FBI discussions on Moussaoui at issue

ALEXANDRIA, Va. -- The headquarters supervisor of the FBI's terrorism operations section testified yesterday that he had never read a memo dated Aug. 18, 2001, in which an agent proposed a full criminal investigation of Zacarias Moussaoui as a possible terrorist airplane hijacker.

The now-retired supervisor, Michael Rolince, was questioned by a defense lawyer, Edward B. MacMahon Jr., during Moussaoui's sentencing trial. He was asked whether he had ever heard that Harry Samit, the FBI agent who arrested Moussaoui while he was taking pilot lessons in Minnesota, concluded that the 37-yearold Frenchman of Moroccan descent was a terrorist planning to hijack a commercial jetliner.

''No," Rolince snapped.

Had he heard other conclusions by Samit about Moussaoui?

''No. What document are you reading?" Rolince demanded.

The document was Samit's report of Aug. 18 ''sent to your office," MacMahon replied.

Called as a government witness, Rolince, a 31-year FBI veteran who retired in October, seemed to be more valuable for lawyers defending the only man charged in this country in connection with the Al Qaeda attacks of Sept. 11, 2001.

Defense objections and rulings by US District Judge Leonie Brinkema barred Rolince from giving what prosecutors wanted most: a long list of investigative steps the FBI could have taken if Moussaoui had admitted when he was arrested on Aug. 16, 2001, all the facts he had purportedly confessed to when pleading guilty in April 2005.

Instead, MacMahon extracted from Rolince more embarrassing reports about the FBI's handling of terrorism intelligence before the attacks.

This was important because, to get the death penalty at this sentencing trial, the government must show that Moussaoui's lies upon arrest prevented the FBI from identifying Sept. 11 hijackers and the Federal Aviation Administration from altering airport security enough to have saved at least one of the nearly 3,000 people who were killed in the attacks in New York and Washington.

The defense contends that the government knew more than Moussaoui about Sept. 11 beforehand and that the FBI was so inept at fighting terrorism that nothing the defendant could have told them would have mattered.

Moussaoui has admitted that he conspired with Al Qaeda to fly planes into US buildings, but contends that he was not part of the Sept. 11 plot. He said he was training as a pilot to fly a 747 into the White House as part of a possible later attack.

When prosecutor David Raskin began reading Moussaoui's confession and asking Rolince how the FBI could have responded to it in August 2001, Rolince started to describe what the FBI ''would have" done.

MacMahon protested, saying this was the second time prosecutors had tried to read Moussaoui's confession to the jury and imply he had some obligation to admit these things to Agent Samit.

The defense argues that the Fifth Amendment protected Moussaoui from being required to incriminate himself upon arrest.

After a private bench conference with lawyers and more testimony, Brinkema broke in and advised the jury, ''Juries cannot decide cases on speculation."

Rolince was able to say only that Moussaoui's confessions were more specific about targets and methods than other terrorist threat reports the government had before Sept. 11 and that the FBI could have -- not necessarily would have -- used all 11,300 agents to track leads and Moussaoui's financing.

Rolince testified he had only two hallway conversations, lasting 20 seconds, about Moussaoui before Sept. 11. Those were with a subordinate, David Frasca, and they dealt primarily with whether to get a warrant to search Moussaoui's computer and notebook.

But MacMahon got Rolince to concede that he also later discussed a plan to have a foreign intelligence service search Moussaoui's computer once the United States deported him to that service's country.

Rolince said he got 400 pages of material a day and couldn't read it all.