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It's Just Not Worth It

Attorney Andrew Cohen analyzes legal issues for CBS News and

Zacarias Moussaoui's angry outbursts Monday at the start of jury selection for his death sentence trial highlights why the proceedings will be far more trouble than they are worth. By stubbornly pursuing the death penalty for a guy who was sitting in a Minnesota prison on Sept. 11, 2001, and who says with some measure of credibility that he was involved only in a future terror plot (which never came about), the government is inviting the very chaos and heavy-handedness it sought to avoid when it first indicted the confessed terrorist and then proclaimed to the world that his case could be well handled by our criminal justice system.

The feds have long wanted to make an example of Moussaoui — to show the world that American justice can be tough but fair even for our nation's sworn enemies, which Moussaoui has declared over and over again that he is. But so long as Moussaoui does not play along with that propaganda script — and nothing can force him to do so — the trial instead has the potential to turn into the domestic version of Saddam Hussein's trial in Baghdad. We take for granted in this country that even heinous murderers will sit politely in court while they are tried — and almost all do. That assumption simply doesn't work for a guy whose cracked worldview entices him to use the trial for his own warped political purposes.

Moussaoui's antics Monday — he was ejected four times from a federal courtroom as his potential jurors in Alexandria, Va. began to fill out their questionnaires — would be a fair price of doing business if he were intimately involved in conduct that resulted in someone's death — let alone the catastrophic crimes of 9/11. Capital defendants obviously shouldn't (and don't) get kid-glove treatment simply because they are acting up in court. And our justice system is quite capable of dispensing justice for those defendants, capital or otherwise, who aren't willing or able to respect their trial judge and the law. Just ask Charles Manson.

But the government's allegations against Moussaoui are, relatively speaking, glancing blows. He is not accused of being a direct part of the 9/11 plot. And he long ago was cleared of the label "20th hijacker," a sobriquet that the former U.S. Attorney General, John Ashcroft, and others threw around with reckless glee shortly after the terror attacks on America. Instead, Moussaoui, is accused of withholding information about the 9/11 plot which, had it been disclosed, the government says, might have enabled the government to foil the plot. In other words, he is accused of failing to prevent the attack — an accusation that loosely might apply to plenty of government officials who similarly failed to prevent the attacks. And for that the government wants to see him executed.

Why Moussaoui? Because he has lost the game of musical chairs. The 19 hijackers themselves obviously died on Sept. 11, 2001. Other people directly involved in the plot either are not yet captured (Osama bin Laden) or were long ago captured but cannot for national security purposes be tried in public (Khalid Sheik Mohammed, Ramzi Binalshibh). So Moussaoui ends up being the fall guy; the symbol for a crime even the government says he did not commit. And he almost certainly will get sentenced to death despite the best efforts of his trial judge, U.S. District Judge Leonie M. Brinkema, to ensure that he gets the fairest proceeding he can in the shadow of the Pentagon. But even Judge Brinkema, whose work in this case has been noble, has to control her courtroom. And every time she has to eject Moussaoui, or to silence him, she gives ammunition to our enemies, here and abroad, who say that the Moussaoui trial will be to America what the Saddam trial so far has been to Iraq.

I understand that the government wants to prosecute someone — anyone — for the worst crime in American history. I understand that there is a need for some sort of collective therapy that a trial of Moussaoui might generate for some of the victims of 9/11. I'm just not convinced that the cost-benefit analysis weighs in favor of going through with this very public trial. Not only will it either give Moussaoui a soapbox on which to offer his creepy political views (or require the judge to gag him, which also doesn't look good), it will embarrass the government terribly when Moussaoui's attorneys tell jurors that intelligence officials knew way more about the 9/11 plot than their client, a clumsy foot soldier in al Qaeda's war. Meanwhile, a death sentence that results from this sentencing trial necessarily will be constitutionally dubious for reasons Judge Brinkema already has pointed out.

Over four years ago, just after the terror attacks, the government decided that it would publicly try Moussaoui even though he is not a U.S. citizen and thus could have been transferred into military custody either as an "enemy combatant" or as a candidate for one of the military tribunals that President Bush established. The government made this choice about Moussaoui at a time when it was precluding U.S. citizens like José Padilla and Yaser Hamdi, who have more constitutional rights than Moussaoui, from having their day in court. This trial will not rectify that mistake, that grave injustice. It will only inflame it.

The idea for a 9/11 trial is a good one. And perhaps one day Osama himself will have to stand trial for his crimes. But as foul and as nasty as Moussaoui is — he reportedly cheered in prison when he heard the Twin Towers had fallen — he is simply the wrong guy to act as the foil for the tragedy of that day. He is simply not worthy of the designation. He was a terrible terrorist — reportedly not getting along with his terror buddies and then of course acting so blatantly odd about flying planes that he drew the suspicion even of our hapless intelligence officials. And so bootstrapping him into the 9/11 plot and then making him out to be the face of terror is beneath us. In fact, it makes us look weak — like we're settling for a buck private because we can't get to the general.

It's still not too late. Jury selection still is in its infancy. The feds would be far better off shutting down the case now, pushing for a life sentence without early release for Moussauoi (which is the only other option), shuttling the zany terror wanna-be off to the Supermax prison in the wilds of Colorado, implementing Special Administrative Measures over his correspondence to ensure that he does not have a voice to the outside world, and moving on to more appropriate opportunities to show the world how the American justice system works. This man simply does not deserve this moment.

By Andrew Cohen

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