Ashcroft's folly.

The law, lawyers, and the court.
July 24 2003 4:36 PM

Ashcroft's Folly

How the attorney general lost the Moussaoui trial before it began.

From the get-go, the trial of so-called "20th hijacker" Zacarias Moussaoui has been hamstrung by a Justice Department that seemingly wanted one prosecution to serve half a dozen irreconcilable ends. With a single deft trial, Attorney General John Ashcroft had hoped to avenge the evil of Sept. 11 for all Americans, while showcasing the even-handedness of the American justice system for the rest of the world. He wanted to soothe us with proven legal truths: He did it, and he paid for itwith his life. And Ashcroft thought he could demonstrate to terrorists everywhere that transparency and due process would triumph over theocracy and prejudice. But as this prosecution unravels, indecision on the part of the Justice Department reveals nothing less than the government's own lack of faith in the courts.

Advertisement

Moussaoui—intent on defending himself—undid the government by using transparency and due process to embarrass the prosecution and allegedly compromise national security. The man refused to go quietly, insisting on challenging the evidence against him and exercising his full range of rights as a criminal defendant. The prosecution—applying a broad new theory of conspiracy law—didn't help matters by filing an indictment shot through with circumstantial evidence and unsupported speculation. And so Moussaoui, considered nuttier than a Snickers bar when this trial began almost a year ago, suddenly looks like a Jeremiah. His ongoing contention—that the proceedings are nothing more than a "death show trial" jiggered to result in his execution—suddenly looks to be true.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

The latest wrinkle in the Moussaoui trial—the Justice Department's categorical refusal to comply with Judge Leonie Brinkema's Jan. 31 order allowing Moussaoui to depose captured al-Qaida commander and alleged 9/11 mastermind Ramzi Binalshibh—merely confirms that Justice has lost its way altogether. Unsure what this prosecution is supposed to stand for, they have settled into a pointless standoff. Because the government simply refuses to produce the witness as required under the Sixth Amendment, Judge Brinkema will impose sanctions next week that could range from striking counts from the indictment, removing the possibility of the death penalty, or dismissing the case altogether. Brinkema's prior orders demonstrate her belief that the federal government shouldn't have brought this case if it didn't intend to afford the defendant his basic constitutional rights.

It's widely agreed that virtually any sanction imposed by Brinkema will lead the government to remove the Moussaoui prosecution to a closed military tribunal. The government might appeal Brinkema's sanctions to the 4th Circuit Court of Appeals before that happens—but that conservative court has already refused to assist the prosecutors on the Binalshibh issue. It's unclear how the trial could proceed if the government blocks Moussaoui from deposing the one witness known to have exculpatory testimony. (Binalshibh has reportedly told interrogators that Moussaoui was simply too goony and unpredictable to be trusted for the 9/11 plot, which would seem to spell the end of the prosecution's case.) The Justice Department now claims that the Sixth Amendment does not extend to enemy combatants held overseas—a novel argument with little support in the case law.

So the judge and prosecutors are trapped in a game of chicken: Prosecutors want the judge to do something that would force them to remove the proceedings to a closed tribunal while pinning the blame on her. Brinkema wants the government to do something that will make it impossible for the trial to proceed. Ultimately, neither wants to be held responsible for what will be perceived as the crushing failure of the U.S. justice system.

The question remains: If the inevitable end to this waiting game is that Moussaoui is carted off to a military brig, where he will be tried and likely executed with limited rights and no appeal, why did Ashcroft bring this criminal case in the first place? Was it misguided optimism, or did he cynically believe that he could provide an open criminal trial without affording the defendant basic rights? Why wasn't Ashcroft content to charge Moussaoui with the crimes he's admitted, such as being a member of al-Qaida who was training to kill Americans? Why did they prosecute him as the "20th hijacker" when there has never been any evidence that he was? If the feds genuinely believed Moussaoui was a key 9/11 player, wouldn't they have plea-bargained with him for every name and detail of the plot and gone after everyone involved? Wouldn't it make sense to use Moussaoui to convict known mastermind Binalshibh, for example—land the big fish and free the hapless goof?

Perhaps most crucially, why is it that the attorney general has such grievous doubts about the justice system that he refuses to allow Moussaoui to depose Binalshibh? Throughout this trial, national security has clashed with legal due process—but Binalshibh should not have been the issue to scuttle the trial. The DOJ excuse—that allowing Moussaoui to depose his witness poses a blanket threat to national security—rings hollow. For one thing, the prosecution has already proffered to Moussaoui much of the information Binalshibh would provide in a written document. For another, Brinkema ordered that Moussaoui could only conduct a videotaped deposition of Binalshibh via secure hookup with a built-in time delay, so prosecutors could shut things down if secret messages were being passed. And if Moussaoui and Binalshibh are both poised to be locked up (or worse) for life, then why are we so terrified of the possibility that they might pass information back and forth? What is Ashcroft really afraid of here?

That depends on why this case went to trial in the first place. If Ashcroft really wanted to showcase the U.S. court system for the world, allowing Moussaoui to depose exculpatory witnesses would have been crucial. If Ashcroft really wanted to bring the 20th hijacker to justice, he would never have filed this case in the first place: Moussaoui just isn't the guy. If Ashcroft wanted a scapegoat—someone to offer the nation closure, à la Tim McVeigh—Moussaoui would have been tried secretly before a tribunal and would likely be dead by now. And if Ashcroft truly wanted to know details about al-Qaida operations in the United States, Moussaoui would be detained as an enemy combatant, interrogated till his head popped off, and locked away for life.

The truth behind the utter failure of the Moussaoui trial will not be that the U.S. court system was inadequate to the task of convicting a terrorist but that the attorney general had insufficient faith in the system to let it do its work. By bringing bogus charges, making grandiose claims, and standing in the way of anything resembling a fair trial, the government has proved that you can't stage a mockery of a trial and expect real justice to result.