Able Danger and Moussaoui,15202,86777,00.html

Rory O'Connor | January 31, 2006

Lawyers for Zacarias Moussaoui, the admitted terrorist conspirator who pleaded guilty to six conspiracy charges but insisted he was not part of the Sept. 11 plot, are making moves to inject the Able Danger intelligence controversy into Moussaoui's forthcoming sentencing trial in an attempt to stave off a death sentence for their client.

Last week, Representative Curt Weldon, the crusading conservative Republican from Pennsylvania who has been a leading voice in pushing for open hearings about Able Danger, received a subpoena to testify at the sentencing trial, now scheduled to begin next month. Weldon's communications director John G. Tomaszewski noted that "The Congressman has been pushing aggressively over the last six months to bring this story to the public, and he continues to push for the public's right to know all the facts about what United States government officials knew about the 9/11 attacks - and when they knew it."

Others connected with the Able Danger program, including defense analysts such as Lieutenant Colonel Anthony Shaffer and Captain Mark Phillpott, are also expected to be called to testify. Both longtime military analysts, along with several others involved in the Able Danger program, say their operation identified Mohamed Atta and three other 9/11 hijackers a year before the terror attacks. They were slated to speak at open hearings before the Senate Judiciary Committee September 21, but at the last minute the Defense Department abruptly refused permission for their stories to be told and the hearings were postponed indefinitely.

The Moussaoui defense moves came just after a federal judge ordered the government to turn over documents describing what officials knew about Al Qaeda threats and some of its hijackers before September 11, 2001.

In granting part of a January 20 defense motion for documents, Judge Leonie M. Brinkema of Federal District Court acted without even waiting for the government's response.

"Several of the categories of information are so critical to the issues in this case," Judge Brinkema wrote, "That the court can address some of the requests without a response."

Judge Brinkema ordered the government to turn over any threat assessments immediately, especially those (like Able Danger) completed in the year before the 2001 attacks. Her order was released after government censors blacked out about five lines of it.

Prosecutors plan to argue in the first part of the court proceeding that the F.B.I. could have prevented the attacks if Mr. Moussaoui had told agents what he knew about Al Qaeda's desire to fly planes into American buildings.

Moussaoui's attorney Edward B. McMahon Jr. was unavailable for comment. But another attorney familiar with the case speculated that the defense move to subpoena Weldon and other Able Danger participants might counter the prosecution's argument. "This could dissociate Moussaoui from the 9/11 attacks," he explained. "The defense will argue that Able Danger found evidence of four hijackers -- but Moussaoui was not one of them, even though he was in the United States at the time. This would buttress the claim that he had no involvement in the 9/11 attacks, and help exonerate him."

The defense may also argue that agents already had more information about the plot than Moussaoui could have provided. "Their second argument could be that the authorities could have prevented the 9/11 attacks without apprehending Moussaoui ahead of time," the attorney reasoned, "Since there is nothing Moussaoui could have told them that they couldn't have learned about from Able Danger."

If the jury agrees with the defense, Moussaoui will receive life in prison. If jurors agree with prosecutors, they will decide whether he should be executed. But there is reason to believe that the sentencing trial may never get to that point, given the Defense Department's obvious and pronounced reluctance thus far to permit any public airing of the Able Danger program. Should DOD officials decide to challenge Moussaoui subpoenas on national security grounds, citing as they have in the past the classified nature of the Able Danger program, the Classified Information Procedures Act could come into play. After hearing arguments from both sides, Judge Brinkema would then have to rule on the sensitivity of the information, and depending on that ruling, the issue might then move to the Justice Department for a final determination as to whether or not to allow the information to become public. If Justice and the Judge were to butt heads over the issue, the result could be a determination that the death penalty is off the table for the admitted Al Qaeda member.