Zacarias Moussaoui, the alleged 20th hijacker, wants to join his friends in martyrdom. In open court last week, he proved he's willing to waive competent counsel and go to the electric chair so long as he can destroy the American legal system by grandstanding at his trial.
Moussaoui used a pretrial hearing to offer a 50-minute diatribe calling for the "destruction of America" and "the destruction of the Jewish people." He insulted the judge and attacked his attorneys. Under the guise of a motion to fire his court-appointed counsel and quoting extensively from the Quran, Moussaoui called for a "fight against the evil forces of the federal government," for "Muslims who want to fight and spend ... money for the real day of judgment" and for other tidbits of generalized craziness (such as the return of Spain to the Muslims). It remains unclear from Moussaoui's babble whether he would prefer to have the court appoint Muslim defense counsel or if he'd rather represent himself. Given that allowing Moussaoui to proceed pro se will unleash a legal nightmare, there's no question that the most pragmatic option for Judge Leonie Brinkema would be to give Moussaoui a Muslim attorney he can work with, even if the law doesn't require such accommodation. But what if Moussaoui—recognizing that this trial affords him a direct connection to Al Jazeera—insists on defending himself? Should he be permitted to? And will he bring down the whole American system of justice if he does?
The Moussaoui trial calls into question many assumptions at the core of the U.S. legal system. For starters, the justice system is predicated on the assumption that an adversarial system will unearth the truth. But Moussaoui doesn't believe that ours is an adversarial system. He informed the court that "this judge is here as a field general, entrusted with the mission to get this matter over quickly." Moussaoui believes his own attorneys are pursuing "greed, fame, and vanity" as well as actively assisting the government in speeding him to his execution.
Another assumption is that open and public trials are better for the defendant, for justice, and for the public than closed and secret trials are. We believe that nonsense spouted by parties at trial will be revealed as nonsense when subjected to the "free market of ideas." But when an alleged terrorist and self-professed enemy of the state seeks to use a trial to broadcast his message, incite his confederates, and to possibly pass coded messages to America's enemies, the assumption that a free, open trial is best for this democracy is called into question.
Finally, we assume that even criminals are ultimately rational actors; that given a choice between sending a message and preserving his life, no defendant would reasonably choose to die and send a message. Sept. 11 tells us this assumption is no longer true either.
Defenders of military tribunals say the Moussaoui mess vindicates their position that Western freedoms and Western values are too good for terrorists unwilling to abide by the basic bargains that underpin Western life. And more alarming, Moussaoui's insistence that our legal system is corrupt will, in fact, corrupt the system. At every juncture, he will force the court to either grant his fundamental rights or risk violating them.To grant his fundamental rights may be to endanger the whole country. And to violate them is to undermine our most basic legal and moral values.
For example, long-standing American tradition preserves a defendant's right to examine the evidence against him, even when it's classified for security reasons. Usually the law allows defense counsel to review classified information, but only after counsel pass background checks and sign statements indicating they won't divulge the information. But our defendant wants to represent himself. Moussaoui's signature is worth less than the Bic pen he'd use to freely access state secrets. And while Judge Brinkema has the option of clearing only Moussaoui's "stand-by" counsel, Moussaoui's already made clear that he's only interested in lawyers who share his kind of "Islamic understanding." Brinkema may need to choose whether such lawyers should be entrusted with classified documents or whether to stage a show trial in which Moussaoui can't defend himself because he can't examine the evidence.
As Moussaoui also points out, the Sixth Amendment protects absolutely the right to represent oneself, even if one is a galactic idiot. In a 1973 case, Faretta v. California, the Supreme Court reasoned that "although [the defendant] may conduct his own defense ultimately to his own detriment, his choice must be honored out of 'that respect for the individual which is the lifeblood of the law.' " Moussaoui—so long as he's deemed mentally competent to do so, has the right to act as his own lawyer. Thus, even if you believe that citations to the Quran count as binding legal precedent in the Eastern District of Virginia, the Constitution gives you the right to mount your own defense. So, Brinkema must either let Moussaoui broadcast his message of hate or violate his constitutional right to do so.
The Constitution also guarantees the right to an open trial. Which is why Judge Brinkema's courtroom is full of reporters and the pleadings are available on the Web. So, Brinkema can either conduct this trial in secrecy, or (as she did last week) invite a suspected terrorist to step up to the mike.
The great irony here is that most criminal law experts agree that even a dismal lawyer could probably get Moussaoui acquitted on these conspiracy charges. The case against him is largely circumstantial, and the government faces a steep uphill battle. But the rules of evidence are complicated, and Moussaoui likely can't understand legal procedures well enough to mount a credible defense. Also, Moussaoui really doesn't mind losing his case and dying. In fact, he looks like he plans to enjoy it.
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.