Zacarias Moussaoui is back. The self-confessed terrorist has filed an appeal with the United States Court of Appeal for the Fourth Circuit, contesting the trial court’s refusal to give him his choice of lawyers and the denial of information to him in his defense. While it is extremely unlikely that he will prevail in the Fourth Circuit, the arguments being made by Arnold and Porter are not nearly as crazy as their client.

Moussaoui was by any measure a barking lunatic. (Click here). However, for the Bush Administration, he was the first of a series of claimed 20th hijackers who had to die for 9-11. (Click here). Ultimately, the Administration spent millions of dollars and years in a vain effort to kill Moussaoui and failed — only securing a life sentence that it could have secured years earlier.

From the outset, Moussaoui (a hateful and vile human being) worked hard to commit a series of self-inflicted wounds. While found (rather implausibly) to be sane, he was clearly an unhinged individual with little hold on reality. He would rave at Judge Brinkema, Israel, America, and do everything short of chewing the carpet in the courtroom. However, despite all of these antics, his case was highly disturbing. He had become a trophy terrorist for the Bush Administration, which wanted him to die for 9-11 –regardless the fact that it became obvious soon after his arrest that he had little to do with the attack.

The appeal is based on the insistence of Judge Brinkema that Moussaoui usedcleared counsel. For those of us who do national security cases, it is necessary to obtain and maintain a security clearance. For clients, that restricts the pool of counsel and the government can manipulate the process by denying clearances to some lawyers. Moussaoui insists (as he did at trial) that he never wanted the lawyers on his team and that the clearance requirement denied him the constitutionally protected right to choose counsel. He further insists that he only took the plea (against the advice of counsel) because his counsel would not tell him what the evidence was in his case to contest guilt.

In making the case to undo his plea, he can rely on a decision in 2006 by Justice Antonin Scalia. In United States v. Gonzalez-Lopez, the Court considered a challenge by Cuauhtomec Gonzalez-Lopez who lost his preferred lawyer, California counsel Joseph Low, when the judge barred Low for passing a note to a local lawyer. In a 5-4 opinion, Scalia said that the denial violated the right to counsel at the very “root meaning” of the Sixth Amendment. He wrote that, even when the new counsel performed adequately, it is still a violation of the guarantee: “Deprivation of the right is ‘complete’ when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received.”

Moussaoui’s appeal raises some disturbing aspects of the growing use of classified evidence in criminal cases, restrictions on counsel, and most importantly, the denial of access by the client to such information. When I handle such cases, I routinely have to deny access to information tp my client while asking him to make decisions on his case. This is precisely what Moussaoui is now contesting. He insists that he was forced to make a decision on a plea while being denying the information needed to make such a decision intelligently.

Once again, the odds are against Moussaoui. However, his appeal could make for important precedent in this area.

For the full story, click here.