The Trial of Zacarias Moussaoui: A Legal Lynching?

American leaders are often heard around the world describing the U.S. as a nation that believes in the rule of law. Too often, however, when observers assess the U.S. government’s conduct in domestic and foreign affairs – vis-à-vis this professed attachment to the “rule of law” – a question arises: ‘What is this law of which they speak? Is it akin to the type of law that the famous poet, Kahlil Gibran, spoke of in his celebrated work, ‘The Prophet?’

“Then a lawyer said, But what of our Laws, master? And he answered:
You delight in laying down laws, yet you delight more in breaking them. Like children playing by the ocean who build sand –towers with constancy and then destroy them with laughter.”

On Monday, March 6th, I sat among a crowd of people in the large seventh floor overflow courtroom to watch the start of a precedent setting sentencing trial on video monitors. The main courtroom of presiding U.S. District Court Judge Leonie M. Brinkema was already filled to capacity. It was the first day of the sentencing trial for the only man to be criminally charged for the crimes committed on September 11, 2001; a 37 year old French national of Moroccan descent, Zacarias Moussaoui.

The atmosphere surrounding this high-stakes show trial had all of the anticipated trappings. There was a heavy media presence both in and outside of the courthouse. In addition to the heightened security in and around the courtroom, there was a large, diverse, and very visible police presence all around the outside perimeter of the courthouse. A message was clearly being conveyed that some very serious and potentially dangerous business was going on in the U.S District Court for the Eastern District of Virginia.

As I sat in the courtroom and listened to the opening arguments, a question that had been nagging me for some time began to resonate with even greater intensity: Does this case constitute nothing more than a legal lynching?

By the government’s own stipulation, Zacarias Moussaoui had no direct involvement in the attacks of September 11th – and yet a trial has begun, in a U.S. federal court, to determine whether this young man will be executed, or will spend the rest of his life in a maximum security prison, for crimes that were committed by alleged associates of his on September 11, 2001!

According to the official record, Zacarias Moussaoui was arrested in August 2001 (before the attacks of 9/11) for “overstaying his visa,” after his behavior at an Eagan, Minnesota flight school aroused suspicions. When questioned by investigators on why he was taking flying lessons in the U.S., Moussaoui allegedly stated that it was “an ego-boosting thing,” even though his real (alleged) intent was to fly a plane into the White House – in what was supposed to be a later, post 9/11, terrorist operation.

The government’s case rests on the question of whether Moussaoui lied to FBI investigators following his arrest; and if so, whether that lie factored into the success of the September 11th conspiracy. The government maintains that if Moussaoui had told the truth about his links to al-Qaeda and his own post 9/11 intentions, the government might have uncovered the September 11th conspiracy and prevented at least some, if not all, of the attacks that occurred on that day.

The lead prosecutor argued that once Moussaoui decided to talk to FBI investigators, he waived his right to remain silent; and once he began talking he was obligated to tell the truth and divulge everything that he knew. In documents filed with the court, the government has asked that the judge provide jurors with the following instruction before deliberations: “Under the Constitution, a defendant may elect to remain silent when he is arrested; however, if he chooses to speak to law enforcement officers, he has an affirmative responsibility to tell the truth.”

In the past, lying to federal authorities could result in an automatic five year prison term upon conviction. In this case, however, the ante has been raised considerably. In opening arguments the prosecutor spoke at length about al-Qaeda, its alleged links to other “terrorists” and “terrorist organizations” around the world, and its hatred toward the United States, culminating in the attacks of 9/11. He then proceeded to state:

“One of the conspirators is among us still… His lies provided the operational security that his brothers needed… With his lies he caused the death of nearly 3,000 people.”

The lead attorney for the defense began his opening arguments by emphasizing that the Statement of Facts that Zacarias Moussaoui signed – in pleading guilty on April 22, 2005 to six conspiracy counts (after more than three years of court battles) – makes no mention of the attacks of 9/11. “Judge him on the facts of what he has done – not as a [convenient] scapegoat, or the focus of revenge for 9/11,” the defense argued. “He had a dream to attack the White House, but he couldn’t even fly an airplane, according to the government’s own witnesses,” MacMahon argued.

And then, in reference to an issue that will surely garner a great deal of focus as the trial continues, the defense made note of some of the many government failures that might have made a difference had they been acted upon or heeded. “Our government had many early warnings that Muslim fundamentalists were planning attacks with planes.”

The defense spoke about the “bureaucratic bungling” and “infighting among agencies” that hindered the investigative process. It spoke of two of the 9/11 hijackers who were tracked in Malaysia, but who failed to be tracked in the United States – who were “not even flagged to be prevented from boarding U.S. commercial aircraft.” By the time Moussaoui arrived in the U.S., the defense contended, “the 9/11 conspirators had already been in America for nine months or more.”

The defense also noted Moussaoui demeanor, “He was not discreet!” He openly declared $32,000 in cash when he arrived, and registered for flight training; but instructors didn’t want to fly with him because his skills were so bad. He reportedly asked “absurd questions” about the [Boeing] 737; he also reportedly made a scene at a local mosque. It was also noted that “other fundamentalists who knew him” didn’t think too highly of him. “There will be Muslim witnesses from overseas who will testify that they considered him unstable and unreliable,” the defense noted.

One of the most ironic pieces of evidence, for the defense, was the video footage of former U.S. Attorney General John Ashcroft testifying before The September 11th Commission. Ashcroft was shown making critical remarks about “the wall” that prevented the sharing of intelligence between agencies, and the contributing factor that it was to the attacks of September 11th.

It should also be noted in this regard that during a motions hearing on Thursday, March 2, Judge Brinkema rejected defense efforts to subpoena Rep. Curt Weldon (R-PA), who also contended that the government knew more about the September 11th hijackers (before the attack) than it had previously acknowledged. (Weldon argued that his congressional immunity exempted him from having to testify for the defense.)

As this process continues to unfold new revelations will no doubt come to light. If Zacarias Moussaoui is in violation of the law, let him be punished – but let the punishment fit the crime! True justice requires proportionality. A death sentence (in a case like this), or even life imprisonment, looks like nothing less than a legal lynching to me. (Surely Allah knows best.)