The Clipboard: What Was Moussaoui's Crime?

From an article¹:

No one is arguing Mr. Moussaoui is innocent. It's increasingly clear he was training for a different mission, and good lawyering will allow us to prosecute him for whatever he intended to do. But as egregious as Mr. Moussaoui's sins may be, our legal system must reflect the principles by which we live: no one should be found guilty of a crime he did not commit. Unless we intend to try every Qaeda member we can find with capital conspiracy for Sept. 11, we must try Mr. Moussaoui for whatever crimes he committed, and not for the crimes we wish we could avenge. (link - registration required)

This is a very interesting article, worth reading.

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Complete text of the article, What Was Moussaoui's Crime?, by Dahlia Lithwick

Last week the alleged "20th hijacker," Zacarias Moussaoui, changed his plea for a third time in pretrial proceedings in federal court in Virginia. Mr. Moussaoui has now tried every possible plea: attempting not to plead at all, pleading no contest, pleading guilty and, finally, pleading not guilty to conspiring in the events of Sept. 11.

Some see his erratic behavior as evidence of insanity. Others argue that Judge Leonie M. Brinkema is shamefully letting a crazy man represent himself. But there is a third party to this case, and it deserves its share of the blame for Mr. Moussaoui's conduct: the United States government, which deliberately charged him with a crime that it couldn't prove.

Most of the public and much of the news media may believe the government has a solid case against Mr. Moussaoui. With a careful reading of the indictment in the case, however, this certainty begins to falter. The indictment is a colorful and dramatic depiction of the Sept. 11 attacks, detailing the assembling of the hijackers and their preparations in a perfect narrative arc.

But the story it tells is hardly an airtight case against Mr. Moussaoui. Periodically, the indictment splices in parallel activities of Mr. Moussaoui — weaving his actions into the story of what happened Sept. 11 the way Tom Hanks was spliced into historical footage in "Forrest Gump." The indictment never connects him to the other 19 hijackers — who were interconnected with one another — and never suggests he even met them. Save for a single money transfer to Mr. Moussaoui from someone also transferring funds to the group, nothing in the indictment ties him to these men beyond his membership in Al Qaeda.

Scrutinizing the indictment, three possibilities emerge: the government is not presenting crucial evidence tying Mr. Moussaoui to the Sept. 11 attacks; the government has no evidence tying Mr. Moussaoui to the Sept. 11 attacks; or federal conspiracy law is so infinitely elastic that Mr. Moussaoui could receive the death penalty for simply buying knives, learning to fly and training in Qaeda camps.

Most trial watchers assumed the first possibility was true: the government could tie Mr. Moussaoui to Sept. 11, but chose not to do so in the indictment. But Mr. Moussaoui, who fired his lawyers, opted for door No. 3. He made it clear last week that he'd been operating under the assumption that under United States law, he was guilty of conspiring to kill thousands of Americans on Sept. 11, simply because he was a member of Al Qaeda and had operated a guest house. He did not change his plea until Judge Brinkema painstakingly explained to him: "If you're standing in court today and saying, `I am a member of Al Qaeda and provided a guest house, but I never intended or I never agreed to kill or maim persons in the United States,' then you're not agreeing to this particular conspiracy." Mr. Moussaoui simply made the mistake of taking the government's expansive reading of conspiracy law at face value.

This may explain a good deal of Mr. Moussaoui's bizarre conduct to date. He behaves like a paranoid lunatic because, until last week, he believed he was facing the death penalty for Sept. 11 just for being a member of Al Qaeda. Under the government's version of the law — the only version to which he had access — he assumed he was being paraded in a show trial that was more about revenge than justice.

There are several reasons the government may have charged Mr. Moussaoui with a conspiracy he never knew about. It could be hoping to leverage a better plea bargain. By charging him with a capital crime, it can disqualify any juror who opposes the death penalty, thus ensuring a more conservative jury. Most profoundly, finding him guilty of conspiring in the attacks would begin to avenge the atrocities of Sept. 11.

But this is no way to fight terror. Frankly, military tribunals or a life sentence in a military brig would be preferable.

No one is arguing Mr. Moussaoui is innocent. It's increasingly clear he was training for a different mission, and good lawyering will allow us to prosecute him for whatever he intended to do. But as egregious as Mr. Moussaoui's sins may be, our legal system must reflect the principles by which we live: no one should be found guilty of a crime he did not commit. Unless we intend to try every Qaeda member we can find with capital conspiracy for Sept. 11, we must try Mr. Moussaoui for whatever crimes he committed, and not for the crimes we wish we could avenge.

reference=http://www.nytimes.com/2002/08/02/opinion/02LITH.html?ex=1029309184&ei=1&en=0001bd467b6bb5a3