The Oath with Chuck Rosenberg
Rob Spencer: Remember
Chuck Rosenberg: Welcome, and for so many of you, welcome back to The Oath. I am your host Chuck Rosenberg. We begin Season Two of The Oath with an important reflection and a compelling story. 18 years ago this week, al-Qaeda terrorists hijacked four planes, crashed them into the north and south towers of the World Trade Center in Manhattan, into the Pentagon, and into a field in Shanksville, Pennsylvania, and killed almost 3,000 innocent people–men, women and children–on those planes in those buildings and on the ground. It was a horrific and devastating attack. It was a tragedy. We lost so many good and decent and caring people, including hundreds of first responders. Many first responders to this day, continue to suffer from and die from illnesses incurred during their heroic rescue and recovery efforts. 9/11 was an inflection point in American history and changed the way we think about terrorism and our own vulnerabilities as a nation.
Our guest this week on The Oath is Rob Spencer. Rob led the team that prosecuted the only al-Qaeda terrorist ever to face justice in the US Court Room for his role in that 9/11 conspiracy. The story of that investigation and the prosecution of that terrorist Zacarias Moussaoui, is both important and fascinating. Rob Spencer, the former criminal chief in the US Attorney’s Office for the Eastern District of Virginia, who long handled national security cases in that district, knows this story as well as anyone. He lived it.
Rob Spencer, welcome to The Oath.
Rob Spencer: Thanks Chuck. Thanks for having me. Happy to be here.
Rosenberg: Where are you from?
Spencer: I was born and raised in Hanover, New Hampshire.
Rosenberg: Tell me about your family.
Spencer: My father was a professor at Dartmouth College. He was a chemistry professor. My mother worked at the hospital there as a cardiac technician. There were four kids, had three siblings.
Rosenberg: You’re the second oldest.
Spencer: Correct. Yeah. I have two younger and one older sibling.
Rosenberg: Karen, I know your older sister because we were classmates in college. But your two younger siblings took a very different career path than you did.
Spencer: I ended up as a lawyer. Both my younger siblings–my brother still is a musician, and my younger sister was a musician. But my brother John has gained some following as sort of a post punk, kind of hard-rock musician: The Jon Spencer Blues Explosion was a fairly well-known band, yeah.
Rosenberg: Yeah. When did you figure out, Rob, that you wanted to go to law school, and when did you figure out you wanted to be a prosecutor?
Spencer: Well I always kind of thought I’d go to law school. I liked history and politics and I liked arguing with people. I always kind of figured I would end up going to law school. I actually worked as a paralegal between college and law school and that didn’t dissuade me from going to law school. And I also always had in the back of my mind that I’d like to work as a prosecutor and work for the government.
Spencer: Particularly, being a federal prosecutor is really the best job you can have while still being a lawyer. You’re on the–for me, on the right side of things. It’s full of human drama. There’s a lot of interest in doing it. It moves more quickly than civil litigation. So, there’s a beginning and an end to a lawsuit. You actually get to be a real lawyer, it’s like the lawyers you see on TV. You’re standing up trying to convince a jury of, of your case–it’s fun–you get to hang out with FBI agents and people like that for most of the time you’re trying to protect society.
Rosenberg: After playing hockey and lacrosse at Amherst College, you eventually went to the University of Chicago Law School.
Spencer: That’s correct. Yep.
Rosenberg: And what happened after that?
Spencer: I went, and came to Washington D.C. and took a job at a private law firm and worked there for three years to pay off a few loans I had from law school and try to get a background in litigation, but I always had in the back of my mind that I would go and work for the Justice Department.
Rosenberg: How do you eventually get in?
Spencer: In 1991, the FIRREA law was passed, financial institutions, something, something, something, act. It was an act passed in the wake of the Savings and Loan scandal, and among other things, it provided for the hiring of a number of federal prosecutors to pursue bank fraud claims. And that’s what I was hired, I was hired in the criminal fraud section of Main Justice. And this was after spending a couple of years trying to get into a U.S. attorney’s office somewhere. But I was hired at the criminal fraud section at main Justice, and started working on bank fraud cases and they had, at that point, two task forces out of D.C.: one in Texas and one in New England and I was assigned to the New England bank fraud task force.
Rosenberg: Did you like that work?
Spencer: I liked it at bottom when you get to look at the documents and talk to witnesses and realize there were people who were lying and cheating to steal money from mortgage holders and the federal government. But it was slow moving. There was not a lot of work for a lot of new prosecutors. And so, in 1992 I got myself assigned as a special assistant U.S. attorney to the Eastern District of Virginia in Alexandria
Rosenberg: Which is where we first met…
Spencer: Which is where we first met. And it was just an eye opener. It’s fast moving it was fun. You get to stand up in court at least you know three or four times a week if not every single day. And then I spent the next several years trying to get back there permanently and finally got hired back as an assistant U.S. attorney in the summer of 1995.
Rosenberg: Do you remember your first trial?
Spencer: My first trial as a special was a guy name Momo Massaquoi. He was a West African immigrant, and he was involved in a scheme to sell false Liberian birth documents. Because at that point, if you were of Liberian origin you were eligible for what was called temporary protected status. And so along with a gentleman who end up pleading guilty who worked in the Liberian Embassy, it was a scheme where every immigrant of West African origin who wanted to get into the United States, suddenly showed up as Liberian and was granted temporary protected status. So, Momo Massaquoi was part of that scheme and he went to trial and was convicted.
Rosenberg: What happened to him?
Spencer: He did some time in jail and then I assume he got deported, but I got no idea.
Rosenberg: I knew in your career because we worked together for so long that you had some of the most interesting and important cases in the Eastern District of Virginia, particularly when you started a little bit later in your career working on national security matters including espionage. I wanted to ask you about a couple of those if you don’t mind.
Spencer: As you know well, the Eastern District of Virginia includes the CIA, the Pentagon, and a number of other national security installations. And so, we naturally got a bunch of espionage cases
Rosenberg: Including the largest naval base in the world in Norfolk which is also part of the Eastern District of Virginia.
Rosenberg: You had a couple of espionage cases that I think are fascinating but not well known. I was wondering if you might tell us a little bit about the Squillacote matter.
Spencer: So Terry Squillacote and her husband Kurt Stand and a friend of theirs named James Clark were ideologically motivated spies who were originally recruited while they were in college in Wisconsin by the East German security service, the Stasi.
Rosenberg: When there was an East Germany.
Spencer: And then after the, the wall fell, and there wasn’t an East Germany. The U.S. obtained the Stasi’s file of agents in the United States. And on that list, was Terry Squillacote. And so, the FBI started watching Terry Squillacote and there was no East Germany, but then at one point, she took out a post office box in a false name, and wrote to the Communist leader of South Africa pledging that she that she wanted to get back in the, in the espionage game. And the FBI set up a false flag and met her. At the time, she was working in the Pentagon and had recently obtained a secret clearance and showed up to a meeting with someone she thought was a South African intelligence agent and actually was an undercover FBI agent.
Rosenberg: By false flag, you mean a legitimate and lawful undercover sting operation.
Rosenberg: And what about her husband and Mr. Clark?
Spencer: So, Jim Clark had worked for the State Department for many years.
Rosenberg: Our State—
Spencer: –our State Department. And he actually would send information to his East German handler and he ended up pleading guilty and testified against the other to a trial. He never had much of access to national security information. He didn’t have a security clearance at least an—at, at a high level. But he still trained and sent information to his East German handler Kurt Stand, that was Terry Squillacote’s husband. His role was a recruiter and he was the one who recruited both his then girlfriend and his friend Jim Clark.
Rosenberg: What happened, Rob?
Spencer: Stand and Squillacote went to trial. It was the first espionage trial in many, years. We tried them in 1998 in the Eastern District of Virginia. I was the second chair lawyer on that case to a guy named Randy Bellows, whom you know.
Rosenberg: Meaning you were the more junior of the two prosecutors.
Spencer: That’s correct. Yeah. And Randy Bellows had done a number of high profile espionage cases before that.
Rosenberg: Randy is a state judge now, but was a very, very gifted federal prosecutor.
Spencer: All true. They went to trial. The main defense for Terry Squillacote was entrapment. The jury didn’t buy it.
Rosenberg: What does entrapment mean?
Spencer: It’s when you overcome somebody’s will and to coerce them or compel them into committing a crime
Rosenberg: Lure them into your criminal activity.
Spencer: Yeah. And the law at least in the fourth circuit in that part of the federal law that applies to Virginia, is merely providing the opportunity for someone to commit a crime, is not entrapment. And that carried the day.
Rosenberg: And her defense failed.
Spencer: Correct. Yeah. They were both convicted. Squillacote, Stand, and Clark have all finished serving their sentences and are out
Rosenberg: National security cases have unique complications and unique difficulties. But one of those is the Classified Information Procedures Act
Rosenberg: Sometimes referred to a CIPA. What is it. And what does it permit?
Spencer: CIPA was basically enacted in response to a defense tactic called “gray mail.” If you were a defense lawyer and you were defending a client accused of a national security crime, you would say that you cannot provide a constitutionally mandated defense without releasing classified information. And so, the government would face a difficult burden of deciding whether to go forward with the case, and have the defense released publicly some classified information, or just not pursue the charges.
Rosenberg: And so, prior to the enactment of CIPA, the government would often, or occasionally walk away from national security cases because it felt it couldn’t risk the disclosure of national security information.
Spencer: Exactly. So, CIPA allows to work out pre-trial what the defense really needs for a constitutionally sufficient defense, if anything from classified information, and whether the government can give some substitution for that classified information. So, it allows for a way to decide ahead of time whether the government really will have to release classified information to allow a fair trial, whether it can be cloaked in some manner, or substituted for, or is not necessary at all for a constitutionally sufficient defense.
Rosenberg: And with the enactment of CIPA, it made it more palatable for the government to bring national security cases without risking disclosure of sensitive information.
Spencer: Yes, that’s correct. The problem still exists because for a prosecutor, when you have a national security case, it’s a little bit of a two-front battle because you’re facing the defense, but you’re also worried about the interests of the national security community. And although they want a spy for instance prosecuted, they don’t want the national security information the classified information released publicly.
Rosenberg: I think that’s a really important point. When we bring a bank robbery case or when someone is forging immigration documents, we don’t need to go to the intelligence community to help them assess and vet our case. But in the national security arena, we do. We very much do.
Spencer: You need the national security apparatus to the community, but they’re not fully onboard with a public trial. And so, for instance, you see a lot of high level spies who end up pleading guilty. I mean for instance, Hanssen, Aldrich Ames.
Rosenberg: Explain who Hanssen and Aldrich Ames are please.
Spencer: Ames was a CIA employee who was a spy for the Soviet Union. And Hanssen was an FBI agent who was a double agent who was spying for the Soviet Union. Both of them caused, directly, deaths of U.S. security operatives. And both were initially charged with death penalty offenses, but pled to life sentences in exchange for having a death penalty dropped, and part of the reason that the U.S. government is interested in doing that is because you wouldn’t have to have a public trial where you give away sources and methods of intelligence.
Rosenberg: And that’s the tradeoff you’re referring to
Rosenberg: In the Squillacote, case the fact that the United States was able to obtain the East German Stasi files was rather remarkable, wasn’t it?
Spencer: It was and it led to a lot of counterintelligence investigations by the FBI. Some turned out to be dead ends. For instance, there were people listed in those files who must have been listed as targets, as potential agents—
Rosenberg: –meaning those the Stasi wanted to recruit, but never did.
Spencer: Right. And then there were people who had actually been trained for years in such tradecraft as Terry Squillacote had a miniature camera and she was trained to photograph documents take microfiche, roll it up put it in a doll, and mail it to her handler in East Germany.
Rosenberg: And so, while there were some dead ends, there were probably other counterintelligence successes for the FBI as a result of obtaining those Stasi files.
Rosenberg: You had another spy case in the Eastern District of Virginia a fellow named John Phillipe Wispelaere. Who was he?
Spencer: So, Wispelaere was an Australian national. He was employed in Australia as an analyst of satellite imagery. Australia is one of what’s called the Five Eyes and the United States shares intelligence information with Australia.
Rosenberg: So, the Five Eyes, for our listeners, they are the closest allies of the United States in the world. New Zealand, Australia, Great Britain, Canada, and the United States compromised the five-hour community
Spencer: Right. Wispelaere had access as employed by the Australian Government to United States satellite imagery. He was a relatively young man until he was 27 or so. He decided he was bored in his job as an analyst of satellite imagery I believe and he started collecting a bunch of the imagery. He walked into a foreign embassy offered to sell imagery to a foreign embassy. That embassy contacted the FBI. The FBI posed as a willing buyer of the satellite imagery, and met with him, paid him some money, got some of the imagery which was classified at the top-secret level. The FBI asked Wispelaere to come to the United States to sell more of this imagery.
Rosenberg: There’s a reason they wanted him to come to the United States.
Spencer: Because they wanted to arrest him. Unfortunately for him, he flew to Dulles International Airport in the Eastern District of Virginia where he was arrested and we charged him with espionage.
Rosenberg: Did that go to trial?
Spencer: It did not go to trial. Initially, Mr. West Blair and his lawyers claimed that he was incompetent–he was suffering from mental illness–and was incompetent to stand trial.
Rosenberg: Now why would that matter?
Spencer: Well, you can’t try someone who is not mentally competent, who can’t assist in his defense, who doesn’t know where he is what’s going on
Rosenberg: And the circumstances of the case.
Spencer: Can’t cooperate with his lawyer can’t understand the process.
Rosenberg: So, if someone is truly incompetent we’re precluded from trying them.
Rosenberg: What happened?
Spencer: The judge sent Mr. whistleblower to the Bureau of Prisons facility that assesses whether people are mentally competent to stand trial.
Rosenberg: In Butner, North Carolina.
Spencer: That’s right. And he went down there and he was a highly intelligent, pretty convincing guy and he was assessed by a very young psychologist for the Bureau of Prisons who declared him incompetent to stand trial. I and the FBI asked for our own experts to evaluate Mr. Wispelaere and this was met with some unhappiness by the Bureau of Prisons who thought we were second guessing him.
Rosenberg: You were.
Spencer: We were. But I had a couple of very good one–very good psychologist and one very good psychiatrist just who went down and not only got a chance to interview Mr. Wispelaere, but interviewed the staff, and there was an art therapist with whom Mr. Wispelaere interacted at Butner. And this, our team of psychiatric evaluators talked to this therapist who said: “what? Well, he’s not incompetent. We spent all day talking about the great art museums in Europe.” And during a subsequent interview with Mr. Wispelaere , Wispelaere told our team that he was kind of tired of keeping up this act of being incompetent.
Rosenberg: He admitted.
Spencer: He admitted. Yeah. He said: “and they’re giving me so many drugs that it’s actually it’s making me think that I’m actually crazy.” He came back to Alexandria and pled guilty, was sentenced to 15-year incarceration
Rosenberg: Some of which, he actually served in Australia.
Spencer: That was part of the deal that if it was possible after 10 years for him to serve the last five years in an Australian prison, but I don’t know whether he actually did, or not.
Rosenberg: All of this as a prelude, Rob, to your work on what I think is inarguably the biggest case in American history in terms of impact, loss, complexity, and importance. On 9/11, 2001, the U.S. is attacked by al-Qaeda. You’re an assistant U.S. attorney at the time in the Eastern District of Virginia. You remember where you were?
Spencer: I was in my office. I remember calling an FBI agent who was coming up from Richmond to work on an extortion case. I asked him why he was late. And he said: “well someone just flew a plane into the World Trade Center, so I’m not coming, all bets are off. We’re all–it’s sort of all hands-on deck.”
Rosenberg: First you heard of it?
Spencer: First that I heard of it. The federal courthouse in Alexandria, Virginia is about five miles as the crow flies from the Pentagon. After American Airlines 77 had been flown into the Pentagon, we shut down the office at the U.S. attorney’s office. At that time, I was chief of the major crimes unit. You were the chief of that unit. Before I was
Rosenberg: That was my old job.
Spencer: You left, and I took your job. It’s a real step down for the office. But what the hell.
Rosenberg: I disagree, Robert.
Spencer: We shut down the office, and the only people who remained were Ken Melson, who was the acting U.S. attorney in the Eastern District of Virginia. And we got picked up by the FBI. I think it was in the afternoon and went over to the Pentagon. It was beginning to be processed as a crime scene.
Rosenberg: So, you were at the Pentagon on 9/11.
Rosenberg: Well I was there after American Airlines was crashed into it. It was on fire, actively on fire. They were pulling people out of the Pentagon still including bodies, there was a field morgue that was set up. You could see large pieces of the plane on the ground outside the Pentagon with delivery of American Airlines clearly visible. The silver exterior skin of the aircraft from the fuselage
Rosenberg: And the smell?
Spencer: Of fire burning, and the smell is burning jet fuel that is a pretty unique smell.
Rosenberg: What did you do that day?
Spencer: Sort of looked at the crime scene saw that it was being handled properly from a forensic perspective.
Rosenberg: What do you mean by that?
Spencer: Taking evidence and making sure that it is cataloged for a chain of custody purposes. I mean, it was a chaotic scene. They were trying to keep that part of the Pentagon from the roof from falling in more. There were firefighters in there.
Rosenberg: There’s a recovery effort, there’s a firefighting effort, and there’s a forensic and evidence collection effort all going on simultaneously.
Spencer: Right. And obviously, that recovery effort–that the life-saving effort had, by the time I got there, had concluded. But there are other efforts more important than the forensic effort but it’s still important. Ken Melson and I went with the FBI down into D.C. and went to FBI headquarters and also to the Washington field office.
Spencer: Well, we thought there’d be an investigation starting there obviously was. This was a time when no one really knew what had happened. I mean, fairly quickly we were able to figure out that they were–I mean “we,” I really mean the FBI–that there were 19 hijackers on four planes that United Airlines 93 which was crashed into a field outside Shanksville, Pennsylvania, was one of the hijacked aircraft, but no one knew whether that was it, whether there was a an expanded effort, whether some other shoe was ready to drop, and that effort went on for weeks, if not months.
Rosenberg: With all the national security work you had done as a federal prosecutor, had you worked on terrorism cases, had you worked on al-Qaeda?
Spencer: I had not worked on al-Qaeda. I knew of the work done in the Southern District of New York on Al-Qaeda. Our district, mostly led by John Davis and Jim Comey, had done the Khobar Towers terrorism investigation, but I hadn’t done any terrorism work.
Rosenberg: The bombing in Saudi Arabia.
Spencer: Correct. Yeah
Rosenberg: Well, you’re not a new prosecutor and you’re not new to national security, you’re new to Al-Qaeda.
Spencer: That’s right. In the succeeding days after 9/11, I think every agent in the FBI was put on finding out what had happened, how it had happened, how we missed it as a national security apparatus from the United States, and whether there was something else whether were follow on attacks coming. And assistant U.S. attorney from the Southern District of New York David Kelly and I spent the day sitting in a conference room at FBI headquarters. There were two briefings a day of the newly minted director of the FBI: Bob Mueller. And then we would walk across the street from FBI headquarters over to the Main Department of Justice building and brief Michael Chertoff, who was then the assistant attorney general in charge of the Criminal Division.
Rosenberg: Later the head of the Department of Homeland Security.
Spencer: Correct. Yeah. We would brief Mike Chertoff on where the investigation was going, what we knew in addition.
Rosenberg: You have two very proud excellent districts in the Southern District of New York in the Eastern District of Virginia one with deep al-Qaeda and counterterrorism experience, Southern District of New York, and one with deep national security and espionage experience, the Eastern District of Virginia. How was it decided where that case would be brought, and how it would be staffed and prosecuted?
Spencer: I would add that each district felt attacked and subject to great loss.
Rosenberg: The World Trade Centers in the Southern District of New York the Pentagon is in the Eastern District of Virginia for instance
Spencer: Right. Weeks afterwards, the skeletons, or the sort of holes in the ground were still smoking in New York the Pentagon still had a gaping hole in it even if the fires were out. Each district felt very passionate about prosecuting these cases. Eventually, it came down actually to a little bit of a showdown in the assistant attorney general’s office about which district would get to prosecute this gentleman name Zacarias Moussaoui. That became pretty clear that that would be the first case to be prosecuted. Before that, we had been working fairly well together. There were grand jury subpoenas issued out of the Southern District New York and out of the Eastern District of Virginia as part of the investigation. But in the end, I think the location, the close location of the Eastern District of Virginia to Washington D.C. and the feeling that the 4th Circuit U.S. Court of Appeals was more favorable to national security cases than was the 2nd Circuit U.S. Court of Appeals…
Rosenberg: Including on issues involving the Classified Information Procedures Act CIPA which we had talked about earlier in connection with the espionage work you had done.
Spencer: That’s right. And so, I think both those factors really militate it in favor of the east and risk of Virginia getting the case. I know there was concern about whether we would be able to seat a jury in a criminal case in the southern district or New York in a courthouse that was very close in proximity to still smoldering ruins of the World Trade Center.
Rosenberg: But as an accommodation, because these are two very fine U.S. attorney’s offices, you teamed up to investigate and prosecute the case.
Spencer: We did, and at that point on the Moussaoui case, which has become the only case tried about September 11th—
Rosenberg: –to this day, ever.
Spencer: To this day. The lead from New York was Ken Charisse who had just come off the al-Qaida, the trial of the al-Qaida bombers of the embassies in Kenya and Tanzania later Ken was replaced by–Ken actually was nominated and elevated to the federal bench in the Southern District York, and he was replaced by David Raskin another assistant U.S. attorney from Manhattan.
Rosenberg: But both Ken and Dave very talented prosecutors.
Rosenberg: Only one person was ever prosecuted in an article three civilian court in the United States for their role in the 9/11 attacks. That person was Zacarias Moussaoui.
Spencer: That’s right.
Rosenberg: Who is Zacarias Moussaoui?
Spencer: Well, Moussaoui grew up in southern France. He is of Moroccan origin. He actually got a master’s degree in the United Kingdom and he was arrested on August 16th, 2001 in Eagan, Minnesota. He drew suspicion by taking simulator training on a 747 jet simulator at the Pan Am international flight school. He had no business. He has 55 hours in a single engine propeller plane.
Rosenberg: And that drew attention?
Spencer: That drew attention. He was arrested for overstaying his student visa by the Immigration Naturalization Service.
Rosenberg: So, as I recall, Rob, and you’ll know the facts better than me: he came into the United States in February of 2001. Student visa would have permitted him to stay for three months. So, by August he was out of status. Is that fair?
Spencer: That’s right. And he originally went to Norman Oklahoma where he will try to get his private pilot’s license at a place called the Airman Flight School in Norman, Oklahoma.
Rosenberg: Did he draw attention there?
Spencer: Not really. I mean, I think people regarded him as sort of a quirky personality and that was true until 2006 when he was sentenced. He did not draw attention of law enforcement.
Rosenberg: Now, you had mentioned earlier that there were 19 Hijackers on four planes. And so, the math would suggest that he was the 20th hijacker, but in fact he was not.
Spencer: Yeah, he was called the 20th hijacker by the media. And in fact, he actually adopted that occasionally to sort of poke fun at the United States. But he wasn‘t. Our theory was that he was a backup pilot for the fourth aircraft when the putative pilot of that aircraft, Ziad Jarrah–
Rosenberg: We say pilot, you mean the hijacker pilot.
Spencer: That’s right. The person who would once the terrorists took over the plane, would actually fly the plane. So, on every plane, there was one person who had some flight training and other people who were trained in–we call them “the muscle,” but they would take over the aircraft.
Rosenberg: Once that plane was taken over, the muscle hijackers would keep the passengers subdued or away from the cockpit. And the pilot would destroy the aircraft and kill everybody on board.
Spencer: And many people on the ground too.
Rosenberg: Of course
Spencer: In the building.
Rosenberg: Even though Moussaoui was not the 20th hijacker, and even though he was in a backup role, he is absolutely a member of the 9/11 conspiracy.
Spencer: He was sent to the United States. He’s an al-Qaeda member. We knew that after 9/11 that he was an al-Qaeda member. There’s significant witness information that had seen him at a guest house talking to Osama bin Laden for example. We knew he was part of al-Qaeda after 9/11. He was sent to the United States to get flight training on August 10th, 2001 when one of the putative pilots, Ziad Jarrah, got a one-way ticket to go back to Germany to visit his girlfriend. Moussaoui was sent 10000 dollars via Western Union by someone using an alias “Jihad Sabet” using a false passport. That person was Ramzi bin al-Shibh. It was one of the central conspirators. So, Moussaoui was in fact a member of the plot, whether he was used on 9/11, or would be used for some other purpose. When we got to the trial, which was a trial on whether Moussaoui should receive the death penalty or not, in 2006, our theory was that Moussaoui had affirmatively lied to INS and FBI agents in August of 2001. And if he admitted then what he admitted when he pled guilty in the case in 2005, then the FBI and the national security apparatus of the United States would have been able to prevent the 9/11 attacks. So, our theory was that he was responsible for the deaths on 9/11 because he affirmatively lied to allow the plot to go forward.
Rosenberg: And his specific role would have changed had Ziad Jarrah not returned from Germany. Moussaoui would have moved into one of the pilot seats on that day, arguably. Talk a little bit about the investigation, and more specifically about the FBI, what they did in this case was extraordinary. I’d like you to describe that for our listeners.
starting on the morning of September 11th, 2001, the FBI swung into action and I think every agent and asset of the FBI was dedicated to the investigation.
Rosenberg: You’re talking an excess of 11000 special agents as well as all of their analysts, lab personnel, and support personnel.
Spencer: In addition to the FBI, there were many other investigative agencies. I mean, for example, the New Jersey State Police, the Port Authority Police Department–Port Authority lost a number of police officers in the World Trade Center. The NYPD, the New York Police Department, many other federal and local law enforcement agents lent support and were intimately involved in the investigation. It was the largest criminal investigation at least that I know of in history. There were squads in the New York field office of the FBI who would be dedicated to al-Qaeda. There was—
Rosenberg: Prior to 9/11–
Spencer: –Prior to 9/11, before 9/11, there was at Osama bin Laden unit at FBI headquarters, whose main responsibility was trying to find evidence on Osama bin Laden. At the CIA, they had people and resources dedicated to al-Qaeda. So, all those resources were dedicated to the investigation. There were the squad in New York many people dozens of FBI agents were relocated from New York City down to the Washington D.C. area and they stood up a squad that had a room in the basement of FBI headquarters: 1B999.
Rosenberg: I’ve been in that room.
Spencer: Was not very luxurious accommodations. And the FBI gave the investigation the name “Pentt Bom” P-E-N-T-T B-O-M. We basically–that investigation was given every available resource.
Rosenberg: “PEN” for the Pentagon, “TT” for the Twin Towers, and “BOM” to indicate the explosion.
Spencer: That’s right.
Rosenberg: Over time, though the FBI had really turned on a dime that day and dedicated all of its resources to the 9/11 investigation, the group investigating it and working with the Prosecutors got winnowed down to a core group of extraordinary agents. Who were they, and what did they do?
Spencer: There were a core group of agents a number of whom got moved from New York to Washington D.C. and eventually moved to the D.C. area permanently. Aaron Zebley, Jackie Maguire, Joan Marie Turchiano. Jim Fitzgerald, Matt Walsh, Brian Getson, and I could go on…Lisa I–they worked full time from September 11th 2001 until we concluded with the Moussaoui trial in May 2006. Some of them are still working al-Qaeda work to this day.
Rosenberg: Even at some point, a virtual FBI field office was stood up in the Eastern District of Virginia. So, these agents would be right next to the prosecutors working on a case, including you.
Spencer: That’s right. We had what are known as “SCIF,” secure classified information facilities, where they could look at classified information, process it on dedicated, closed system computerism, et cetera. But that’s right. We had FBI agents in our office.
Rosenberg: Talk a bit, Rob, about the volume of information that these agents and the prosecutors assigned to the case had to process.
Spencer: When the FBI does a report of investigation, it becomes what’s called a Form 3 0 2.
Rosenberg: That’s the form on which they record their interview.
Spencer: That’s right. Yes. And other investigative agencies have different indications. But these reports of investigations numbered in the hundreds of thousands, all relating to the investigation of how al-Qaida was able to do this, whether there was another attack that was imminent in the weeks after 9/11, et cetera.
Rosenberg: When was Moussaoui indicted?
Spencer: Moussaoui was indicted on December 11th 2001.
Rosenberg: For what?
Spencer: Well, being a member of al-Qaida being part of a conspiracy to kill Americans, using an explosive device in a crime of terrorism.
Rosenberg: You’re referring to the fact that the planes were each filled with jet fuel. As a matter of law, that’s an explosive device
Rosenberg: Were you seeking the death penalty?
Spencer: Yes, we did seek the death penalty. And that became a matter of some controversy. I mean, typically, when you have a murder case in one of the conspirators is in prison at the time of the murder, you would think that that person may not be eligible, didn’t pull the trigger, may not be eligible for the death penalty. Our view, and the view of the attorney general at the time, was that in this case a case of this magnitude, someone who was part of the conspiracy, someone who affirmatively lied to allow his terrorist brothers to carry out the plot to kill as many Americans as possible, should be eligible for the death penalty.
Rosenberg: I think that’s a really important point, Rob. The more typical death penalty case, the defendant has pulled the trigger. In this case, the act that led to the death of others, was the fact that Moussaoui had lied. Not only is that a difficult proof. I think it’s unique. I can’t think of another death penalty case where the act was predicated on a lie.
Spencer: I think that’s right. It was an affirmative lie that permitted the 19 others to go forward and kill nearly 3000 Americans.
Rosenberg: So, how did you prove that had Moussaoui told the truth in August when arrested by immigration officials–had he told the truth, he would have prevented the attack.
Spencer: In April of 2005, Moussaoui pled guilty to the entire indictment and we had him sign a relatively simple statement of facts. There were several basic points that he admitted to in that: he was a member of al-Qaeda, that there was an existing plot in the United States to hijack planes using short bladed knives—
Rosenberg: Which he knew about.
Spencer: –and fly them into buildings, and that he had received money by wire transfer in August to go get jet simulator training from a member of al-Qaeda. If he had disclosed those basic facts we put on a witness, FBI Agent Aaron Zebley testified that using those basic facts, it would have been possible. And the FBI would have found the 19 hijackers and dismantle the plot before September 11th.
Rosenberg: Essentially, in three plus weeks.
Spencer: The key to that is–I mean there were two keys. One if you look at the Western Union wire to Moussaoui on August 10th under the name Ahad Sabet. If you trace that back, you see that he came from Hamburg, Germany and the money went to Hamburg from the United Arab Emirates. The phone number used to transfer the money to Hamburg from the United Arab Emirates can be tied to some of the hijackers.
Rosenberg: And so, just using standard investigative techniques, cross-checking numbers and addresses, wire transfers, and the like, you would have located some number of the hijackers, including the pilot hijackers, in relatively short order.
Spencer: If you know al-Qaeda members are in training at flight schools and on jet simulators, it’s relatively easy to track down those people. After the fact, when the FBI went to some of these flight schools and jet simulator centers, and said you know if you ever heard of these people, the instructors at those places seem to remember all those hijackers they stood out. They were of Arabic descent, their English wasn’t particularly good, they seemed to be loners, and, and sometimes would exhibit extremist views.
Rosenberg: And their flight skills were rudimentary.
Spencer: Correct. Yeah. And particularly on jet simulators. If you’re flying a jet simulator like Moussaoui had 55 hours in a single engine propeller driven plane the other students at the Pan Am international flight academy on a 747 simulator, are military veterans looking to move to civilian aircraft pilot world, or already civilian pilots looking to upgrade or recertify their status as pilots of large multi-engine jet aircraft.
Rosenberg: There was another theory to the case, Rob. Not only would standard investigative techniques had Moussaoui told the truth leaders and other hijackers, but also, in his statement of facts, there is mention of a short-bladed knife. Why is that important?
Spencer: Well, our theory was that if the Federal Aviation Administration the FAA had realized that there was an extant plot to hijack aircraft using short bladed knives, that gate security could have been tightened to prevent people from getting on the planes with short bladed knives.
Rosenberg: At that time, it was permissible.
Spencer: At the time, it was permissible. And in fact, that the hijackers the 19 hijackers used to use box cutters–you know, very sharp razor blades contained in some type of handle. Moussaoui, when he was arrested, had two short bladed knives on him that he had bought in Oklahoma before going to Minnesota. And Moussaoui said that he knew that he would be able to get through a gate with a knife that had a blade shorter than his pinky. He, he told us that, he testified to that actually. And so, that was our that was our theory, that that would have allowed gate security to be tightened down, and, and would have prevented the hijacking.
Rosenberg: On 9/11, almost 3000 people died innocent people on the planes, in the towers, on the ground, at the Pentagon, in Shanksville, Pennsylvania. It was, and it remains, and I hope nothing ever approaches it, as the biggest mass casualty crime in United States history. How did you approach the victims of the case, including the survivors?
Spencer: Credit to this goes to David Novak, the third primary trial team member, who was a death penalty expert, assistant U.S. attorney in Richmond Virginia now a federal magistrate judge, and Dave used to cajole us all the time that we needed to treat this as a regular murder case, except with nearly 3000 victims.
Rosenberg: What does he mean by that?
Spencer: To go and find the victim impact evidence. To find out the effect of the murders on the families, on the loved ones, on the community. And so, we set up a system where we offered to interview the families of every victim, not only the families of those killed, but any surviving victims who wanted to talk to us.
Rosenberg: People who were injured, but who didn’t die.
Spencer: Right. Right. And so, we set up teams that were comprised of an agent or a police officer, a victim witness specialist, and a prosecutor. And any family or surviving victim who wanted to come in and talk to us, could come in and talk to us, and we held these sessions in New York, in Virginia, in New Jersey, and I think in Boston.
Rosenberg: Did you participate in that?
Spencer: I did. I did not go to New York I’d participated in the ones around the D.C. area. We actually among the prosecutors we divided up the flights. And I was primarily responsible for American Airlines 77, which was hijacked from Dulles in the Eastern District of Virginia in my home district, and flown into the Pentagon, also in my home district. So, I participated in a number of these for victims who were either in the Pentagon, and were killed or injured, or on American Airlines 77.
Rosenberg: What was that like, Rob? I imagine it had to be extraordinarily difficult.
Spencer: It was incredibly emotional it was both incredibly difficult and sad and there were moments of real joy when people would remember their loved ones, and you know, how wonderful these people were. But overall it was an exceptionally wrenching experience. You would have these sort of hard core New York detectives weeping along with the family. It was remarkable. I think we ended up talking to over thirteen hundred families. We also set up a file for every single victim we could identify. All the—at the time there were two thousand nine hundred seventy-two fatalities.
Rosenberg: There are more since.
Spencer: Yes, that’s right. Many people have died from illness or injury after the fact. I mean, for instance, the people who were first responders who have died of cancer since then. So that number has grown. But at the time of the trial, that was the number and also people who were injured and I credit Karen Spinks who was the victim witness coordinator in Alexandria Virginia.
Rosenberg: I’m glad you mentioned Karen. Tell us about her.
Spencer: She was a longtime victim witness coordinator in the U.S. attorney’s office in Alexandria, Virginia and she was fantastic and exceptionally empathetic person, could arrange anyone getting to trial, was great with the victims, was great comforting witnesses and victims, and I think it was Karen’s idea to set up a file for each victim, and families would send us clippings, letters, remembrances of their loved ones, photographs we put in, media articles about particular people, obituaries. And after we were done with the whole trial, the Smithsonian asked us for that information, and we passed it on.
Rosenberg: I remember walking around the first floor of the U.S. attorney’s office in Alexandria. It’s a five-story building, and the walls were lined with drawings and photographs. There were boxes everywhere, letters from people about those they had lost. It was breathtaking.
Spencer: It really was, it was a really sad but remarkable experience.
Rosenberg: Did you ever cry during those interviews?
Spencer: Yes, of course.
Rosenberg: Well, I sat in court every day for the sentencing phase, and cried every day.
Spencer: There were moments in the sentencing phase, particularly when the victim witness testimony was on, where there was not a dry eye in the house. There was a sketch artist for a major newspaper who said to me after the fact, “I’ve just never seen anything like this. The testimony was so emotional and so wrenching.” And he said: “I’ve always been opposed to the death penalty, but if there was ever somebody who deserved it, it was this guy.”
Rosenberg: One of the reasons you reached out to 13 hundred victims, was so that you could find some number who could testify at the sentencing phase of the Moussaoui trial, who could tell the story of grief and loss, so the jury would understand the victim impact of the case.
Spencer: And we selected about 50 Stories of victim impact, tried to represent those killed surviving family members: New York, Shanksville, Pennsylvania, the Pentagon, American Airlines 77, every one of the four flights…
Rosenberg: As well as more than 300 New York City firefighters, dozens of NYPD and Port Authority police officers, civilians on the ground, it’s almost an immeasurable loss.
Spencer: Those above the fire in the World Trade towers, those in the Pentagon–that’s right. We tried to make it representative and we tried to make the 50 victim impact stories compelling. At trial, during that phase of the sentencing, we were permitted to put on about 25 of these stories. We were limited by the judge, Judge Brinkema. But I think that was sufficient.
Rosenberg: What’s the purpose of an opening statement, Rob?
Spencer: It is to let the jury know what you will prove during trial, and in this instance, it was to, to recall the incredible horror and pain of that day and to emphasize Moussaoui’s role in it.
Rosenberg: Rob, you gave the opening statement in the Moussaoui trial at the penalty phase. I thought it was one of the most compelling, moving opening statements I’ve ever heard in federal court out of the mouth of any prosecutor. Would you read the first part of that for us today?
Spencer: Of course, Chuck. “September 11th, 2001 dawned clear, crisp, and blue and the Northeast United States in lower Manhattan in the Twin Towers of the World Trade Center. Workers sat down at their desks tending to e-mail and phone messages from the previous days. In the Pentagon, in Arlington, Virginia, military and civilian personnel sat in briefings, were focused on their paperwork. In those clear blue skies over New York over Virginia and over Pennsylvania, in two American Airlines jets, and two United Airlines jets, weary Travelers sipped their coffee and read their morning papers as flight attendants made their first rounds. And in fire and police stations all over New York City, the bravest among us reported for work. It started as an utterly normal day, but a day that started so normally and with such promise, soon became a day of abject horror. By morning’s end, 2,972 people were slaughtered in cold blood and that clear blue sky became clouded with dark smoke that rose from the Trade Towers of New York, from the Pentagon in Virginia, and from a field in rural Pennsylvania. And within a few hours out of that clear blue sky, came terror, pain, misery, and death. And 2,972 never again saw their loved ones, never again gave their kids a good night kiss. That day, September 11th, 2001, became a defining moment, not just for 2,972, but for a generation. Killers were among us that day, and for more than just that day. Those killers had lived among us for months, planned for years to cut our throats, hijack our planes, and crash them into buildings to burn us alive. On that day, September 11th, 2001, a group of cold blooded killers from distant lands capped their plan, their conspiracy, to kill as many innocent Americans as possible. Those killers, part of the terrorist group al-Qaida, came up with their plan, trained for it, practiced it, worked on it, kept it secret, and then carried it out, hijacking four commercial planes on September 11th, and crashing them on purpose to kill as many Americans as they could. One of the people in that plan, one of the conspirators, is among us still, right here in this courtroom today. That man is the defendant: Zacarias Moussaoui.”
Rosenberg: Rob, you said on one hand that Moussaoui pled guilty in 2005, but on the other hand, there was a sentencing phase in court. Explain the nature of a bifurcated death penalty proceeding, if you would.
Spencer: So, under the federal death penalty rules, a death penalty, once guilt has been established, a death penalty trial, which is what we had here, is broken into two phases one is whether the defendant is eligible for the death penalty by causing death, and the second is whether that defendant ought to be given the death penalty.
Rosenberg: So, talk about that first phase, whether the defendant whether Moussaoui was eligible for the death penalty.
Spencer: So, the question there really was what we had talked about earlier whether he caused deaths. The jury found that he, he had and we should proceed to the second phase which was whether he ought to receive a sentence of death.
Rosenberg: And that’s where the victim impact testimony becomes so important.
Spencer: That’s right. During the second phase of the bifurcated sentencing trial
Rosenberg: Did Moussaoui fight it?
Spencer: He fought it. I think he felt it was his duty as a sworn enemy the United States to fight it the whole way. Despite what some people say that terrorist would feel that he was a a martyr to be put to death at the hands of the enemy, I don’t think that qualifies as martyrdom, and he fought it the whole way. He testified in both phases of the sentencing trial.
Rosenberg: What did he say?
Spencer: Well, he basically took full credit and pleasure. He was happy that he and his brothers had caused nearly 3000 deaths. He pledged that he would try to kill every American he could until he got every one of us. Basically, he took considerable joy at the suffering that he had caused.
Rosenberg: And we talked about the FBI team, we talked about the victim witness specialists. There’s another group that is often unsung, it was the individuals who were appointed as his defense counsel to represent him. And I think it’s worth saying a word about them too, if you don’t mind.
Spencer: Moussaoui was given appointed counsel the United States.
Rosenberg: He couldn’t afford a lawyer.
Spencer: That’s correct. And the team initially was led by Frank Dunham, who is the public defender in Alexandria, Virginia. He was–Frank was supported by his staff at the Public Defender’s Office, the federal public defender, but he also had several lawyers who were private lawyers who were appointed: Alan Yamamoto who was a well reputed local criminal defense lawyer.
Rosenberg: Wonderful gentlemen.
Spencer: Ed McMahon, who was also a well reputed local criminal defense lawyer.
Rosenberg: And their job was to keep him alive.
Spencer: Their job was to keep him alive, and have him found not guilty, if possible.
Rosenberg: Even though they were among the Americans that Moussaoui wanted to kill.
Spencer: That’s correct.
Rosenberg: And your sense of their work?
Spencer: They did the very best they could under extremely difficult circumstances when you give a client who doesn’t trust you, whose avowed mission in life is to kill you and your fellow countrymen and doesn’t want to take your advice.
Rosenberg: They did their jobs as appointed defense counsel with great reverence for the rule of law and for their obligations to their client, whether or not their client liked it.
Spencer: And the other person I should mention on the defense team is Jerry Zircon, who dedicated his life to fighting the death penalty for everybody. And Jerry was their death penalty expert on the defense.
Rosenberg: Describe Moussaoui’s misconduct in court.
Spencer: I think before the trial he tried to be as mischievous as possible. He would write insulting pleadings in his own hand to the judge, would insult his own lawyers. I think he tried to throw as many monkey wrenches in the system as he could.
Rosenberg: Moussaoui was belligerent throughout the trial. He was an avowed killer. He reveled in the pain and misery that al-Qaeda had caused. Did he get a fair trial, Rob?
Spencer: He did. And I think he even admitted so after the fact. And I think that’s one of the things the trial stands for, is that we were able to give even our avowed enemy who told us at trial that if he could he’d come back and kill every one of us, a fair trial.
Rosenberg: Who was responsible for making sure he got a fair trial?
Spencer: Well, the system is set up in that manner. But a lot of the credit goes to Judge Leonie Brinkema, who presided over the trial.
Rosenberg: What do you mean by the system?
Spencer: Well, everybody, the judge, appellate courts, in this instance, the defense lawyers who were charged with providing him a defense, and the prosecutors who played by the rule, and the investigators who also played by the rules.
Rosenberg: It really is remarkable that somebody who wants to kill Americans and who despises our way of life, received, from Americans, a fair trial.
Spencer: I think that–I think we gained simply grudging respect even from Zacarias Moussaoui at the end of the case.
Rosenberg: Isn’t that one of the beauties of the Article 3 system? That it’s public, that anybody can walk into any courtroom anywhere in the United States and watch this system at work?
Spencer: Again, set up, yes it is, and it’s set up to be that way.
Rosenberg: What did the jury do in the end, Rob, with the Moussaoui case?
Spencer: We discussed earlier that the jury found that Moussaoui had caused death since it was eligible for the death penalty. Then, they listened to the evidence put on by the prosecution the victim witness evidence, impact evidence, and they also listen to the defense put on witnesses saying that Moussaoui should not be given the death penalty. In the end, the jury, they were hung. They did not find that he should receive the death penalty. And so, Judge Brinkema, in May of 2006, sentenced Moussaoui to six life terms. We learned later that the jury had hung 11 to 1 in favor of the death penalty.
Rosenberg: And to be clear, hung jury is anything other than a unanimous jury.
Spencer: That’s right. You can’t sentence someone to death unless it is unanimous: 12 jurors to none.
Rosenberg: How did you find out that it was 11 to 1 for the death penalty?
Spencer: So, in 2006 an acquaintance who is a law professor in Minnesota, and he put on a forum at which Ed McMahon, one of the defense lawyers and I talked about the trial, and during the question and answer period a gentleman stood up and said he was one of the jurors and he was the one who had voted against the death penalty.
Rosenberg: Did you talk to him?
Spencer: I didn’t talk to him one on one. There’s a standing rule in the Eastern District of Virginia that you cannot talk to jurors afterwards without the court’s permission. What I know is what he volunteered in a public setting.
Rosenberg: Over time, Rob, how do you feel about the verdict of the jury and your work on the case?
Spencer: I’m not a death penalty hawk. I think he deserved the death penalty. I respect the jury’s work tremendously. I think that the case is important for many reasons, we gave the victims a voice, we showed that a terrorism case even of this magnitude can be tried in the article three criminal courts in the United States, and I think that spending the rest of his life in prison, in solitary confinement, which is where Moussaoui is in the supermax penitentiary in Colorado, is a just punishment for him.
Rosenberg: And we should mention there is no parole in the federal system.
Spencer: There’s no parole in the federal system and he has multiple life terms.
Rosenberg: So, that’s where he will die.
Rosenberg: Rob, what’s an Article 3 court.
Spencer: Article 3 under the Constitution sets up the civilian justice system in the United States.
Rosenberg: So, it’s other than a military court, for instance.
Spencer: Right. Criminal cases brought by the United States are brought in the federal courts. That’s all set up by Article 3 of the Constitution.
Rosenberg: Moussaoui remains the only person ever tried in an Article 3 court in the United States in connection with the terrorist attacks of 9/11. Generally speaking, are article three courts equipped to handle these types of cases? What’s their record of success in handling terrorism?
Spencer: I think the record is undefeated. I mean, both the work done in the Eastern District of Virginia and the Southern District of New York and now in some other districts as well with which I’m less familiar, I think article three courts have shown time and again that the courts are equipped to handle major terrorism cases, handling the defendants appropriately, and not risking the release of classified information.
Rosenberg: Do you still think about the case and about the victims?
Spencer: Still do all the time think about the many, many teammates who worked on the investigation in the trial. Think about those still working on it, but particularly about the victims. And it’s remarkable to me every September 11th that rolls around that it’s been so many years since then. But it seems like just yesterday.
Rosenberg: That was the last case you ever tried, wasn’t it?
Spencer: It was right.
Rosenberg: How soon after did you leave the office?
Spencer: I left in July of 2006. The case ended and May 4th 2006.
Rosenberg: Do you miss the work?
Spencer: I do. Yeah, I mean, I’m pleased with how things have gone since then, but it’s again being a federal prosecutor is the greatest job in the world. It was really an honor and a privilege to have any part to contribute to the response to the September 11th attacks.
Rosenberg: I was your colleague for some of this. I was your U.S. attorney for a little bit of this. I want to say this about you Rob, and your team, a team of prosecutors and agents support personnel and paralegals of analysts and forensic scientists: it was the most extraordinary work I have ever seen in my entire Justice Department career. I’m in awe of what you all did.
Spencer: A lot of people worked very hard. I was privileged to have worked with such fine people.
Rosenberg: Very grateful to you, Rob, for sharing that story with us.
Spencer: Thanks for having me, and Chuck, it’s hard to believe, as I’ve said before, another year goes by. In some ways, it seems like a long-ways-off, and some days, it just seems like just yesterday.
Rosenberg: Thanks for sitting down with us on The Oath, Rob.
Spencer: Chuck, thanks for having me in.
Rosenberg: I appreciate all you’ve done.