Justice Delayed

The Atlantic Magazine, March 2006

Whatever happened to Zacarias Moussaoui?

Moussaoui is the only person criminally charged in the United States for taking part in the September 11 conspiracy. He pleaded guilty to the charges against him last spring without a deal to spare him the death penalty. So he now faces a jury trial, with opening arguments scheduled for early March, to determine his sentence.

Given the magnitude of the crime and the fact that Moussaoui, a French citizen of Moroccan descent, admits his guilt, he seems unlikely to be spared—though at the time of the attack, he was locked up on federal immigration charges. If and when he is condemned to die, all sides in the debate over the war on terrorism will likely claim vindication. The Bush administration will embrace the verdict as a big win. Civil libertarians will argue that Moussaoui’s conviction in a domestic, civilian court shows that the regular justice system is up to handling big-time terrorism trials. The administration’s critics will use the case to discredit the military tribunals the Pentagon has created at the Guantánamo Bay Naval Base in Cuba.

Don’t believe a word of it.

Why not? What will the real message of the Moussaoui trial be?

Moussaoui’s case shows only that American courts can try an al-Qaeda figure if the government lucks out. Moussaoui is a nutcase who tried to represent himself, filed crazed pleadings, and made ludicrous courtroom speeches in which he repeatedly compromised any potential defense by admitting to key elements of the charges against him—for example, that he was a member of al-Qaeda, pledged to attack America. For months, he refused to cooperate with his court-appointed lawyers. And when the judge took away his ability to act as his own counsel, he pleaded guilty—thereby relieving the government of the burden of proving a tricky case.

Despite the lucky breaks, if the government ultimately succeeds in getting the death penalty, it will have taken an extraordinary effort: five years of litigation up and down the appellate ladder, millions of dollars, and a docket so long that a mere computer listing of the public documents filed in the case takes up over 160 pages. The case exposed daunting problems in trials like these: how to handle massive volumes of classified information and, more particularly, potential witnesses whom the government is holding and interrogating overseas and refuses to produce for security reasons. A defendant more inclined to demand his rights and less inclined to turn the courtroom into a circus could have made these proceedings more difficult than Moussaoui did.

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