Getting Past No

Getting Past No, by William Ury, is one of the great primers on negotiating. In addition to refocusing parties on their interests rather than taking positions, Ury shows how we get so hung up in rejecting anything coming from the other side, we often ignore deals that could be good for everyone. A plea deal in the Zacarias Moussaoui case would be good for everyone. Based on what’s in the indictment, the government can’t prove he was meant to be the 20th hijacker on Sept. 11; they can only prove he was somehow involved in al-Qaida. Moussaoui admits to being involved in al-Qaida but denies having planned Sept. 11. Moussaoui wants to give information to save his life, and the government wants information more than they want him dead. Everyone agrees on virtually everything. So what are we fighting about? Stupid procedural legal crap.

I’m guessing that either Judge Leonie Brinkema read Getting Past No over the weekend, or someone slipped a Xanax into her Cap’n Crunch. (Moussaoui may have gone the Xanax route as well because he, too, is better-behaved today.) Indeed, Moussaoui and Brinkema seem to have reached an unspoken arrangement wherein she’s become, for all intents and purposes, his lawyer. They don’t cut each other off, they grant small courtesies, and, as the death penalty looms larger, each of them seems focused on trying to comprehend the other.

For some reason security is quadrupled for this afternoon’s hearing, meaning that guards carry huge weapons and barriers are erected where there were none last week. Brinkema’s first effort to get past no is rebuffed by Moussaoui when she asks whether he had a chance to read the letter she sent him on July 23, explaining the implications of his guilty plea. Moussaoui indicates the letter did not change his mind.

Brinkema then queries whether Moussaoui’s brief meeting this morning with a professor from NYU law school helped change his mind. Again, no. She then asks the professor whether, based on his meeting, he thinks Moussaoui is mentally competent. The professor, at the lectern under protest, says, “I have no representations to make.” The judge asks him again, and he again declines to offer any testimony. Packed tighter between her rock and hard place, Brinkema finds Moussaoui mentally competent to proceed with his guilty plea. She finds it noteworthy that he’s stopped filing “numerous repetitive motions” since she warned him not to last week.

Then Brinkema calls Moussaoui to the stand and asks whether he still wishes to plead guilty. Moussaoui explains, as he did last week, that he is pleading guilty for two reasons: 1) He accepts the truth of some, but not all, of the allegations contained in the indictment; 2) he believes that in bypassing the guilt phase and going directly to the death penalty phase, he will pre-empt the government from “inflaming” the jury with details of Sept. 11. Moussaoui is wrong on both counts. He says, “The government will talk about Bin Laden, Bin Laden … and Moussaoui will be taken as the prize.” He says he is determined to tell his story to “12 people of America,” never understanding that what the government has to tell a jury will inflame them more at a sentencing phase than it would during the guilt phase.

Moussaoui pleads guilty to Counts 1-4 in the indictment: conspiracy to commit acts of terrorism, aircraft piracy, and aircraft destruction, and of using weapons of mass destruction. Brinkema attempts to walk him through a plea colloquy so that she can determine, under the rules, whether “the plea is being made in a voluntary fashion.”

Brinkema asks whether he understands that if he pleads guilty, he cannot go back and claim to have been innocent of the claims in the indictment, although he can claim there were mitigating circumstances. Moussaoui says he understands. He repeats that he is pleading guilty “because I want to confront 12 American people.”

Brinkema, who has done her level best to explain to Moussaoui why his logic is flawed, tries one more time. She explains that once he’s in front of the jury, having pleaded guilty, “you will not be able to come in and say you were not in the conspiracy.” Moussaoui replies, as he so often does, “That is your interpretation.”

Brinkema replies, “No. That is how I will run the trial.”

Somewhere, a light bulb goes on. Or more correctly, the dimmer switch is turned. Moussaoui says, “You will tell me what part of the indictment even alleged that I knew about the conspiracy.” He adds that he is guilty of some of these allegations; he “provided a guest house”; he “provided training.” In direct contradiction of his earlier guilty plea, he adds, “I can plead guilty, but that doesn’t put me on the plane!”

The judge, recognizing that they may finally be in agreement, explains that the “essence of the conspiracy” requires that Moussaoui willfully conspired with al-Qaida members to kill and maim people, resulting in thousands of deaths on Sept. 11. It has nothing to do with guest houses. Moussaoui tries to say she doesn’t understand the law, that he can plead guilty to the conspiracy because he provided a guest house, even if he knew nothing about Sept. 11.

Brinkema: “It doesn’t work that way. If you are saying you ran guest houses and knew members of al-Qaida, then you’re not agreeing to this particular conspiracy. … If you came to the U.S. to learn to fly crop dusters … you’re not a member of this conspiracy.” When Mousaoui keeps arguing, she moves on to the second count in the indictment. Moussaoui suddenly asks for a recess. And Brinkema, who never grants his spontaneous goofy requests, gives it to him. When he comes back 15 minutes later, Moussaoui has changed his plea. He quotes Hamlet (“to be or not to be”) and insists that the judge “wants to tie me to certain facts that will guarantee my death,” although she has made a heroic effort today to untie him from precisely those facts. Claiming that Islam prohibits him from doing that which would lead to his own death, he changes his plea to “not guilty.” Evidently a polite “Thank you for saving my life, Your Honor” is not in the list of courtroom miracles today.

The judge observes with the understatement of the ages that this is “not an unwise decision” and warns the government that they may not tell a jury that he attempted to plead guilty. And agreeing to use his standby counsel again (if only to “expose them”), Moussaoui tries to berate her for denying him access to Charles Freeman, the Houston attorney who has consistently refused to come forward and assist Moussaoui at trial. And getting past no again, Brinkema explains, three times and with admirable patience, that this was Freeman’s choice, not hers.

I’ve argued before that there is simply nothing in the government indictment tying Moussaoui to the events of Sept. 11. At best, they offered some brief footage of Moussaoui buying knives that could be spliced into the 9/11 movie. But the government gave us little reason to believe that he was No. 20, and Moussaoui’s position throughout this trial was in accord with that. Today Judge Brinkema helped bridge the gap between the government’s story and Moussaoui’s. I was wrong about the inability of the American justice system to try a terrorist: Maybe in the end, the truth really does come to light.