Cross-Examination March 2006

Justice Delayed

Why we still don’t have a way to put terrorists on trial

Whatever happened to Zacarias Moussaoui?

Moussaoui is the only person criminally charged in the United States for taking part in the September 11 conspiracy. He pleaded guilty to the charges against him last spring without a deal to spare him the death penalty. So he now faces a jury trial, with opening arguments scheduled for early March, to determine his sentence.

Given the magnitude of the crime and the fact that Moussaoui, a French citizen of Moroccan descent, admits his guilt, he seems unlikely to be spared—though at the time of the attack, he was locked up on federal immigration charges. If and when he is condemned to die, all sides in the debate over the war on terrorism will likely claim vindication. The Bush administration will embrace the verdict as a big win. Civil libertarians will argue that Moussaoui’s conviction in a domestic, civilian court shows that the regular justice system is up to handling big-time terrorism trials. The administration’s critics will use the case to discredit the military tribunals the Pentagon has created at the Guantánamo Bay Naval Base in Cuba.

Don’t believe a word of it.

Why not? What will the real message of the Moussaoui trial be?

Moussaoui’s case shows only that American courts can try an al-Qaeda figure if the government lucks out. Moussaoui is a nutcase who tried to represent himself, filed crazed pleadings, and made ludicrous courtroom speeches in which he repeatedly compromised any potential defense by admitting to key elements of the charges against him—for example, that he was a member of al-Qaeda, pledged to attack America. For months, he refused to cooperate with his court-appointed lawyers. And when the judge took away his ability to act as his own counsel, he pleaded guilty—thereby relieving the government of the burden of proving a tricky case.

Despite the lucky breaks, if the government ultimately succeeds in getting the death penalty, it will have taken an extraordinary effort: five years of litigation up and down the appellate ladder, millions of dollars, and a docket so long that a mere computer listing of the public documents filed in the case takes up over 160 pages. The case exposed daunting problems in trials like these: how to handle massive volumes of classified information and, more particularly, potential witnesses whom the government is holding and interrogating overseas and refuses to produce for security reasons. A defendant more inclined to demand his rights and less inclined to turn the courtroom into a circus could have made these proceedings more difficult than Moussaoui did.

Trials in federal courts are the only option for U.S. citizens. For foreigners, however, particularly overseas, the government has more options. After Moussaoui, don’t expect high-value al-Qaeda detainees to be tried in American courts if the government can avoid it. One such case, of an al-Qaeda suspect named Ali Saleh Kahlah al-Marri, has already been dropped, with the defendant turned over to the military as an enemy combatant. Even while it claims victory, the government will test these waters again only if it has no choice.

The case’s larger lesson is that the administration was right after September 11 when it argued that it needs some alternative form of trial.

So you favor the military tribunals the Bush administration has set up at Gitmo?

Not at all. They’re a disaster too.

In five years, not a single person—not even a low-level al-Qaeda or Taliban criminal—has gone to trial. Only nine have even been charged. The whole process has been mired in a combination of bureaucratic bumbling and litigation.

Whose fault is this?

Largely, but not entirely, the administration’s. Part of the blame has to go to the Supreme Court as well. In 2004, the Court asserted jurisdiction over Guantánamo, opening the door to litigation that has further delayed the trials. This isn’t an entirely bad thing, since the pressure of litigation has made the tribunals (called “commissions”) fairer. But if your chief concern is establishing a regular system by which al-Qaeda operatives can face trial, the delay has not been helpful.

To this day, it remains unclear what legal standards the courts will impose, or whether they can even consider the matter. The Supreme Court this fall agreed to do so, but Congress has moved to strip the courts of jurisdiction over such cases, and it isn’t clear whether the Supreme Court will have to stand down. So it’s still not certain when any trials will actually happen, or even whether the current rules are lawful.

What is the administration doing with such people now?

Cold storage. There are hundreds at Guantánamo and an unspecified number at secret CIA facilities. This latter group includes the most important al-Qaeda people: September 11 masterminds Ramzi bin al Shibh and Khalid Sheikh Muhammad, for example. They have effectively been “disappeared.” This solves a short-term problem: it makes them available for interrogation. But it also creates huge problems for America’s public image and creates friction with allies as well. In the long term, it’s not a viable strategy.

Presented by

Benjamin Wittes is an editorial writer at The Washington Post.

How to Cook Spaghetti Squash (and Why)

Cooking for yourself is one of the surest ways to eat well. Bestselling author Mark Bittman teaches James Hamblin the recipe that everyone is Googling.

Join the Discussion

After you comment, click Post. If you’re not already logged in you will be asked to log in or register.

blog comments powered by Disqus


How to Cook Spaghetti Squash (and Why)

Cooking for yourself is one of the surest ways to eat well.


Before Tinder, a Tree

Looking for your soulmate? Write a letter to the "Bridegroom's Oak" in Germany.


The Health Benefits of Going Outside

People spend too much time indoors. One solution: ecotherapy.


Where High Tech Meets the 1950s

Why did Green Bank, West Virginia, ban wireless signals? For science.


Yes, Quidditch Is Real

How J.K. Rowling's magical sport spread from Hogwarts to college campuses


Would You Live in a Treehouse?

A treehouse can be an ideal office space, vacation rental, and way of reconnecting with your youth.

More in Global

More back issues, Sept 1995 to present.

Just In