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Judge orders FBI to explain missing Moussaoui e-mail

Moussaoui

ALEXANDRIA, Virginia (CNN) -- A federal judge has ordered the FBI to explain why it did not investigate an e-mail account of accused terrorist Zacarias Moussaoui in the days after his arrest last summer.

In an order released Wednesday, U.S. District Judge Leonie Brinkema allowed Moussaoui to hire a information technology expert to inspect computers that he used to access his e-mail last year in Minnesota and Oklahoma, where he lived while attending flight schools.

"Given the intense law enforcement attention focused on Mr. Moussaoui after September 11, 2001, we do not understand why an immediate and thorough investigation of the defendant's e-mail and computer activities did not lead investigators to the xdesertman@hotmail.com account, if it existed," Brinkema wrote.

Moussaoui is the only person publicly charged in the United States in connection to the September 11 terrorist attacks. His trial is expected to begin in January and he could face the death penalty if convicted of the most serious terrorism and hijacking conspiracy charges.

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In a motion to the court, Moussaoui had requested records from his e-mail account as part of the evidence he is entitled to review before trial, suggesting the government may have collected information from the address and not presented it to him. His motion and the government's reply raised the question of why the FBI didn't seek to inspect Moussaoui's e-mail earlier.

The government has stated in court papers that it can no longer check Moussaoui's e-mail activity because his Internet provider, Microsoft Network Hotmail, erases users' account information after 30 days of inactivity and has no means of retrieving records of user activity 90 days after an account is dormant.

Brinkema noted that the FBI found a receipt for using the Internet at a Eagan, Minnesota, copy shop among Moussaoui's belongings when he was arrested on August 16, 2001. The receipt showed Moussaoui had been there just four days earlier.

The judge ordered federal prosecutors to obtain an affidavit from the appropriate FBI official "explaining how and when, if at all, the FBI examined the contents of the defendant's computer," as well as the Kinko's computer, computers at the University of Oklahoma and of a one-time roommate in Norman, Oklahoma.

Agents from the FBI's Minnesota office, most notably Coleen Rowley, have complained they were stymied by FBI headquarters in obtaining court permission to inspect Moussaoui's laptop computer after his arrest.

The government has contended it has already presented the defense with information found on computers at the school and the roomate's home.

"The affidavit must indicate why investigators were unable to retrieve any information from MSN Hotmail and/or any other computers or accounts searched," Brinkema ordered. She also asked the FBI to state whether the CIA or National Security Agency helped in this part of the investigation.

Moussaoui, 34, a French citizen, is representing himself but is being assisted by a team of court-appointed attorneys serving as so-called "standby counsel." Brinkema asked them to find a computer expert.

Due to the voluminous evidence in the case, which includes hundreds of computer discs and hard drives, Brinkema agreed to a defense request to postpone Moussaoui's trial from this fall to next January.

Moussaoui is charged with conspiring with the September 11 hijackers. Prosecutors say he underwent paramilitary training in al Qaeda camps in Afghanistan in 1998 and received money wired from the hijacking cell in Hamburg, Germany, last August.

-- From CNN's Phil Hirschkorn and Joshua Levs.