Zacarias Moussaoui may not have held a knife to a flight attendant's throat or steered an airliner into the Twin Towers, but he was just as culpable for the Sept. 11, 2001, massacre as the 19 men who carried out the attacks, a federal prosecutor told a jury Wednesday.
The death-penalty case against the admitted Al Qaeda conspirator was later turned over to the jury for deliberations. Should the nine men and three women on the jury decide that Moussaoui is to blame for at least one death, his trial will enter a second phase to determine whether he should be executed or spend the rest of his life in prison.
Earlier, prosecutor David Raskin told the jury that Moussaoui, a self-avowed member of Al Qaeda, ought to be held responsible for the worst terrorist attack in U.S. history.
"Zacarias Moussaoui came to this country to kill as many Americans as he could," Raskin said in closing arguments. "He was supposed to fly the fifth plane into the White House. Instead he killed people by lying and concealing the plot ... that resulted in the worst terrorist attack in the country's history."
Raskin argued that federal investigators would have been able to prevent the attacks had Moussaoui not lied to them about the plot. Throughout the trial, Moussaoui's defense argued that the well-documented missteps of intelligence agencies leading up to the attacks cast doubt on the government's assertion it could have prevented the attacks.
Raskin said that Moussaoui lied "with lethal intent" when he failed to tell federal agents after his arrest in August 2001 about his Al Qaeda membership and the plot to kill Americans using hijacked aircraft.
Originally considered the "20th hijacker," the intelligence community has since come to believe Moussaoui had no direct role in the Sept. 11 attacks. High-ranking members of Al Qaeda have told investigators that Moussaoui was considered too unstable to be included in the plot, and that he was earmarked for a later wave of attacks.
The government's argument that Moussaoui should be put to death because he lied to investigators about knowing of the plot is a novel one, said Judge Andrew Napolitano.
"That type of theory — because you lied to us we couldn't prevent somebody else from committing murder — has never been pressed by the government before," said the former New Jersey Superior Court judge and senior FOX News judicial analyst.
"Because it's never been ruled on by an appellate court it's extremely novel ... the Supreme Court may say Congress did not intend for this kind of logical leap," Napolitano added.
Adding another layer to the case is that Moussaoui apparently wants to be executed by the U.S. government. He offered last month to testify for prosecutors against himself at his death penalty trial, the firmest evidence yet that the 37-year-old was seeking to derail his own defense to try to gain martyrdom through execution.
If the jury finds he is eligible for the death penalty, the question now before the court, a second phase would involve another round of testimony, probably focusing on the victims, which could last weeks.
In a hearing Wednesday morning outside the jury's presence, prosecutors and defense attorneys argued over fine points of jury instructions and the implications of a hung jury in this phase. Prosecutors want a mistrial declared if the jury does not agree unanimously, which could mean a new trial with a new jury. Defense attorneys argued that result should end the trial with a sentence of life in prison. U.S. District Judge Leonie Brinkema appeared to lean toward the defense argument, but did not immediately resolve the issue.
To win eligibility for the death penalty, prosecutors must prove that Moussaoui's actions resulted in at least one death on Sept. 11.
According to Tuesday's testimony, Moussaoui offered in February during a jailhouse meeting with prosecutors to testify for the government that he planned to hijack and pilot a fifth plane on Sept. 11.
FBI agent James Fitzgerald testified that Moussaoui told him — in a meeting requested by the defendant — that he did not want to die behind bars and it was "different to die in a battle ... than in a jail on a toilet."
Moussaoui dropped his effort to testify for prosecutors after he learned that he had an absolute right to testify in his own defense.
On Monday, he stunned the court by asserting publicly for the first time that he was to fly a 747 jetliner into the White House on Sept. 11, despite having claimed for three years that he had no role in the plot. Instead, he had said he was to be part of a possible later attack.
The February meeting with the prosecution was to have been off the record but was ruled admissible after the defense introduced a partial transcript of Moussaoui's guilty plea last April.
In that 2005 pleading, Moussaoui said, "Everybody knows that I'm not 9/11 material" and that Sept. 11 "is not my conspiracy." He said he was going to attack the White House if the United States did not release radical Egyptian cleric Omar Abdel Rahman, imprisoned for other terrorist crimes.
The defense on Tuesday also presented evidence from two high-ranking Al Qaeda operatives that cast doubt on Moussaoui's claim of involvement in 9/11.
Their testimony supports that of another top Al Qaeda captive, Khalid Shaikh Mohammed, chief organizer of the Sept. 11 attacks. He said in testimony read in court Monday that Moussaoui had nothing to do with the Sept. 11 plot, but was to have been part of a later wave of attacks.
Prosecutors argue that if Moussaoui had revealed his Al Qaeda membership and his plans to hijack an aircraft, the FBI could have pursued leads that would have allowed them to track down most of the 9/11 hijackers and thwart or at least minimize the attacks.
The defense argues that nothing Moussaoui might have said would have made a difference because the FBI and other government agencies were consistently ignoring warnings prior to 9/11 that an attack was imminent.
The defense also argues that it's legally irrelevant to speculate on what might have happened if Moussaoui confessed, because Moussaoui always enjoyed a constitutional protection against self-incrimination.
The Associated Press contributed to this report.