Aaron Zebley FBI, Aaron Zebley ’96 and the Moussaoui Case, Three weeks before 9/11, federal authorities responded to a call from a suspicious flight instructor in Egan, Minnesota, and arrested Zacarias Moussaoui, a French citizen, for overstaying his visa waiver period. Although other activities by Moussaoui had aroused attention, the immigration charge enabled the Government to make a quick arrest. Moussaoui’s case was quickly folded into the FBI’s overall 9/11 investigation, and he was later indicted on six felony charges related to the 9/11 plot, three of which were capital offenses. Almost four years later he pled guilty to all of them. He is currently in a federal supermax facility in Colorado and seeking to withdraw his guilty plea.
Aaron Zebley’s path intersected with Moussaoui’s two days after 9/11. Zebley, then an FBI agent and now an Assistant U.S. Attorney, had just wrapped up three years on the team that had worked the East Africa Embassy bombings, another Al Qaeda operation. After 9/11, he was assigned to the FBI’s 9/11 case squad — the PENTTBOM team — in the New York office. Zebley went to Oklahoma where Moussaoui lived to follow up the arrest and begin building the case that led to his guilty plea.
Criminal justice concerns and national security interests in this case began to conflict when, in March 2002, the Government announced its intention to seek the death penalty. The Government assigned Zebley and one other “case agent” to help put together the evidence necessary for the death penalty phase of the trial. In turn, Moussaoui tried to call as witnesses in his favor some “high value detainees,” individuals in custody but who were not under arrest by law enforcement authorities. Reasoning that Moussaoui had the right to seek exculpatory testimony to aid his defense, Federal district court judge Leonie Brinkema of the Eastern District of Virginia, ordered the Government to make the witnesses available for depositions. The Government refused. As a sanction, she barred the Government from pursuing the death penalty and from introducing any evidence that connected Moussaoui to 9/11.
On appeal, the Fourth Circuit determined in a lengthy opinion that it was possible to craft written substitutions that would replace adequately the testimony of the witnesses sought by Moussaoui. The Government made available to defense counsel written summaries of the relevant statements, and defense counsel crafted from those summaries a proposed substitution for the testimony. According to Zebley, the Government then “had an opportunity to say, ‘That’s incomplete, that’s not the full story, here’s what else they said,’ and so forth.” Judge Brinkema considered both sides, decided what the admissible substitution would be, and then proceeded with the death penalty phase.
“The novel thing about Moussaoui and any future Article III terrorism prosecution,” says Zebley, “is that if we continue to hold detainees beyond the reach of the criminal justice system, and if they have information or knowledge about people who are in the criminal justice system, but neither the Government nor the defendant can call them as witnesses, we’re going to continue to have this tension. What do you do?”