The square peg of terrorism and the round peg of criminal-justice

Tod Lindberg:

THE legal case of Zacarias Moussaoui, the so-called "20th hi jacker" and the only person hauled into U.S. criminal court for playing a direct role in the 9/11 attacks, has been a morass from the beginning.

Prosecutors have struggled to shove the square peg of international terrorism into the round hole of the criminal-justice system. With an erratic defendant throwing away due legal protections and at times insisting on acting as his own counsel, extensive wrangling over the use of classified evidence and access to testimony from other al Qaeda detainees, scores of court filings, rulings and appeals, and finally a judge's finding of egregious government misconduct during the trial, one must ask: Is this the best we can do?

Moussaoui's complicity in the 9/11 conspiracy is not in doubt. Whether you think he deserves the death penalty for his involvement probably comes down to the question of whether you favor the death penalty under any circumstances.

But suppose Moussaoui had agreed to cooperate with an aggressive legal defense. Suppose his lawyers had vigorously contested his links to the 9/11 plot. Suppose, rather than presenting himself as the proud al Qaeda member he is and pleading guilty to his involvement, Moussaoui had shut up and asserted his constitutional protection against self-incrimination. Would the government still have prevailed?

Suppose, moreover, that Judge Leonie Brinkema had decided that the proper remedy for the prosecution team's misconduct (a Transportation Security Administration lawyer, coaching seven witnesses to keep their stories straight, showed them testimony they were barred from viewing) was to prohibit the government from seeking the death penalty or to declare a mistrial and start the whole thing over. What a mess.

The judge decided, in the end, to let the government go ahead with different, untainted air-security witnesses. But that's also a bit troubling: Was this the disinterested rule of law alone at work? Or is Moussaoui perhaps too monstrous to let slip on a "technicality," which, in truth, this was worse than?

...

The 9/11 conspiracy was in key respects different and worse, and not just because of the death toll and the sheer horror of the day. An "ordinary" criminal is just trying to get away with something - pursuing a private gain at the expense of the public. The last thing a thief wants is to have what he has stolen in turn stolen from him. He believes in and benefits from the law; he just doesn't want to see it applied to him.

In the 9/11 conspiracy, however, something else was at stake. A crime, but more than a crime, it was in principle aimed at the overturning of the social order and the law altogether. Osama bin Laden was reportedly surprised and pleased when the towers collapsed; this exceeded his expectations. He saw it as God's handiwork and, God willing, the first blow in the downfall of the United States.

The designation "enemy of the people" is one that states have sometimes deployed in order to justify monstrous acts against those so designated. We are right to be wary of the term and any hint of loose application. But we would be wrong to deny its applicability in the case of Zacarias Moussaoui.

Excessive focus on the plight of victims is dubious enough in ordinary criminal proceedings. It tends to encourage us to forget that we are seeking to vindicate the rights of all the people, not just the victims.

It is even worse in the case of Moussaoui, where the "criminal" sees himself first and foremost as an enemy of the United States, whose downfall he seeks, and which he sought to further by participating in the 9/11 conspiracy. By pursuing him in criminal court, the U.S. government obscured the stakes in this case.

When warfare and lawfare collide, it makes for a mess. I agree with Lindberg, that Had Moussaoui cooperated with a competant defense attorney, and those who were appointed on his behalf appear competant, then he would have had a good chance of acquital. Yet, he is a man who would have committed mass murder, if he were free. He should have been put before a military tribunal.