Tuesday, January 5, 2010

Moussaoui Conviction Upheld

Good news, bad news.  The good news is that Zacarias Moussaoui's conviction has been upheld.  The bad news is that had he not pleaded guilty, the outcome would have been in doubt.  This case illustrates why the West needs to establish a new set of legal procedures to deal with the global Jihad.  Never before has Western civilization faced such a wide ranging and deadly threat as the current assault by Islam.  Inasmuch as the Muslim assault on the West will continue for decades, and we will over time capture more Islamist terrorists, there needs to be a unified system to deal with those who are captured.


Moussaoui Conviction Upheld  

[Andy McCarthy

The Fourth Circuit U.S. Court of Appeals has affirmed the conviction and sentence of 9/11 conspirator Zacarias Moussaoui. Enthusiasts of the law-enforcement approach to terrorism will undoubtedly claim this development as more evidence that their strategy works. To the contrary, I have argued several times (see, e.g., here and here) that we dodged a bullet with Moussaoui — i.e., if he had not surprised everyone by pleading guilty, if he had instead insisted on proceeding with his trial (not just the penalty phase but the guilt phase), the case might well have ended disastrously.

The Fourth Circuit's 78-page decision bears me out. The appellate court notes that Moussaoui claims it was error for the trial judge to interfere with his unqualified right to represent himself; "to have personal, pretrial access to classified, exculpatory evidence"; and to be able to summon witnesses like co-conspirator Khalid Sheikh Mohammed for trial testimony. The Fourth Circuit acknowledges that all these claims have merit, but the court finds that Moussaoui, by pleading guilty, waived any claim of prejudice. Opinion at pp. 24–28. Even more alarming, the Fourth Circuit concedes that its waiver rationale is inconsistent with a decision by the Ninth Circuit on which Moussaoui relies — i.e., if the Fourth Circuit had followed the Ninth Circuit, there's a good chance it would have had to agree that, regardless of the guilty plea, Moussaoui's convictions should be reversed.

The Fourth Circuit also reminds us that the trial judge initially struck the death penalty from the case because the government refused to give Moussaoui access to the al-Qaeda prisoner witnesses. The Fourth Circuit reversed the judge at the time, but on the condition that it would be open to revisiting that conclusion if the government failed to provide Moussaoui with all the classified exculpatory information to which he was entitled. At that critical moment, Moussaoui decided to plead guilty. That is, we never found out what would have happened if Moussaoui had insisted on a trial at which he'd have access to all these witnesses and other national-defense information. The guilty-plea is deemed to have waived any claim by Moussaoui that he was denied the information to which he was entitled.

In the next case — like, say, KSM's civilian trial — the defendants will be smart enough not to plead guilty. They will insist on getting every piece of intelligence they're entitled to. And the prosecutors will look at this ruling on Moussaoui's appeal and realize they'd better give it to them or risk having the case thrown out. That's what the law-enforcement approach buys you.