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What the Moussaoui Circus Portends for the KSM Trial

Expect terribly amused jihadis to very much enjoy the terribly stupid idea of using a criminal court to try KSM.

by
Dan Miller

Bio

January 12, 2010 - 12:00 am

On January 4, the U.S. Court of Appeals for the Fourth Circuit issued a 78-page opinion in the case of Zacarias Moussaoui, who had been convicted and sentenced to life in prison without the possibility of parole for his part in the “man-caused disaster” which befell New York City and Washington, D.C., on September 11, 2001. The court upheld the decision in all respects. The next stop will probably involve the Supreme Court.

The case is interesting not so much for the legalities involved, but for illuminating the ability of Moussaoui and others like him to turn the United States criminal justice system into a farcical mockery of itself on the world stage, with jihadists and future jihadists as the most receptive audience.

Use of the civilian criminal system in such cases demonstrates that the system is fair and based on the Constitution and laws of the United States. Fortunately, most U.S. citizens are aware of that, and no extended demonstration is necessary. Unfortunately, the folks to whom the Obama administration hopes to demonstrate the fairness and goodness of the system most likely think it’s amusing and will continue, as did Moussaoui, to milk it to the extent possible in support of their cause — jihad.

The Fourth Circuit opinion provides substantial background on what happened before and after September 11. Moussaoui was deeply involved in the planning of the September 11 events and intended to commandeer a fifth aircraft and crash it into the U.S. Capitol building. Khalid Sheikh Mohammed, of Gitmo, whom the Obama administration insists on trying in a federal civilian criminal court in the United States, was also deeply involved in the planning of the September 11 attack. Fortunately, Moussaoui was captured on August 16, 2001, before he had an opportunity to attempt his own flight into fame.

Moussaoui was indicted in December 2001 for his participation in the conspiracies that led to the 9/11 attacks. Superseding indictments identified one hundred and ten “overt acts committed by Moussaoui and his al-Qaeda co-conspirators, both in the United States and abroad, including the 9/11 attacks.” Counsel were appointed by the court, and Moussaoui was arraigned on January 2, 2002. He declined to enter a plea, an action which the court properly determined to be a plea of not guilty. On January 7, the Department of Justice imposed Special Administrative Measures (SAMs) on Moussaoui, intended to:

… prevent Moussaoui from passing coded messages to or otherwise communicating with other terrorists. The SAMs permitted Moussaoui to have unmonitored attorney/client and consular communications and mail, monitored visits and telephone calls with immediate family, and monitored mail with all others. Approved mail would be forwarded to defense counsel for distribution to Moussaoui and Moussaoui would be notified of any seized mail. Because the case involved classified national security information, the government also sought and received a protective order (the “Protective Order”) under the Classified Information Procedures Act (CIPA). See 18 U.S.C.A. app. 3, § 3 (West 2000). Under the terms of the Protective Order, access to classified information produced by the government in discovery was restricted to persons with the necessary security clearances, which included defense counsel. The Protective Order therefore allowed disclosure of classified information to defense counsel, but not to Moussaoui personally unless the government consented or the district court determined that making it available was necessary.

Then the circus began. Moussaoui was not pleased with the counsel appointed for him, and he wanted to proceed pro se with the assistance of Muslim counsel:

In April 2002, [court appointed] counsel for Moussaoui filed a motion requesting that the SAMs restrictions be lifted to permit Moussaoui to have an unrestricted visit with “[a]n Islamic scholar, referred to … as John Doe.”

The prosecution opposed this request:

The district court ultimately denied the motion, concluding that the government’s allegations against Moussaoui were supported by probable cause and that it would be too dangerous to allow an unnamed “John Doe” unfettered access to Moussaoui.

Then it got more weird:

At the hearing held on the motion to lift the SAMs … Moussaoui stated that he in fact never had any intention of speaking with John Doe and that his request was simply an excuse to come to court so he could move to proceed pro se. Moussaoui complained that his appointed attorneys had “no understanding of terrorism, [Islam, or] Mujahedin,” … and that the government was “preventing any Muslim help” from reaching him. … Moussaoui told the court that he intended “to hire [his] own chosen Muslim lawyer to assist [him] in matters of procedure and understanding of the … law.” … Moussaoui explained, however, that he sought Muslim counsel only for assistance with witnesses and material necessary for his defense, and that no attorney — including any Muslim counsel chosen by Moussaoui — would ever represent him. Moussaoui also demanded that the court “not … engage in any communication or relation with [his] Muslim lawyer, concerning any aspect of [his] case.”

Appointed defense counsel requested a competency examination based on Moussaoui’s fervent desire to proceed pro se. He was found competent and allowed to proceed, more or less pro se, with counsel standing by to assist him. However, Moussaoui insisted that even Muslim counsel not attend the court hearings and only work as his assistant outside the court, but not as counsel of record.

Then:

The court also informed Moussaoui that Randall Hamud, a Muslim attorney hired by Moussaoui’s mother, was in the courtroom, but Moussaoui refused to meet with him.

Things continued to proceed oddly. On July 18, Moussaoui offered a plea of guilty. The court explained the consequences of doing so and gave him a week to think it over. Appointed counsel asked for another competency examination.

Moussaoui again expressed his belief that the jury might find him more credible and decline to impose the death penalty if he pled guilty. However, Moussaoui was ultimately unwilling to admit to the facts necessary to support a guilty plea to the charged conspiracies and withdrew his request.

There were several interlocutory appeals of various rulings:

During the pendency of [an early] appeal, the district court revoked Moussaoui’s right to proceed pro se. Since October 2003, the district court had received over twenty filings from Moussaoui, “most of which [were] not proper requests for appropriate judicial relief.” These filings “[included] veiled, and in some cases overt, threats to public officials, attacks on foreign governments, attempts to communicate with persons overseas, and efforts to obtain materials unrelated to this case.” … After the district court specifically warned Moussaoui that he might lose his right to continue pro se if he continued this course, Moussaoui filed two additional improper pleadings, and the district court revoked Moussaoui’s pro se status. … Moussaoui would later testify that his writings were intentionally designed to promote his agenda of disseminating propaganda about al-Qaeda’s war against the United States.

Eventually, on March 29, 2005, after the Supreme Court had denied certiorari in one of the interlocutory appeals, Moussaoui advised the district court that he wanted to enter an unconditional plea of guilty to all charges. The court explained the consequences of doing so and, following exploration of his understanding of the nature of the plea and its consequences, accepted the guilty plea on April 22. A fascinating and detailed statement of facts was prepared and placed in the record. (It is summarized on pages 15-18 of the Fourth Circuit opinion.)

The court then proceeded to a bifurcated sentencing proceeding, the first phase of which required a determination of whether the death penalty might be appropriate, and the second phase of which required a determination of whether, if appropriate, it should be imposed. (Facts elicited during phase I are recited at pages 19-21 of the Fourth Circuit opinion.) Among the revelations is that statements from KSM himself were received during the phase I proceeding:

According to KSM, Bin Laden first pursued the idea of the planes operation in 1998. KSM stated that the planes operation included plans for a first and second wave of attacks and that “the original plan called for Moussaoui to lead the [second] attack operation in the [United States].” … The first wave of attacks was to be carried out by Arab al-Qaeda associates on the East Coast. The second wave of attacks was to be carried out by non-Arab associates (such as Moussaoui) on the West Coast because KSM believed the non-Arabs would still be able to operate in the heightened security expected after the first wave.

At the conclusion of the phase I proceeding, the jury found Moussaoui eligible for the death penalty; then the phase II proceeding began. Moussaoui elected to testify and claimed that he should not be executed because (a) life in prison would be worse punishment and (b) he might be useful as a bargaining chip in an exchange for someone captured by al-Qaeda. He also addressed:

… the passionate and offensive documents that he had filed during the course of his prosecution, including pleadings asserting that the district court judge was trying to kill him, referring to them as “psychological warfare [propaganda].” … Moussaoui explained to the jury that “when I saw something that I [believed] I could exploit or I could [use to] psychologically damage you, whatever, by propaganda, I will do it.” … Moussaoui also admitted that he told his psychologist that his pro se pleadings were being published and that “Muslim people around the world have … been made happy or have been motivated by them.”

The jury eventually imposed life in prison without possibility of parole.

Then Moussaoui sought to retract his guilty plea:

… claiming that his “understanding of the American legal system was completely flawed” and asking for a new trial “[because] I now see that it is possible that I can receive a fair trial … even with Americans as jurors and that I can have the opportunity to prove that I did not have any knowledge of and was not a member of the plot to hijack planes and crash them into buildings on September 11, 2001.” … In other words, Moussaoui sought to withdraw his guilty plea (and contradict the sworn testimony he had just given) because he had been successful in the penalty phase proceedings.

The district court properly denied the motion, and the appeal to the Fourth Circuit followed. The judgment of the district court was affirmed in every respect. Presumably, the Supreme Court will be the next stop. There are some interesting legal questions, and I have no idea what the answers to them will be. A case cited by Moussaoui and noted in the article linked immediately above U.S. v. Hernandez strikes me as so factually different from Moussaoui’s that it offers no justification for reversal. It is, of course, nonetheless possible that the Supreme Court will overturn the Fourth Circuit decision in Moussaoui, so any joy found in the Fourth Circuit decision by those who favor civilian criminal trials for foreign terrorists may be premature. Regardless of the ultimate outcome, the possibilities flowing from the civilian KSM trial strike me as bad or worse.

I suggested here that KSM should have been kept in detainee status at Gitmo indefinitely. A decision released by the Court of Appeal for the D.C. Circuit on January 5, 2010, al Bihani v. Obama, suggests that this would have worked quite well. Although KSM would probably have been entitled to a detainee habeas corpus hearing, the standards in such cases are far less stringent for the government than in other cases. Among other things, reliable hearsay evidence was held admissible. The court observed:

Habeas review for Guantanamo detainees need not match the procedures developed by Congress and the courts specifically for habeas challenges to criminal convictions. Boumediene’s holding explicitly stated that habeas procedures for detainees “need not resemble a criminal trial,” 128 S. Ct. at 2269. It instead invited “innovation” of habeas procedure by lower courts, granting leeway for “[certain] accommodations [to] be made to reduce the burden habeas corpus proceedings will place on the military.”

Interestingly, Judge Brown, the author of the court’s opinion, wrote her own separate concurring opinion: “It is important to ask whether a court-driven process is best suited to protecting both the rights of [Gitmo] petitioners and the safety of our nation.” Based on the full text of her concurring opinion, it is apparent that she thinks the answer is “no.” She opined:

In this case, I remain mindful that the conflict in which Al-Bihani was captured was only one phase of hostilities between the United States and Islamic extremists. The legal issues presented by our nation’s fight with this enemy have been numerous, difficult, and to a large extent novel. What drives these issues is the unconventional nature of our enemy: they are neither soldiers nor mere criminals, claim no national affiliation, and adopt long-term strategies and asymmetric tactics that exploit the rules of open societies without respect or reciprocity.

Right on.

The record in Moussaoui’s case should be highly instructive for all sides in the upcoming trial of KSM. It should have caused the Obama administration to reject the civilian trial of KSM, but it obviously did not.

Now, it seems highly likely that during the next seven or eight years we, and the rest of the world, will be exposed to a new and improved circus performance under the baton of KSM. There will be lots more as well, including painstaking consideration of the extent to which KSM’s prior statements, some of them probably compelled in possible violation of what are now seen as his rights under the United States Constitution, may properly be used before the grand and later the trial jury, and whether they may properly be used in obtaining other evidence.

The guidelines in this area are discussed in the recent Blackwater case. There the prosecution, possibly in an overzealous effort to secure a conviction due to the Iraqi anger they knew any other result would produce, screwed up badly. The same thing seems even more likely in the KSM case, where any ultimate result short of imposition of the death penalty could well infuriate enough U.S. citizens to further diminish President Obama’s already declining popularity. The prosecution will be between the rock of a need to secure a popular conviction and the hard place of having to do so in a civilian criminal proceeding very ill suited to the task. The defense should have a blast, and KSM should be ecstatic. Will his civilian criminal trial in any way result in diminution of “man-caused disasters” in the United States or abroad? Will the promised closing of Gitmo? Perhaps briefly, but only because the jihadists will be too busy laughing at us to attempt them.

Although a relatively small fish, the contemplated civilian criminal trial of the young Nigerian underwear bomber may provide similar entertainment and involve some of the same questions.

Were it the proper function of the United States judicial system to provide entertainment to onlookers in a theater of jihad, that would be fine. That is not my understanding of the purpose of the system.

Dan Miller graduated from Yale University in 1963 and from the University of Virginia School of Law in 1966. He retired from the practice of law in Washington, D.C., in 1996 and has lived in a rural area in Panama since 2002.
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