Is the Massaoui trial undermining the U.S. judicial system?

May 2, 2002 6:49 AM

Is the Massaoui trial undermining the U.S. judicial system? "[W]hen an alleged terrorist and self-professed enemy of the state seeks to use a trial to broadcast his message, incite his confederates, and to possibly pass coded messages to America's enemies, the assumption that a free, open trial is best for this democracy is called into question." How far must we Americans go to ensure that (even self-professed) enemies of the state enjoy the same freedoms as the rest of us?
posted by mkultra (13 comments total)

Doesn't being suicidal reflect poorly on one's mental competency to stand trial pro se?
posted by greensweater at 7:03 AM on May 2, 2002

"Undermining the legal systam"? How? He sounds like the crackpot extremist he is, its not going to "incite" anyone who isn't already an equal nutjob, everyone else would be embarrased to be associated (Spain back to the muslims? Please).

This author of this article of course knows what I just said, and set up the "undermining the legal system" arguement just to knock it down at the end of their article with a little music-swelling, flag-waving speech. Cute writing technique, I guess.
posted by malphigian at 7:06 AM on May 2, 2002

No, the idea that what he might say is so dangerous that it's worth abandoning our legal precepts in order to suppress his speech is what has the potential to undermine the legal system, not the ravings of yet another thug.
posted by NortonDC at 7:12 AM on May 2, 2002

The answer, according to Lithwick:

If we really believe in the free marketplace of ideas, we'll have to allow Mr. Moussaoui to put his own asinine convictions on the block. Be warned: It will be ugly. Be warned: Our enemies will hoot with joy. But what's the alternative? If 200 years of constitutional ideals can't withstand the taunts of one angry little lunatic, we shouldn't be fighting a war to defend them. Moussaoui can go ahead and trash this trial, trash U.S. morale, giggle with his terrorist buddies, and embarrass the court. He still won't have taken our whole justice system down with him, unless we give it to him.

Hear, hear.
posted by sacre_bleu at 7:31 AM on May 2, 2002

This may not be her best piece ever, but Lithwick's legal coverage usually kicks ass
posted by matteo at 7:56 AM on May 2, 2002

As the article points out, there is not only the issue of an individual abusing the system to spout an offensive ideology, but of manipulating the process to expose thorny legal issues. Note, for example, the paragraph on access to evidence that also happen to be state secrets. These are issues that your run-of-the-mill circus trial (so odd that you can now use that phrase without irony) haven't had to deal with.

Here's another follow-up question- if this trial turns into the fiasco many think it will become, will the White House seize the opportunity to sway public opinion to implement military tribunals?
posted by mkultra at 8:07 AM on May 2, 2002

Given the way Ted Kaczynski was railroaded, I don't think Massaoui has a chance.
posted by Ty Webb at 8:29 AM on May 2, 2002

This'll be a landmark case, for a number of reasons.

He's quite right to fire his attorneys, for a start. I doubt he'll be able to find anyone to represent him who isn't a complete grandstander, but he may be able to find a grandstander who's more trustworthy. It's pretty clear what he expects of his co-counsel: a job that's mostly in the nature of translation, between Arabic or French and the dialect of American legalese.

He's also right about the mental disability and competence issue. The system is set up to assume a defendant who will duck and weave and pretend as much as necessary to save his life, and competency hearings take place on that assumption. Moussaoui won't, I expect. Competency hearings are pointless in his case.

Lithwick's blithe assurance of how strong his case is may not turn out, because I think Moussaoui will admit to whatever it is he's accused of and attempt to claim legal justification as a defence, rather than denying having done it. This will shift the onus of proof to himself, and he simply doesn't have a case there, but he will be fine with that; she's right to the extent that he doesn't want to 'have a case', he wants to make a statement.

He's right to oppose a jury trial either way, for exactly the reasons he states, and also the simple fact that the jury is tainted to an unprecedented extent. He can't get an objective jury.

It's not as much of a strain on the legal system as Lithwick makes out, nowhere near as much of a ripple as, say, Entick v Carrington (to cite a case known to every law student :-). I fully expect the judge to take the high road and give him every opportunity to examine the evidence and seal off anything that really shouldn't go into the record. Considering it's all very much post facto, claims of this nature seem like the usual run of governmental aversion to transparency rather than any substantial increase in the threat to the people of the USA. I mean, telling the guy who you think helped organize it what happened hardly breaches security. It might weaken your case if he can rebut your facts, but that's the whole point of the trial.

As to instructions to fellow terrorists, the idea is ludicrous: (a) he doesn't know anything current, he's been in prison; (b) whoever obeys his instructions to go bomb something was certainly going to bomb somewhere else anyway; (c) government agents, and individual reporters (who often are much smarter) read the same transcripts. The bottom line is that he's allowed to make lengthy speeches that go into the case record; that's a person's right, though there are limits on when speeches can be made and how long they can be. I doubt he'll say anything surprising.

This is something I'd like an American lawyer's opinion on though: what specific restrictions on the content of a defendant's speech exist? For instance, could a person say something obscene, defamatory, inflammatory, etc etc?

Ash.
posted by aeschenkarnos at 8:40 AM on May 2, 2002

Bring it on...the U.S. legal system is already beyond salvagability.
posted by rushmc at 8:57 AM on May 2, 2002

Ty Webb has it right. They'll save a lot of time and resources if they just execute him now: it's going to happen anyway.

Not that I advocate such actions. I'm just saying.
posted by rocketman at 10:00 AM on May 2, 2002

given the nature of surrounding the mechanics of the plot, it is doubtful this guy has any secrets. it's nature calls for him to have as much operational knowledge concerning its inception wiether he is alive or dead.
posted by clavdivs at 2:23 PM on May 2, 2002

strike 'of'
posted by clavdivs at 2:24 PM on May 2, 2002

I can't see the problem of going pro-se. However, the problem is that way too much of this trial will be put into the media, so of course he could send messages or incite others. Perhaps we should make sure the media doesn't dramatize the case, rather than being unconstitutional and changing the rules around for him.
posted by wackybrit at 4:06 PM on May 2, 2002