The judge won't rule on Moussaoui's motion to represent himself until she has seen the results of his mental exam. Yesterday, Brinkema ordered that Dr. Raymond Patterson (whose examination of John Hinckley kept him confined to a mental hospital over his doctor's objections) perform a competency exam on Moussaoui and determine whether he is mentally fit to stand trial and fit to fire his lawyers. While in some jurisdictions courts require a higher level of mental competency to fire one's lawyers than to stand trial, the 4th Circuit follows the rule laid out by the Supreme Court in a 1993 case, Godinez v. Moran, holding that the standard of competence for waiving counsel is identical to the standard of competence for standing trial. According to the Supreme Court's holding in Dusky v. United States,Moussaoui need only be competent enough to confer with his lawyers and understand the charges against him. It's doubtful that even his suicidal religious extremism will be enough to render Moussaoui mentally incompetent under that test.
So, what is Judge Brinkema to do? Does she chip away at American constitutional freedoms—Moussaoui's right to see the evidence against him, his right to self-representation, his right to an open trial—all in the name of keeping him on a short leash? Or does she let him hijack this trial for the delectation of his buddies back in Afghanistan?
To condone chipping away at constitutional rights is to suggest that becoming more brutally repressive—or more like them—is the American way in times of trouble. It suggests that we never really trusted any of our ephemeral democratic ideals in the first place. In any liberal society, it's sometimes necessary to hold one's nose and admit that ephemeral high-minded rights are never as important as they are in times of war when accorded our enemies. If we really do believe in the freedoms and rights that represent the warp and woof of this democracy, it's absurd to argue that they stop at U.S. borders or that we can just put them on pause during wartime. If we really believe in the free marketplace of ideas, we'll have to allow Mr. Moussaoui to put his own asinine convictions on the block. Be warned: It will be ugly. Be warned: Our enemies will hoot with joy. But what's the alternative? If 200 years of constitutional ideals can't withstand the taunts of one angry little lunatic, we shouldn't be fighting a war to defend them. Moussaoui can go ahead and trash this trial, trash U.S. morale, giggle with his terrorist buddies, and embarrass the court. He still won't have taken our whole justice system down with him, unless we give it to him.