Campaign 2008

More
jurisprudence
columns

Bringing Guantanamo Home
The lawlessness abroad was never very far from home.
Dahlia Lithwick
posted Oct. 11, 2008
"One Dollar for Every West Virginian"
The crazy judicial corruption case that the Supreme Court should hear.
Amanda Frost
posted Oct. 10, 2008
Bad Cop
Why Obama is getting criminal justice policy wrong.
Radley Balko
posted Oct. 6, 2008
Ten To Toss
Readers nominate the 10th Bush order that the next president should scrap.
Emily Bazelon
posted Oct. 3, 2008
Where the Trail Leads Next
What does the inspector general's report on U.S. attorney firings really mean for the Justice Department?
Dahlia Lithwick
posted Sept. 29, 2008
Search for more jurisprudence articles
Subscribe to the jurisprudence RSS feed
View our complete jurisprudence archive

jurisprudence: The law, lawyers, and the court.

When You Can't Beat 'Em …Since everyone wants to kill Moussaoui, he'd be nuts not to agree.

By Dahlia Lithwick
Posted Tuesday, April 19, 2005, at 5:24 PM ET

Pleading guilty, but to what?

Zacarias Moussaoui is back.

After pleading guilty and then un-pleading; after representing himself (like a madman) and then not representing himself; after three years without a trial and years of appellate court wrangling that culminated in the Supreme Court's refusal last month to intervene in the case and grant him meaningful access to potentially exculpatory witnesses, Moussaoui has evidently written a letter to his trial judge, Leonie Brinkema, agreeing to plead guilty and accept the death penalty.

Brinkema says she will meet with him in person this week, to determine whether he is mentally competent to enter such a plea, and then set a date for a death-penalty trial—under a bifurcated system one doesn't simply plead guilty and then hop in the chair.

First, question whether Brinkema is in any better position to assess Moussaoui's mental health now than she was three years ago; then ask whether Moussaoui, who has already pleaded guilty and changed his mind, could have become saner over the years. When the proceedings against him began, he was already filing crazy paranoid letters and making rambling paranoid speeches. Three years of confinement, under highly restrictive special administrative measures, can't have helped his mental state.

What's truly distressing about this turn of events is that Moussaoui may just have decided to accept the bizarre government position in this case: that he should be executed for being a poster boy for al-Qaida. Whether he now hopes to become a martyr, or to fast-track his case to the Supreme Court, or whether he's finally been beaten down by everyone else's unremitting craziness, remains to be seen.

The participants in this case now seem to agree on several key points: Even the government concedes that Moussaoui was not meant to be the "20^th hijacker." He was probably too unstable even to participate formally in the Sept. 11 plot. (Indeed, the latest military report from Guantanamo lists a detainee there—a Saudi man named Mohamed al-Kahtani—as the "probable 20^th 9/11 hijacker".) Still, both sides apparently agree that Moussaoui is a card-carrying Osama Bin Laden fan who would have liked to kill some Americans himself given the chance. Everyone also appears to agree that Moussaoui should be eligible for the death penalty. Even though no one is certain what he's done to earn it. Can they really kill you just for belonging to al-Qaida, if you have no specific ties to any plot or conspiracy? Will the Justice Department and Judge Brinkema simply stuff their fists into their ears to avoid hearing Moussaoui plead guilty to crimes he could not have committed, in light of the story he has told for the past three years—a sort of modified plea bargain in which the government ignores the legal nuance in order to score the execution?

Unless he's about to change his story (again) and cop to having known intimately about Sept. 11, this guilty plea and Moussaoui's willingness to accept being eligible for the death penalty are the outcome of the circular logic that has pervaded the prosecution's case from the outset. Moussaoui must die because this was intended to be the big 9/11 show trial that would end in an execution. Somehow, even if he's the wrong guy being executed for the wrong conspiracy, this case will prove to the world that the American court system really works.

But in allowing him to plead guilty to a crime he didn't commit, the system really isn't working. Moussaoui should not be declared guilty—and certainly should not be executed—unless the government can convict him of crimes that fit the facts to which he can admit, be that providing material support to terrorism or some other serious crime.

If Moussaoui is put to death based on today's facts, his case will be filed, ultimately, in the same Gross Injustices file as Yaser Esam Hamdi's. That alleged soldier, picked up on the battlefield in Afghanistan, weapon in hand, was held in solitary confinement for months on end—until it came time to try him in open court, at which time the government promptly released him because they had no case. John Ashcroft always picked his terrorism poster boys before he knew whether they were really criminals or just wacky low-level losers. Which has meant that the administration has been forced to treat each of these cases as a crime of the century long after it became clear the facts were not going to support such grandiose claims.

Hamdi is now a free man in Saudi Arabia. But Moussaoui may well die, because the insanity of the system under which he's been relentlessly prosecuted marginally outweighs his own.