Death Charge

Zacarias Moussaoui hurtles closer to his execution.

Download the MP3 audio version of this story here, or sign up for Slate’s free daily podcast on iTunes.

Well, of course it’s a “circus.” While it’s true that nobody describes any major trial anymore without at some point using that word, what’s strange about Zacarias Moussaoui’s courtroom outburst this week—as he was removed one of four times—is that the “circus” comment came from the guy who’s supposed to be crazy. It was not, in that sense, unlike the lion stopping just short of the flaming hoop and muttering, “This is nuts.”

When the crazy folks are the only ones speaking the truth, you’re either in a Shakespeare tragedy or Wonderland.

Thus Moussaoui, once touted as the “20th hijacker,” starts the penalty phase of his trial, having already pleaded guilty to six felony counts of conspiracy in connection with the 9/11 attacks. He pleaded guilty, you’ll recall, over the objections of his lawyers, and even as he admitted to lying to government investigators, he denied involvement in the attacks on the Twin Towers. In the coming months, a jury will determine whether he’ll die or rot in prison. And as he has done each time he is granted an opportunity to step up to the courtroom’s mic—and often, when he has not—Moussaoui used Monday’s jury selection to repeat the talking points he’s refined throughout this trial: He rejects his lawyers; he admits to being al-Qaida; he “won’t be heard by this court”; and “this trial is a circus.”

As is usually the case, if you unbraid the message from its wacky messenger, Moussaoui’s claims ring true. He has never denied that he is a member of al-Qaida; he hates America; he was involved in some never-executed secondary plot to kill Americans. Weirdly enough, if you go back and read the government’s original indictment in this case, those were precisely the facts they alleged, too. Yet, the Bush administration first claimed in public statements by Dick Cheney that Moussaoui was probably the 20th hijacker, then claimed he was intimately tied to the 9/11 plot, and now claims that he merely failed to disclose the 9/11 plot to the FBI. Why is it that Moussaoui’s story hasn’t changed much in four years, while the government has downgraded him from hijacker to secret-keeper? It leads one inexorably to Moussaoui’s last talking point: that this is a show trial.

In part this is a show trial because we haven’t quite figured out how to try vague, potential terrorists for vague, future plots. But largely it’s a show trial because the administration has learned nothing from its dealings with the other captured terrorists—about the need for clarity, humility, and small but certain gains in court.

Did the government learn nothing about overbilling a prisoner’s capture from the embarrassment over Yaser Esam Hamdi’s detention? An American citizen, nabbed in Afghanistan, Hamdi was reportedly so dangerous that he warranted locking up for almost three years without charges or due process. When the Supreme Court asked only that Hamdi see the inside of a courtroom, the administration sent this lethal enemy combatant home to Saudi Arabia without dessert.

Did the government learn nothing about distorting the evidence from the embarrassment over Jose Padilla’s detention? When John Ashcroft boasted, in 2002, that “we have captured a known terrorist who was exploring a plan to build and explode a radiological dispersion device, or ‘dirty bomb,’ in the United States,” did he consider whether he could prove it? When the DOJ downgraded that boast to crow, in 2004, that Padilla had plotted to blow up apartment buildings, that claim should have been provable. But today Padilla is in criminal court in Miami, facing fuzzy charges of conspiracy and of providing material support to terrorists. Was the administration overstating its case back then, or is it letting a criminal mastermind skate now?

Did the government learn nothing about overzealous prosecution from the debris of the Detroit “sleeper cell” trial, where two members of an alleged terror cell were convicted, until it became known that the state’s prosecutorial misconduct was so rampant that the judge was forced to throw out the convictions? In trying, once again, to super-size their terror convictions, prosecutors evidently pressed an overheated theory long after they knew it was wrong.

But—and here is where we move from hubris to cruelty—the government keeps promising the 9/11 victims “closure” and “justice,” and maybe it really believes that any old terrorist will do to that end. Why are the victims promised that this is their trial, where they will testify and bear witness on closed-circuit televisions—when at bottom what it seeks to prove is a speculative double-negative: that if Moussaoui had advised the FBI of something, something else might not have occurred. The defense has already begun to press its ironic response to that claim: The government clearly knew far more about 9/11 than Moussaoui did, yet it still failed to stop it.

Consider that Moussaoui was in jail on 9/11 and that even the 9/11 Commission concluded that he was likely just a “potential substitute pilot”—not a central player. Consider that he really may not have known very much about the plans for that day. Experts believe that even some of the hijackers themselves knew few details of how 9/11 would go down. Consider that right now the person whose story makes the most sense in the Moussaoui trial—defendant notwithstanding—is his mother, Aicha el-Wafi, who told the French papers that her son ” … is an extremist. He should be judged for that—but not for the things he did not do. He did not take part in the September 11 attacks.” Consider that even some 9/11 victims have expressed doubt that Moussaoui should die just because he led a life that paralleled—but virtually never intersected with—the lives of the hijackers.

The Bush administration’s response—to these and other accusations of DOJ grandiosity—is that it is not overbilling or overcharging these myriad criminal masterminds; that it is merely alleging as little as it needs to prove in court without compromising national security. Padilla was a dirty bomber; Moussaoui was intimately connected to the 9/11 hijackings. They simply can’t prove it without divulging too many secrets. They urge that there is no way to try a terror suspect in open court, with all the protections afforded by due process, without somehow undermining national security.

If Moussaoui, Padilla, Hamdi, and the whole Detroit sleeper cell really are ranking senior members of al-Qaida, I’m for trying them by closed military commission. But if they are merely what they appear to be—low-level terror thugs willing to die for Osama Bin Laden—they should be tried as such. Instead of puffing up the evidence to support equally puffed-up charges, prosecutors could charge them with precisely the crimes they’ve committed: as low-level foot soldiers in the war on terror.

Consider the benefits of trying Moussaoui as a mere terrorist, rather than as a perpetrator of 9/11: For one thing, his trial would appear fair, not just to the defendant, who might actually recognize himself in the indictment, but to the world, who would see that, when the charges actually correspond to the crime, the American court system works quite well. Consider, also, the message it would send to other lowly foot soldiers in al-Qaida (who might also recognize themselves in the indictment). “We don’t just go after the ringleaders. We go after, and get, everyone, including the bumbling bottom feeders.” That might persuade some sleepers to stay asleep.

It’s tempting to argue that the Western justice system just doesn’t work when it comes to catching terrorists; that we should just, I suppose, round ‘em up and shoot ‘em instead. But let’s give open court the old college try first. Let’s go in and try to prove what we know to be true, instead of what we merely wish we could avenge.