The show trial must go on.

The law, lawyers, and the court.
March 13 2003 6:37 PM

The Show Trial Must Go On

John Ashcroft choreographs the show trial of the century.

Moussaoui: a victim of bad timing
Moussaoui: a victim of bad timing

With the capture this month of two bona fide al-Qaida bigwigs—Khalid Sheikh Mohammed (the alleged mastermind of 9/11) and Mustafa Ahmed al-Hisawi (the alleged money guy)—the U.S. government scored two spectacular victories in the war on terror. Yet, with each big fish they catch, they render the elaborate federal prosecution of Zacarias Moussaoui—the man being tried as the "20th hijacker"—more preposterous.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

The Moussaoui trial, a shambles almost from the first bang of the gavel, is on indefinite hold, postponed for the third time now, pending a Justice Department appeal of a ruling by the trial judge. Part of the problem is that in the year and a half since the war on terror began, the Bush administration has been unable to determine how it wants to treat captured terrorists. Legal analysts have struggled to discern a pattern in the government's inconsistent treatment of suspects, and finally one has begun to emerge: The truly dangerous criminal masterminds are interrogated indefinitely, the insignificant bumblers are tried as dangerous criminal masterminds, and the rest are left to rot in military jails. It's an interesting approach, but one can hardly call it justice.

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Moussaoui certainly hasn't done himself any favors over the course of his trial: First of all, he's nuts. Second, until very recently, he was so determined to grandstand and act out that he refused help from the only thing standing between himself and the death penalty: his highly capable defense team. But mostly, Moussaoui had the misfortune of being apprehended too early in the war on terror—back in the days when every al-Qaida member captured was styled by Attorney General John Ashcroft as Osama Bin Laden's blood brother. Arrested in August 2001—a month before the World Trade Center attacks—Moussaoui, like John Walker Lindh, is principally a victim of the silly hubris that led the Justice Department to brag in the weeks after Sept. 11 that everyone they apprehended was a central figure in the attacks. Lindh, who was first trotted out by Ashcroft as "an al-Qaida-trained terrorist" involved in a "conspiracy to kill nationals of the United States," ultimately pleaded guilty to only one of the 10 counts charged in the overheated indictment—a charge unconnected to terrorism altogether. Similarly, Moussaoui, labeled from the outset as the "20th hijacker," is trying to defend himself against an indictment alleging merely that he received some funds from al-Qaida and, like the 19 other hijackers, learned to fly and joined a gym.

Since both the Moussaoui and Lindh prosecutions have failed to become the Terror Trial of the Century, the Justice Department has stopped claiming that every guy they catch shoplifting is the evil genius behind 9/11. It certainly helps that in the past weeks and months, they may have actually caught the evil geniuses behind 9/11. But Ashcroft remains on the horns of a dilemma: He still wants the spectacular show trial, the catharsis needed by the nation and the international civics lesson on the wonders of American-style due process. But Ashcroft can't put the bigwigs on trial, both because they need to be interrogated for months, maybe years, and because the Moussaoui and Lindh trials have proved that granting American-style due process to terrorists is difficult, if not impossible.

So Ashcroft has made two decisions: The first is that all the rest of the second-tier terrorists will get no trials at all. That's why Yaser Esam Hamdi, a U.S. citizen captured with Taliban forces in Afghanistan, is languishing in a Navy brig, as is Jose Padilla, the alleged "dirty bomb" operative. Both are unable to speak to lawyers and denied the legal right to even contest the government designation of "enemy combatant." But since the Moussaoui trial is still supposed to be the big, cathartic 9/11 show trial, he has not been shipped off to Guantanamo or redirected to a secret military tribunal. Instead, this trial is allowed to plod ever onward, even as it becomes clear that the defendant was less the 20th hijacker than an unbalanced al-Qaida utility outfielder—the dreamy girl who stands between the second baseman and the center fielder and picks dandelions.

Last week, Colleen Rowley, the FBI whistle-blower who first charged the department with mishandling the Moussaoui investigation, sent a letter to FBI chief Robert Mueller and on to the New York Times. In it, she called into question the department's decision to win show trials rather than elicit terrorist information, charging that the FBI never followed up appropriately with either Moussaoui or Richard Reid, the convicted shoe bomber. "Lack of follow-through with regard to Moussaoui and Reid gives a hollow ring to our 'top priority'—i.e., preventing another terrorist attack," she writes. "Moussaoui almost certainly would know of other al-Qaida contacts, possibly in the U.S., and would also be able to alert us to the motive behind his and Mohammed Atta's interest in crop-dusting." Rowley's point—that the government turned its back on vital security information—is strengthened by the fact that Moussaoui practically begged in open court to divulge whatever information he had on the real terrorists, yet the government has apparently shown no interest in speaking with him or trying to arrange a plea deal.

There are only two possible explanations for this irrational behavior: Either the government never believed Moussaoui had any information of value to pass along (in which case they never could have believed him to be the 20th hijacker), or, as Rowley suggests, they believed him to be the 20th hijacker but were more interested in executing him than gaining information that might head off future attacks.

Ironically, as the government continues to apprehend more and more ranking members of al-Qaida, going on with the charade of Moussaoui's show trial becomes increasingly disingenuous. Moussaoui either was or was not the 20th hijacker, and we are in a good position to know which since we have the organizers of the attack in custody. But the government doesn't want to hear from them. The issue on appeal to the 4th Circuit this month is a decision by District Judge Leonie M. Brinkema, regarding Moussaoui's attorneys' right to interview Ramzi Binalshibh—an admitted organizer of the Sept. 11 attacks—captured last fall in Pakistan and now being interrogated at an undisclosed location. The indictment states that Binalshibh wired Moussaoui funds as part of the 9/11 conspiracy. But Binalshibh has stated during interrogation that Moussaoui was never part of the 9/11 plan because he was considered too unstable. That's exactly the sort of exculpatory evidence that Moussaoui is constitutionally entitled to present at his trial. Brinkema agreed, reportedly ruling in a sealed order that Moussaoui's lawyers could both question and call Binalshibh at trial. The government promptly appealed the decision, arguing that such questioning could disrupt a crucial interrogation and lead to the leaking of information harmful to national security.

Each new big fish caught by the government provides us with more information on the workings of al-Qaida and the nuances of 9/11. But they also provide Moussaoui with better defense witnesses, each of whom can confirm or deny the centrality of his role in the attacks. And if Moussaoui has a constitutional right to call Binalshibh, his right to call Mohammed is indisputable. When the 4th Circuit rules on the issue this month, they are legally obligated to take the fact that he faces the death penalty into account. It's time for the Justice Department to admit that Moussaoui was a small fish at best and to try him for whatever it is he did—as opposed to what we wish he had done. By continuing the fiction that he was central to the 9/11 conspiracy and denying him the right to disprove that, Ashcroft is making a mockery of the only show trial left in town.

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