In light of the $5 million given to a witness in the trial of Zacarias Moussaoui, this column may be of interest.

It is not something that you often see in the conservative federal courts of Virginia: a fanatic screaming a confession that a federal judge does not want to hear. Yet, in some ways, it was just another day in the trial of Zacarias Moussaoui.

Since his arrest, the “20th hijacker” suspect has turned his courtroom into the theater of the bizarre. On Thursday, Moussaoui held his most riveting performance yet by insisting that he wanted to plead guilty and confess to everything short of the Lincoln assassination. Moussaoui not only confessed to being the 20th hijacker on Sept. 11 but proclaimed his allegiance to Osama bin Laden. Even the most patient and committed legal system would be forgiven if it simply took Moussaoui at his word and quickly dispatched him to his maker. However, Moussaoui’s conduct should only reinforce the need to satisfy justice on our terms and not his. While U.S. District Judge Leonie Brinkema struggled to prevent him from making further incriminating statements that are fully admissible at trial, Moussaoui insisted that he was guilty and wanted to proceed to the penalty stage of his capital-punishment case.

Moussaoui’s “confession,” however, came only after Brinkema rejected motions that he insisted were necessary to prove his innocence. In the very same hearing, Moussaoui proclaimed his innocence (as he has since his arrest) and confessed in a peevish fit. He has refused to admit that he is clueless about how to defend himself and has repeatedly made petulant, childlike outbursts, saying “I don’t have to take advice from you regarding the way I defend myself.” He has fought to enter nonsense pleas and then screamed that Brinkema was preventing him “from entering the plea that I wanted.”

These hearings have shown beyond reasonable doubt that Moussaoui is an ignorant, offensive, sexist, deranged, anti-Semitic fanatic. Still, he may be innocent.

Crimes require not only evil intent (which Moussaoui easily possesses) but evil acts. The actual case against Moussaoui is extremely thin and circumstantial. He does not fit the pattern of any of the other hijackers and cannot be tied to any of the preparations for the attacks. He could very well be a simple terrorist wannabe who has found himself on a world stage where he can rant about casting non-Muslims “into the fire” and killing Jews.

We could very well be enabling the performance of a self-destructive paranoid; a deranged loser who could not even qualify as a suicide bomber. Of course, it would be easy to view this as a win-win proposition: Moussaoui wants to be a martyr and few of us would mourn his passing. However, the question is not Moussaoui’s expectations of justice but our own.

Moussaoui represents a difficult case for the limits of self-representation. An individual has a constitutional right to defend himself, and the Constitution does not protect someone from self-inflicted wounds. There was good reason for Brinkema to find that Moussaoui was legally competent to be his own lawyer. However, since that finding, Moussaoui has appeared increasingly unhinged and disturbed in his filings and statements. His legal motions are often little more than ravings, bearing titles such as “Zacarias Moussaoui Muslim v. U.S. Godless government” or “Motion to see what the scam is about.” He has demanded hearings on such subjects as “those Jews who incurred the curse of Allah and his wrath and those who He transformed into monkey and swines.” He has ranted about a fan left in his car and how “it must be forensically examine [sic] before they kill me.” Moussaoui’s obvious instability has become an embarrassment. However, prosecutors have studiously tried to ignore the fact that Moussaoui is a barking lunatic.

Some hearings have had the feel of a small family trying to ignore an uncle in the parlor who is chewing the rug. The problem for the government is that, if Moussaoui is found incompetent, it would undermine his competence to stand trial or, in the very least, his status for the death penalty. Brinkema was already moving to reconsider her decision on competence before Moussaoui’s latest outburst. Brinkema ordered new evaluations but Moussaoui refused to submit, stating that it would be “crazy to see your Dr. Frankenstein.” That should have given Brinkema sufficient grounds to compel evaluation and, if necessary, presume incompetence until an evaluation is completed to the court’s satisfaction.

What should be clear is that, if Moussaoui’s mental state was in question before his “confession,” it should be confirmed before any confession is accepted by the court. Yet, Brinkema appears to have put the evaluation issue aside. Instead, she told Moussaoui that she would give him one week to reconsider his confession.

Ultimately, justice is defined by restraint. It is the restraint exercised over mob and arbitrary forms of justice. It is the restraint that affords presumptions of innocence for the least popular or least deserving defendant. It is the restraint that is tested every day by Moussaoui. However, trials are never about the defendant exclusively. They are a measure of the society that claims the right to hold and punish those who violate the law.

Moussaoui may be a terrorist, but that is more the reason not to cooperate with him in a mockery of justice.

Jonathan Turley
July 22, 2002