February 15, 2003

WAR AIN'T BEANBAG:

Sanity and Justice Slipping Away: Ashcroft rolls over legal rights to pursue a demented terror suspect. (Jonathan Turley, February 10, 2003, LA Times)

Accused terrorist Zacarias Moussaoui has spent the last two years like a freak on a leash -- raving his hate-filled fantasies as Atty. Gen. John Ashcroft pulls him from jurisdiction to jurisdiction in search of a speedy execution.

Now Ashcroft is upset that a federal court ruled against the government in a critical motion, and he may yank Moussaoui out of his civilian trial and send him to a military tribunal where the attorney general's notion of justice will not be impeded by legal process.

When he was first charged, Moussaoui was presented as the 20th hijacker -- the sole survivor of the 9/11 conspiracy who would pay for that crime with his life. To better guarantee execution, Ashcroft had Moussaoui sent from Minnesota to Virginia, where the notorious "rocket docket" makes fast work of criminal defendants.

From the beginning, however, there was doubt that Moussaoui was ever a part of the conspiracy, and there is growing agreement that he is a barking lunatic. Now the Justice Department is facing the prospect of losing all or part of its high-profile case to a hate-spewing, rug-chewing maniac. Worse still, the government's growing disaster is of its own making.

Lacking any meaningful evidence linking Moussaoui to the 9/11 plot, the government wrote an indictment that reads like a bad dime-store novel, describing shadowy figures and loosely imputing their actions to Moussaoui. A central character in this criminal novelette is alleged 9/11 mastermind Ramzi bin al-Shibh, who figures so prominently in the indictment that the government named him an unindicted co-conspirator.

That made Bin al-Shibh a material witness in the case, but the Justice Department was not concerned about his being called to confirm these facts because Bin al-Shibh was at large and believed to be possibly dead. That changed last September when a very much alive Bin al-Shibh was arrested in Pakistan.

Under interrogation, Bin al-Shibh has reportedly given the CIA some valuable information, but also one highly unwelcome tidbit: Al Qaeda thinks Moussaoui is as crazy as we do.

Bin al-Shibh reportedly stated that he did send money to Moussaoui as a type of terrorist retainer. However, he also stated that no one trusted the unhinged Moussaoui for such an important mission and that Moussaoui was never made part of the 9/11 conspiracy.

Such evidence might prove Moussaoui was part of a terrorist group and even secure a lengthy sentence. But Ashcroft doesn't want to convict some terrorist wannabe with the dubious distinction of flunking out of suicide bomber school. He wants to execute the 20th hijacker and give Americans a sense of retribution for 9/11.


Among the many rotten bequests of the OJ trial, the Clinton impeachment and Florida 2000 is the plague of lawyer/analysts in the media. These folk have no more annoying trait than their frequent insistence on analyzing everything through the lens of legalism rather than of common sense. Mr. Turley's is only the most recent in a long string of essays about Zaccarias Moussaoui in which lawyers hold the government to the standard that would be required to attain a guilty verdict in a court of law. This apparently entitles them to ignore the obvious and inctrovertible evidence that Moussaoui was to be the 20th hijacker.

Though not, to the best of my knowledge, a lawyer, Here's how Seymour Hersh described the case against Moussaoui, THE TWENTIETH MAN: Has the Justice Department mishandled the case against Zacarias Moussaoui? ( SEYMOUR M. HERSH, 2002-09-23, The New Yorker)

In February, 2001, Moussaoui showed up at the Airman Flight School, in Norman, Oklahoma. He was now thirty-two, and had continued to travel in pursuit of fundamentalist causes. He had been in Afghanistan (where he is alleged to have spent time in an Al Qaeda training camp), in Pakistan, and in Malaysia, while maintaining a base of sorts at a radical mosque in North London. When he arrived in America, two weeks after returning to London from a trip to Pakistan, he told customs he had thirty-five thousand dollars in cash. His sudden interest in flying had led him to pay five thousand dollars, in advance, for a series of lessons that should have allowed him to earn a pilot's license. Over the next three months, Moussaoui took fifty-seven hours of flight instruction, far more than the twenty hours most students need before flying solo. But he left the school in late May without a license. [?]

The evidence that the government has presented thus far is largely circumstantial. The search of Moussaoui's computer-a warrant was granted on the afternoon of September 11th-apparently yielded nothing that would have foretold the attack or tied him to it. The indictment depicts Moussaoui as having followed a pattern of activity similar to that of many of the hijackers. Like them, he spent months in flight training, he bought flight-deck videos for commercial airplanes from a pilots' store in Ohio, and he joined a gym. Two of the hijackers are also said to have visited the flight school in Oklahoma the year before Moussaoui did. In the fall of 2000, Moussaoui had been given a letter stating that he was being retained as a "marketing consultant" by Infocus Tech, a Malaysian company; the company's managing director was later linked in press reports to some of the hijackers.

The most specific evidence in the indictment linking Moussaoui to the September 11th conspirators is that, in August, 2001, someone using the name of Ahad Sabet wired fourteen thousand dollars to him from train stations in Hamburg and Dsseldorf. Ahad Sabet is the alias of Ramzi bin al-Shibh, a known Al Qaeda intermediary, who also funnelled money to at least one of the hijackers and was named as a co-conspirator in the Moussaoui indictment. He had sought four times before September 11th to get a visa to the United States, and, in a broadcast on Al-Jazeera on the day after the anniversary of the attacks, he claimed that he was meant to be the twentieth hijacker. The indictment also notes that Moussaoui and al-Shibh were in London at the same time, in December, 2000, just before Moussaoui flew to Pakistan. The government's theory is that al-Shibh's visa problems forced the conspirators to turn to Moussaoui. Through careful detective work, German police were able to recover al-Shibh's fingerprint on a Western Union receipt for a payment sent to Moussaoui in Ahad Sabet's name, helping to establish that the men were one and the same. [?]

If the government's case is built on the similarities between Moussaoui's activities and those of the known hijackers, it must account for the fact that, though he shared their allegiance to Al Qaeda and its leader, Osama bin Laden, his behavior in America was strikingly different from theirs. The government has found evidence of e-mails and meetings among the nineteen, but none between any of them and Moussaoui. The hijackers tried to fit in to American life-drinking in bars, for instance. Moussaoui, while in Oklahoma, remained largely aloof, although he was voluble about his Islamic beliefs. He criticized members of a mosque in Norman for not lowering their gaze when meeting women and for looking at lightly clad cheerleaders. "He went around making a nuisance of himself everywhere he went," Frank W. Dunham, Jr., the federal public defender in charge of Moussaoui's defense team, said. "He was not flying under the radar by any means." Another Moussaoui attorney depicted him as "wearing his fundamentalism on his sleeve," and said, "He was incredibly argumentative-always."


Soet us reiterate some advice we offered to Mr. Hersh (and had previously offered to law professor Michael Mello): perhaps Mr. Turley could use Occam's Razor as he does his next column. Here is what one has to believe to accept the premise of his story, that Zacarias Moussaoui was not involved in 9-11:
(1) That this mope just suddenly showed up in America on his own--at an opportune moment for the purposes of the hijacking plot--with boatloads of cash after a trip to Pakistan.

(2) That he spontaneously decided it would be neat to figure out how to fly (but not land) jumbo jets (like those that were hijacked), though he wasn't seeking a license. That he bought videos and manuals about such jets from the same store as the other hijackers on a whim.

(3) That it is sheer coincidence that he was wired money by the man who was originally to be the 20th hijacker, until he ran into visa problems.

(4) That there was no 20th hijacker, that one group of terrorists (note it is the one that failed) was to be configured completely differently than the other three, or that there's a twentieth guy who would have done all these same things but who we haven't noticed yet.


Here, on the other hand, is the most difficult thing you have to accept if you are to believe John Ashcroft's version of the story:
(1) That the terrorists were in such desperate need of a twentieth guy once al-Shibh couldn't get into the country that they grabbed Moussoaui, even though they knew he was a screw-up, and then kept him quarantined from the other 19 so that if he did foul up he couldn't betray his comrades.

We'll leave it to you to decide which places a greater strain on credulity.

Obviously this is all circumstantial evidence and, as a lawyer, Mr. Turley would be perfectly justified in criticizing the strength of the case that the government has developed, if it is seeking a legal conviction. However, the tone with which Mr. Turley attacks John Ashcroft and the government for treating Moussaoui like the 20th hijacker is completely inappropriate given that no reasonable person copuld come to any other conclusion but that he was in fact a part--even if an unstable and, therefore, carefully segregated part--of the attack. And the idea that a government, the primary purpose of which is to safeguard the national security, would treat this case only legally, rather than rationally, is ultimately unserious, reflecting a failure to come to grips with the fact that we are at war with terror, rather than in the midst of an episode of Perry Mason. Regardless of whether the Justice Department can ever "prove" that Zaccarias Moussaoui would have been the 5th man on Flight 93, he must be incarcerated until the day he dies.

Posted by Orrin Judd at February 15, 2003 6:30 AM
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