Cross posted from TomPaine
In an Alexandria, Virginia, courtroom, Zacarias Moussaoui and the federal government are acting out for the nation and the world a small drama about revenge. It is hardly clear who will savor revenge more: the defendant who seems likely to be strapped to the executioner's gurney soon, or the state that injects the lethal combination of fluids.
What is beyond doubt, however, is that the most important issues raised by a prosecution like Moussaoui's are largely going unnoticed by the press and unheeded by the public-lessons about the risks of tomorrow rather than the sins of yesterday. Has the government learned from its pre-9/11 mistakes? Are its investigative and prosecutorial powers being well-deployed, or wasted in wild goose chases? The half-formed answers evident from the Virginia proceeding are far from comforting.
Prosecutors argue that Moussaoui's failure to tell police what he knew of the 9/11 plot makes him culpable for the resulting deaths. The government's pivotal evidence comes from Moussaoui himself, who boasted in court of knowing the hijackers and of intending to fly a plane into the White House. Moussaoui undermines his own credibility by regularly punctuating his appearance in the courtroom with shouts of "God curse you America," or "Burn in the U.S.A."
Moussaoui's testimony is contradicted by the government's own intelligence, extracted from Khalid Sheikh Muhammad, who described Moussaoui as an untrustworthy fringe figure with no contact with the 9/11 hijackers. As senior counsel to the 9/11 commission John Farmer explained and Dahlia Lithwick of Slateseconded , "Moussaoui will claim martyrdom as he is executed." Thus, Zacarias Moussaoui will have his twisted and foolish revenge on America: Being recorded (likely falsely) in legal annals as an accomplice to the 9/11 plot.
The nation will be no safer if Moussaoui's wish is granted. What has been proven by the case so far, though overshadowed by media interest in the defendant's outbursts, is that significant and ongoing failures have plagued the U.S. intelligence community. There is also basis for concern that the Moussaoui prosecution is deflecting attention away from the government's problematic use of the criminal law and intelligence agencies to fight the "war on terror."
Consider first what the Moussaoui trial tells us about the FBI. Rather than a well-oiled machine foiled only by Moussaoui's obdurate refusal to talk, the trial has confirmed the story of missed opportunities narrated by the 9/11 Commission : Even if Moussaoui had evidence, it is not clear that this evidence would have percolated up through the clotted national intelligence bureaucracy to push senior officials into action.
In August 2001, Minnesota FBI agent Harry Samit warned Main Justice that Moussaoui was a dangerous terrorist, and that his training to fly a Boeing 747-400 seemed part of a sinister plot. But officials in Washington edited Samit's memo, and pressed him to tone down his alarmist tone. According to the 9/11 Commission, the government had enough to "join the dots." It did not do so in part because it could not sort signal from noise-that is, discern Moussaoui's significance against the background of many other leads. FBI Agent Samit told the jury he sent about seventy warning messages about Moussaoui. But to no avail.
This was not the only internal shortfall. Commenting on government efforts to track Khalid Al Midhar and Nawaf Al Hazmi, two other 9/11 hijackers, the 9/11 Commission pointed to failures of information sharing. The reason for these shortfalls, explained the Commission, was that "everyone involved was confused about the rules governing the sharing and use of information."
The foreshortened trial and prolonged sentencing of Zacarias Moussaoui have also diverted attention from other issues raised by the use of the criminal law. While the criminal justice system ought to be a key resource in counter-terrorism efforts, it is hard to tell whether this resource is being used poorly or well. Are law enforcement officers and prosecutors identifying and responding to real threats, or are they leveraging vague laws to net high conviction rates for minor offenses in order to persuade the public that they are doing a good job? Of course, those who commit terrorist acts may have little criminal history; the perpetrators of the July 2005 London bombings are a case in point. Successful prosecutions may rely on minor offenses or "inchoate" offense, such as conspiracy, which do not require the final criminal act to be committed. Indeed, the more successful the police are, the less criminal conduct will have occurred.
These are desperately difficult questions of public policy: Rather than focus on them, press, public and government are enthralled by Moussaoui's antics. The difficulties are illustrated by the findings of a survey conducted by the Center on Law and Security at the NYU School of Law of reported criminal cases involving terrorism charges between September 2001 and October 2004.
The NYU report starts with the caution that "accurate and comprehensive information is almost impossible to obtain." This alone ought to be pause for thought. How is it that we the public do not even have a clear idea of underlying patterns of terrorism prosecutions? The study goes on to note that only 5 percent of individuals prosecuted have been charged with direct acts of terrorism. Of course, this alone is not telling data: It may be that the other 95 percent of the cases were instances in which the FBI nipped a plot in the bud. But how can we know?
The brief answer is that right now, we can't. But again, the indications are mixed: two examples show why. In a case now underway in federal court in Brooklyn, a Pakistani immigrant faces criminal charges for conspiring to blow up the Herald Square subway station in downtown Manhattan. Seemingly an open-and-shut case, the matter is complicated by the fact that a police informant spent months persuading the defendant to agree to the plot, and the defendant himself seems of dubious intelligence. At the very least, one must question the net utility of prosecutions when the underlying terrorism conspiracy was seeded and cultivated by the government itself.
Other cases raise different troubling issues. The prosecutions of an alleged cell in Lackawanna, New York, quickly ended in plea agreements when it became apparent that the government would simply designate the defendants as "enemy combatants" for indefinite detention. When prosecutions have so terrible a sword over the heads of criminal defendants, can we be confident that pleas reflect accurately the substance of what a person indeed did wrong? Arguably not.
Perhaps most troubling of all is the disembodied voices of prisoners held in secret CIA prisons overseas, admitted to show Moussaoui's minor role. Does use of such evidence, perhaps gained after torture, constitute judicial sanction of these "black sites"? Indeed, what kind of legal system can tolerate the use of secret prisons, disappearances and torture? In December last year, Britain's highest court ruled the practice repugnant to the rule of law, a ruling long overdue in this country.
Zacarias Moussaoui will in all likelihood get what he wants. And the federal government will have its revenge. But will the nation be safer? Have the errors and failures of interagency co-ordination documented by the 9/11 Commission been rectified? Are the resources of the criminal law being effectively deployed, and how would we even know? And what has become of the rule of law? The Moussaoui trial is a dangerous distraction from these difficult and immediate questions.
Aziz Huq: "Distracted by Moussaoui" (PDF)