distinct acts in furtherance of a conspiracy are one thing. Claims that great airy fistfuls of truths might have stopped the attacks is a screenplay. A lie that misdirects or diverts government prosecutors from foiling an attack is arguably a criminal act. The decision to withhold the truth is (Fifth Amendment problems notwithstanding) a non-act.
Yet that's precisely the slippage that has subtly crept into the government theory of this case. Whereas the prosecutors once pledged to prove that Moussaoui's lies had caused 9/11, the pleadings and witnesses have increasingly focused on what would have happened, pre-9/11, had Moussaoui confessed the truth. The prosecution's Motion for Reconsideration of Judge Brinkema's order excluding tainted FAA evidence is chock-full of that kind of twirly language. Notice how, a few days into these proceedings, the argument has shifted significantly: "As we previewed in our opening statement, had the defendant told the truth, the FBI could have gathered information about the hijackers." "More important, unless the court reconsiders its sanction, this jury and the public will see only half the picture of what could have happened had the defendant told the truth." (Emphasis mine). This is, on its face, an extraordinary statement: Judge, please allow these real facts into evidence because we'll need them in order to make up some fake ones.
Now, this slipperiness hasn't been lost on the defense team (or on a lot of confused Slate readers). In this week's defense Motion To Amend the Court's Order, Moussaoui's lawyers point out that in her compromise order last week, Judge Leonie Brinkema allowed for testimony about "what the United States government 'could' have done to prevent the attacks had the defendant disclosed in August 2001 the facts he admitted in pleading guilty." Not cool, says the defense team, which is hoping that that language was just a slip of the pen. The prosecutors, they say, have moved away from alleging that Moussaoui's lies caused the attacks to speculation about a wholly imaginary conversation between himself and government agents and then on to the imaginary acts of investigative sleuthing that would have happened afterwards.
The defense team urges that to be eligible for the federal death penalty, Moussaoui needed to have committed an "act" (lying) as opposed to an "omission" (not confessing). They remind the judge that the decision to withhold the truth (and thus refuse to inculpate oneself) is constitutionally protected in ways that lying is not. Why? Because what kind of legal regime would force you to choose between confessing and implicating yourself (thus making you eligible for the death penalty), or electing to be silent (thus also making you eligible for the death penalty)?
Most important, the defense lawyers remind the court about the dangers of testifying in a parallel universe of what-might-have-been: How can any witness know, and how can the jury weigh, when and how in this imaginary conversation between Moussaoui and the government the right information leading to the correct conclusions might have been conveyed? What if, in this imaginary conversation, Moussaoui revealed only some details of the 9/11 plot but not all of them, or not the ones that later proved accurate? Is he eligible to be executed for the parts he withheld? What if this imaginary confession happened too late to stop the attacks? And what if, in light of this week's testimony, Moussaoui had had this conversation with someone higher up in the chain of command than the arresting agent, Harry Samit, whose warnings, as it appears, were largely ignored? Is Moussaoui responsible for having not-confessed to the low-level guy who was not-heard at the bureau? Is every person in America who chose not to come forward with any small detail about a possible 9/11 attack now eligible for the death penalty?
The problem with basing an entire case on a fictional conversation is that it allows the government to do precisely what the government should not be allowed to do: change the facts to fit their theory of capital punishment. They need not even prove facts. They need, under this theory of the case, only to prove that hindsight really works.
All this has hardly been lost on Judge Brinkema, who—long before anyone had ever heard the name Carla Martin—scolded the prosecution for suggesting to the jury that Moussaoui had an affirmative obligation to confess this plot to the FBI even after he had invoked his right to counsel. "I will warn the government that it is treading on very delicate legal ground here," she said two weeks ago. "I don't know of any other case in which a defendant's failure to act has been a sufficient basis for the death penalty as a matter of law." Again yesterday she cautioned the jury to disregard testimony they were hearing about what would have happened differently had this illusory confession taken place: "Juries cannot decide cases on speculation. ... Nobody knows what would have happened."
As this trial rolls on, prosecutors are attempting to blur the distinctions between omissions and acts, turning could-haves into would-haves, and twisting Moussaoui's moral vileness into criminal vileness. Their movie about 9/11 works only in reverse, and it only has a happy ending if all the government bureaucrats who actually worked this case are replaced by 24's Jack Bauer, Underdog, and gallons of strong coffee.
Dahlia Lithwick writes about the courts and the law for Slate.