Tuesday, March 14, 2006

Moussaoui and Kafka

The Kafkaesque case of  Zacarias Moussaoui has taken a further turn into absurdity with apparent intentional efforts by the prosecution to scupper their own case.  The judge gave express – and very easy to follow – instructions to the federal lawyers to avoid tampering with their own witnesses, specifically ordering them to avoid exposing the witnesses to trial testimony.  In spite of that, one of the federal lawyers - note: actually an attorney for the Transportation Security Administration, and not on the prosecution team itself, but presumably allowed by the prosecution to interact with its witnesses - sent a joint email to the prosecution’s FAA witnesses, coaching them on how to deal with defense cross-examination based on the transcript of the proceedings of the first day of the trial.  The lawyers can’t possibly be that dumb, so this must be an intentional attempt to end their own trial.  U.S. District Judge Leonie Brinkema said she had "never seen such an egregious violation of a rule on witnesses .”  She is now considering whether to throw out the prosecution’s request for the death penalty, leaving Moussaoui with life imprisonment.

It is fairly clear that the prosecution fears that Moussaoui’s answer to the federal case, which turns on his failure to warn officials about the upcoming 9–11 attack, will be to raise a number of disturbing questions that have never before been properly considered.  Why did the FBI not seek a FISA warrant to examine Moussaoui’s computer, despite the fact that local officials had requested it, and FISA warrants were, at the time, always given?  Why was the Department of Justice response based on the fact that they would not be able to obtain such a warrant, when they had to know that was a lie?  This issue takes on added significance when you consider the attitude of the Bush Administration to illegal surveillance without even trying to obtain FISA warrants.  What the hell was the FAA up to on the morning of September 11?  Why did an FAA official make a systematic effort to destroy evidence later that morning?  Why would a cold call from an unknown nut like Moussaoui result in the prevention of the attack, when express warnings from practically every major government in the world about an imminent upcoming attack were completely ignored?

Moussaoui ended up pleading guilty to the original charges because he never would have had a fair trial had he persisted in claiming he was not guilty.  The government was going to declare him an ‘enemy combatant’, and either never try him (holding him in permanent legal limbo), or summarily execute him after some secret military hearing.  Once he gets as far as the sentencing trial, the government uses evidence that Moussaoui could have used in his defense at the main trial – evidence that Moussaoui’s only possible fault was not giving warnings that you can be certain would have been ignored, all with the odd taint of requiring him to incriminate himself, and with the overriding idea that he could be executed for the crime of keeping his mouth shut - in order to claim he should be put to death.  The final move, worthy of The Trial, is for the government to tank its own case in order that the defense of Moussaoui not raise issues issues of guilt that point, not at the defendant, but at the Bush Administration which is instructing the prosecution attorneys.