'MOUSSAOUI - SPINNING A LEGAL WEB - 27 MAY 2003'
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Moussaoui Is Spinning A Legal Web
and Machinations Delay Terror Prosecution
Zacarias Moussaoui stood before a stunned federal courtroom in Alexandria in April last year, prayed for the destruction of the United States and fired his court-appointed attorneys.
Several months later and half a world away, authorities burst into an apartment in Pakistan and arrested Ramzi Binalshibh, the self-described coordinator of the Sept. 11 terrorist attacks.
Those two events have sent the case of Zacarias Moussaoui -- the only person charged in the United States in connection with the Sept. 11 attacks -- on a strange and tortured path that virtually no one could have anticipated when Moussaoui was indicted with great fanfare 17 months ago, legal experts said. Although many figured his case would be over by now, it instead is about to be argued before a federal appeals court in Richmond before it even gets to trial.
"This case has become, in a lot of ways, simply unmanageable," said Eric H. Holder Jr., a top official in the Justice Department during the Clinton administration.
The government and others boasted that Moussaoui would receive swift justice in an open courtroom as a showcase for the world about the fairness of the U.S. judicial system. Now those same people say privately that the system has been turned on its head.
When the U.S. Court of Appeals for the 4th Circuit hears arguments next week on a government appeal of a ruling granting Moussaoui the right to interview Binalshibh, the judges will be evaluating an admitted terrorist whose defense has relied on the core rights of the legal system he is accused of trying to destroy.
Seizing on his right to represent himself, Moussaoui has insulted his standby lawyers, blasted the judge and taunted the Justice Department with a stream of blistering handwritten motions and courtroom outbursts.
Seeking witnesses on his behalf, he and his attorneys have turned the government's success in capturing al Qaeda leaders against it by persuading a federal judge in late January to grant the deposition of Binalshibh, whose interrogation is considered so vital that officials won't even reveal where he is held.
That raises the previously unthinkable prospect of an admitted al Qaeda sympathizer interviewing the man accused of planning the attacks -- for the purpose of securing his acquittal on charges of conspiring in those attacks.
"This is kind of a train on a track set by the Constitution and the way the system works," said Andrew McBride, a former federal prosecutor in Virginia with extensive 4th Circuit experience. "It gives defendants a lot of rights, and it should. This defendant and his attorneys have exploited every one of them. Everybody has played by the rules, and this is just where the rules have gotten us."
Many experts agree, and they add that despite the delays and secrecy, the Moussaoui case has turned out to be just the right showcase for the judicial system. "This is the way the system works, and I don't see that it's all that bad," said John Martin, a former Justice Department official who has prosecuted terrorism cases. "Because of the rules and because of our Constitution and because of our criminal procedures, I don't think this can be handled any other way by the government. Ultimately, I think Moussaoui will be dealt with in a fair and evenhanded manner."
People involved in the case and other legal experts still believe that the government has a strong case against Moussaoui and that his decision to represent himself could easily backfire at trial. Nevertheless, it remains uncertain whether there will be a trial, because government sources have said military and intelligence officials will not allow Moussaoui to interview Binalshibh if the 4th Circuit upholds the ruling by U.S. District Judge Leonie M. Brinkema.
Moussaoui, a French citizen, is charged with conspiring with al Qaeda members to hijack planes and crash them into U.S. buildings. He faces the death penalty if convicted.
The appeal stems from Brinkema's ruling that ordered the videotaped deposition of Binalshibh. Moussaoui and his attorneys believe, and Brinkema agreed, that Binalshibh has evidence that could help the defense. The government contends that Binalshibh's statements to interrogators actually implicate Moussaoui in the plot.
The government appealed Brinkema's ruling to the 4th Circuit, invoking extraordinary national security powers in arguing that civilian courts cannot interfere with military decisions. Defense lawyers have said Moussaoui's right to interview witnesses is a hallmark of the Constitution and numerous court rulings.
The investigation of Moussaoui has been complicated from the moment he became known to Americans as the man with the menacing look who allegedly sought flying lessons just before Sept. 11 and later swore his allegiance to Osama bin Laden.
He was arrested more than three weeks before Sept. 11, 2001, when his behavior aroused suspicion at a flight school in Minnesota. Refusing to cooperate, Moussaoui became the object of rampant speculation about whether he was supposed to be the 20th hijacker, fly a fifth plane or perhaps be ready for some post-Sept. 11 mission. To this day, officials are unsure of his exact role, but to secure a conviction, they don't have to prove what he was supposed to do, only that he knowingly and willingly participated in the plot that led to Sept. 11.
The case at first appeared to be proceeding smoothly through the Alexandria courthouse, known throughout the country as the "rocket docket," for the speed with which cases move from indictment to trial. A trial date was set for October 2002.
Everything changed April 22, 2002. Interrupting a routine hearing, Moussaoui raised his arm, one finger to the sky, and announced that his court-appointed attorneys "are not anymore my lawyers."
As onlookers gaped, Brinkema ordered a psychiatric evaluation to ensure that Moussaoui was competent to represent himself. In June, she ruled that he was, but she kept his attorneys as standby counsel.
The rocket docket, which often sent cases to trial within 70 days of indictment, slowed to a crawl; the trial has been delayed three times, and no new date has been set.
"The government thought they had this neat little package of a case that was going to go down the chute. Instead, Moussaoui refused to play ball," said Frank W. Dunham Jr., the federal public defender, who is on the standby team.
Some observers fault Brinkema for allowing Moussaoui to represent himself.
"That's one of the critical points where things got off track," McBride said. "She could have said that although he is competent, he doesn't understand our system of justice, and he can't have access to national security material."
[TVOTW Insert -
1. Millions in the U.S. and around the world have serious misgivings and concerns about the "system" and administration of "justice" in the U.S. anyway and;
2. Who decides what constitutes - "national security material"? Such a claim is totally open to abuse and has been used extensively, dishonestly and illegally as a pretext to cover up wrongdoing by the government and bureaucracy to the extent that fundamental rights are removed or denied.]
But McBride conceded that Brinkema may have had little choice, because the Supreme Court has granted criminal defendants the right to self-representation. The government also did not oppose Moussaoui's move.
"Would it have made things easier? That's a possible argument," said one government official. "The problem for the government is, if you don't allow him the right to represent himself and you get a conviction, it is subject to attack."
By last fall, the issue of Moussaoui's access to captured al Qaeda detainees also was bubbling. Although Dunham declined to discuss the issues under appeal, he said he realized as early as December 2001 -- when the U.S. military was crushing al Qaeda's base in Afghanistan -- that the defense would have to seek detainees as possible witnesses.
"When the government went to war, they knew they were going to kill people with knowledge of Sept. 11, and they had to reasonably anticipate that they would capture people with knowledge of this thing," he said.
Prosecutors would not comment, but one government official said "it was pretty much out of everyone's foresight that people like Binalshibh or [al Qaeda operations chief] Khalid Sheik Mohammad would be captured."
This official and outside observers pointed out that even if the government anticipated the captures, little would have changed, because the government's priority is preventing future attacks. "The captures were a great step forward," the official said, even if "it makes certain aspects of cases difficult."
Soon after Binalshibh was arrested, around the first anniversary of the Sept. 11 attacks, Moussaoui's standby attorneys began making informal requests for access, sources said. Moussaoui filed his first motion about Binalshibh in the fall. The government resisted, fearing any access would disrupt a key interrogation and harm national security. After a series of motions from Moussaoui and his attorneys, Brinkema issued her ruling in late January. That ruling also denied defense motions for access to other al Qaeda detainees, a source close to the case said, because Brinkema found that the defense had not shown that they could help Moussaoui's defense.
Now, the case hinges almost entirely on what the 4th Circuit judges decide. Some observers think the situation was inevitable.
"Our court system was not designed for matters that are the conduct of war," said Victoria Toensing, a Washington lawyer who created the terrorism unit in the Justice Department during the Reagan administration. "This case was like the stepsister's foot in Cinderella's shoe. It was never going to fit."
© 2003 The Washington Post Company
[TVOTW Note - Referring to the above paragraph - the whole thing is a sham and a travesty of justice in relation to a so-called - war.
There is no war. Every action and every aspect of the conduct of the U.S. from the day the first bomb was dropped on Afghanistan on 7 October 2001 - is illegal. It is illegal in the extreme and it constitutes the worst possible case of crimes against humanity on a catastrophic scale as well as many other crimes, breaches and violations of international law.
The events of 911 are major crimes by individuals. As such - they are a police matter - are required to be dealt with by the criminal justice system under the Constitution - by a public trial in open court - by an impartial jury.
In any event - a judge - or the prosecution - are not empowered under the Constitution or any other measure of the rule of law to direct how a defendant should best present his defence to the charge or charges contained in an indictment in order to successfully defend himself.
Dunham has also highlighted the glaring and criminal conduct of Bush and the Executive setting out to kill anyone who may have knowledge of the attacks on 911 and who may have been responsible for their planning and implimentation. This has been done to eliminate any and all evidence and/or persons who could testify as to the extent of prior warning that Bush and the Executive had of the attacks.]
TVOTW - ICOPO
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