Is it just me, or does the whole Zacarias Moussaoui prosecution seem to be pretty iffy? Let’s ignore the whole witness tampering incident, and just focus on the prosecution itself. More disturbingly, the entire prosecution case seems to rest on Mr. Moussaoui’s refusal to waive his fifth amendment rights.

Apparently Mr. Moussaoui pleaded guilty on terrorism conspiracy charges related to 9/11, although there is still some dispute about his role. Prosecutors claim that Mr. Moussaoui had first-hand knowledge of the 9/11 attacks, and was supposed to take part in them, if he had not been captured by the FBI earlier. Mr. Moussaoui claims that he was actually in charge of a planned follow-up attack on the White House, and had only cursory knowledge of the 9/11 attacks before they happened. In any case, the federal prosecution team is determined to push for the death penalty (the alternative would be life in prison). Certainly this is the politically savvy move, although I will confess that I am still adamantly opposed to the death penalty, even in this case. (I believe that no one is beyond redemption, and therefore it is our Christian duty to give every person every chance to redeem themselves.) But, it isn’t the potential use of the death penalty that really bothers me in this case either.

What bothers me is how the prosecution is going about its case. The prosecution is trying to argue, for legal reasons that escape me, that because Mr. Moussaoui was in federal custody before the 9/11 attacks, that if he had confessed then and cooperated with the federal government, that he could have prevented the 9/11 attacks. I guess this allows them to make him a conspirator in those attacks, rather than simply a confessed terrorist, although I could be wrong. Like I said, the legal reasoning escapes me. Part of my problem with the prosecution is that it relies on counterfactuals and alternate histories. We should always be skeptical of those things, because fundamentally they rely on “facts” that never actually happened. Anyone can say that “oh, if I had only known X, I would have acted differently”. But hindsight, as they say, is always 20/20. In reality, we cannot really know what the FBI or the FAA would have done with Moussaoui’s cooperation. And it seems pretty flimsy to say that Mr. Moussaoui deserves to die because if he had confessed, and if the FBI had passed that information along quickly, and if the FAA would have responded quickly and appropriately, and if nothing else had gone wrong, then maybe they could have prevented the 9/11 attacks.

More importantly, however, is that the entire prosecutorial case seems to undercut the fifth amendment. To quote:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

I italicized the relevant part of that amendment. The right to not self-incriminate is incredibly important; it is what gives us the “right to remain silent”, as the Miranda warning tells us. And it is what prevents government from fining or imprisoning people indefinitely until they confess.

The prosecution in the Moussaoui case, however, is trying to penalize him for not confessing. Remember that for him to have cooperated fully with the FBI before the 9/11 attacks would have required him to confess to a wide variety of crimes. And while confession may be good for the soul, the fifth amendment says that we should not be held legally liable if we refuse. Which is exactly what the prosecution is doing; they are trying to increase Mr. Moussaoui’s legal liability because he refused to confess his crimes and fully cooperate with the FBI. And I can’t see how that is not a violation of the Fifth Amendment.

So, for those who know more about the law than I do, why is the judge even allowing this prosecutorial strategy to go forward?

This entry was posted on Thursday, March 23rd, 2006 at 3:56 pm and is filed under Bill of Rights, Disasters and Tragedies, Judicial System, Terrorism. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.