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'Slave of Allah' Wounds Justice

April 23, 2002|JONATHAN TURLEY | Jonathan Turley teaches constitutional law at George Washington University Law School and has served as counsel in national security and espionage cases.

When Zacarias Moussaoui was transferred to Virginia for trial as the so-called 20th hijacker, Atty. Gen. John Ashcroft could have reasonably assumed that the "rocket docket" would make quick work of the accused terrorist. The problem is that Moussaoui is not cooperating and, in a bizarre hearing Monday, he threw his trial into disarray. Ironically, for the first time, the court, the prosecutors and the defense attorneys appear to be in agreement: They are looking at a disaster in the making.

The turmoil began when Moussaoui appeared with his counsel and raised his hand. When Judge Leonie Brinkema acknowledged him, Moussaoui let loose with a tirade against the United States, Israel, the court, the prosecution and, most important, his own attorneys. Moussaoui accused his attorneys of pursuing "greed, fame and vanity" in the case. He insisted that they were actively assisting the government in his execution.

Moussaoui then lashed at the judge as "a field general" leading what he described as a "sophisticated version of the kiss of death."

So as to guarantee not to leave any potential juror free of attack, Moussaoui announced that he was a "slave of Allah" who prayed continually for "the destruction of the United States of America" and "for the destruction of the Jewish people and state." He then got down to more mundane matters and asked for either the appointment of a Muslim lawyer or the right to represent himself. Moussaoui noted that he has $30,000 to pay for a Muslim attorney.

As a threshold matter, Moussaoui does not have $30,000. The government has custody of that money and insists that it was a subsidy from the Al Qaeda organization to participate in the Sept. 11 attacks. Moreover, even if he could get the government to release the money, $30,000 would not last beyond pretrial motions.

For Moussaoui to secure a court-funded Muslim lawyer, the judge would have to accommodate his discriminatory tastes for counsel. However, the Constitution should not be a credit card for the discriminating fanatic. There is no reason why the court should yield to such a demand any more than it would tolerate a white supremacist's demand for a white lawyer.

That leaves self-representation. Of course, after his inaugural performance in the hearing, no one wants Moussaoui to turn the proceedings into the circus of the unhinged. However, to deny his request for self-representation, the court would have to find Moussaoui unfit to represent himself. Such a finding could jeopardize the outcome of the case for the government. If Moussaoui is unfit to represent himself, it would raise questions of whether he is legally competent to stand trial or to receive the death penalty.

If Moussaoui is found to have "knowingly and intelligently" waived his right to counsel, the Supreme Court has held that he must be given the opportunity to represent himself. This would mean that the self-proclaimed "slave of Allah" would have the opportunity to make opening arguments, to examine and cross-examine witnesses and to make objections. Because the same rules of evidence apply, it is unlikely that he would succeed in the most minimum efforts of self-representation. However, a self-represented defendant cannot later claim "ineffective counsel," and he could be executed without putting on any real defense.

The court will likely retain Moussaoui's current defense counsel as "friends of the court" to sit next to Moussaoui throughout the trial in case he changes his mind. Things are likely to then go from bad to worse. Although a defendant can be excluded from the courtroom if he refuses to comply with the court's orders, it is more dicey when the defendant is also the defense lawyer. Moussaoui may inevitably be forced to watch portions of the trial by remote television, leaving only the government in the courtroom. Moussaoui could then be sentenced to die on the basis of a trial almost entirely composed of government witnesses and argument. This worst-case scenario is not just possible but likely.

What is disturbing is that there appears to be considerable room to challenge the charges against Moussaoui. The evidence introduced against him is highly circumstantial and some of the legal charges are questionable. These defenses will likely be lost in the ravings of a zealot. That will neither serve the ends of justice nor Moussaoui.

Of course, the Constitution does not protect a defendant from self-inflicted wounds. If the government is correct about his alleged training as a suicide bomber, Moussaoui may have finally found an avenue for his unique self-destructive form of expression.

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