US to appeal Moussaoui decision
Last week's decision by the US Justice Department not to oppose the dismissal of charges against Zacarias Moussaoui, alleged '20th hijacker' in the 11 September attacks, may be part of a strategy to gain his conviction by other means, writes David Tresilian in Paris
The case against French national Zacarias Moussaoui, the only person to have been charged in the United States with involvement in the 11 September 2001 attacks on New York and Washington, took a new twist last week when the US Justice Department announced that it would not contest a move by Virginia District Judge Leonie M Brinkema to dismiss the case, following the Department's refusal to allow either Moussaoui or his lawyers access to alleged Al-Qa'eda members currently being held in secret locations in the United States.
The move follows a July 2003 ruling by the judge that Moussaoui must be allowed access to the alleged Al-Qa'eda members, since interviewing them could be crucial in his attempts to prove his innocence and is guaranteed under the Sixth Amendment to the US Constitution, which guarantees access to witnesses and other evidence to ensure a fair trial.
However, the Justice Department has refused any suggestion that Moussaoui or his lawyers have access to the alleged Al-Qa'eda members, citing national security concerns. This has left the judge with no alternative but to dismiss the case, a decision which has been welcomed by the Justice Department, now hoping to appeal at the Federal Fourth Circuit Appeals Court.
The alleged Al-Qa'eda members to whom Moussaoui had requested access are Khaled Sheikh Mohamed, alleged to be the "mastermind" behind the 11 September attacks, Ramzi Binalshibh, alleged to have planned the attacks, and Mustafa Ahmed Al-Hawsawi, alleged to have financed Al-Qa'eda. All three suspects are being held in military custody in secret locations in the US.
Though Moussaoui has refused the assistance of his court-appointed US lawyers, and has in the past insisted on dismissing them and conducting his defence himself, the lawyers have continued to act on his behalf, often on the instructions of the judge.
According to commentators, the move is part of a legal manoeuver on the part of the prosecution to appeal both the dismissal, and, just as importantly, the Virginia court's original decision to allow Moussaoui access to the Al-Qa'eda suspects, in a higher-level court. Moussaoui will not be released, and the charges against him, which carry the death penalty, will not be dropped.
The Bush administration has already made it clear that if Moussaoui cannot be prosecuted in a civilian court because of Sixth Amendment guarantees or other impediments, he will be tried before a military tribunal, where he will be classified as an "enemy combatant" and benefit from none of the usual constitutional guarantees of a fair trial.
Moussaoui, from Narbonne in the south of France, was arrested in August 2001 for not keeping his papers up to date while in the United States, where he had been since February 2001 learning to fly aircraft at flying schools in Oklahoma and Minnesota.
Following the 11 September attacks, Moussaoui was transferred to a prison in New York and charged with being the "20th man" in the group of 11 September hijackers. While there were five hijackers on each of the planes that hit the World Trade Center in New York and on the plane used to hit the Pentagon in Washington, there were only four on United Airlines Flight 93, which crashed in Pennsylvania not far from Pittsburgh.
According to US prosecutors, had Moussaoui not been arrested in August he would have been the fifth hijacker on UA Flight 93.
In hearings held in July 2002, Moussaoui at first pleaded guilty to four of the six counts against him, all of which could bear the death penalty, but then withdrew his plea on the advice of the judge, deciding to plead not guilty.
Moussaoui's dramatic changes of plea, his decision to dismiss his court-appointed lawyers and carry out his defence himself despite his lack of knowledge of the US legal system and imperfect command of English, and his eccentric behaviour have focussed attention on the conditions in which he is being kept in prison in the United States.
Several years kept in a small cell in solitary confinement with lights on 24 hours a day and little contact with the outside world may have affected Moussaoui's mental health, causing him to become incoherent and aggressive.
Among other actions, Moussaoui has been writing letters in broken English from his prison cell to institutions in Europe, including the European Court of Justice and the European Parliament drawing attention to his case and complaining of the conditions in which he is being kept.
These developments, together with the ever-present threat of the death penalty, outlawed in all the countries of the European Union, have caused concern in France, where the French Magistrates Union and Human Rights League have requested that the French government not cooperate with the US authorities in prosecuting Moussaoui.
In September 2003, a documentary shown on the French television channel France 3 showed efforts by Moussaoui's mother, Aicha Al- Wafi, to secure a proper defence team for her son, together with her struggle to gain access to him in the United States.
Mme Moussaoui has frequently denounced the attitude of the American authorities together with the conditions under which her son is being kept, saying that Moussaoui had "deteriorated physically and psychologically [while in prison in the United States] to the extent that I did not recognise him... I was shocked to see him in such a state."
Commenting on the "admirable" programme, the French newspaper Le Monde said that it showed the efforts of a mother "trying the impossible to get her son the defence to which he has a right... [despite] the climate currently reigning in the United States."
The international human-rights organisation Amnesty International has also protested against US government attempts to "circumnavigate normal criminal justice procedures" and against "the growing trend [in the US] to have people classified as enemy combatants and moving such cases into the sphere of military justice".
Al-Ahram Weekly Online : 2 - 8 October 2003 (Issue No. 658)
Located at: http://weekly.ahram.org.eg/2003/658/in2.htm