What the Moussaoui Circus Portends for the KSM Trial

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.