- Marjorie Cohn - https://marjoriecohn.com -

Scapegoats in Terror War

The Moussaoui jury today enters its fifth day of deliberations on whether to execute the self-avowed conspirator in the September 11 attacks. After hours of graphic testimony and videotapes of the horrors on 9/11, as well as Moussaoui’s confession, this should have been an open-and-shut case.

Yet the jury cannot ignore the fact that Zacarias Moussaoui is a paranoid schizophrenic. Moussaoui testified that he and would-be shoe-bomber Richard Reid were slated to fly a fifth airplane into the White House on September 11. But the FBI admitted there was no evidence that Reid had prior knowledge of 9/11, or that al-Qaeda had told him to work with Moussaoui.

Defense psychologist Xavier Amador testified that Moussaoui has firmly held delusional beliefs that George W. Bush will free him from prison and that his attorneys are conspiring to kill him.

In fact, Bush is surely delighted that it is Moussaoui, and not the real culprits responsible for the 9/11 attacks, who is on trial. If Bush’s hired gun Alberto Gonzales were to charge Khalid Sheikh Mohammed or Mohammad al-Qahtani, both now in US custody, with crimes for their responsibility for those attacks, their statements would be inadmissible, because they were obtained by torture. Mohammed is the reputed mastermind of 9/11 and al-Qahtani is the alleged “20th hijacker.”

So the best the Bush administration can do to seek justice is to prosecute a mentally ill marginal bit player who was in a Minnesota jail on September 11, 2001.

This is not the first time Team Bush has hidden behind a scapegoat.

Even though the prosecution had no direct evidence tying the Lackawanna Six to terrorist crimes, all six defendants pleaded guilty to crimes that brought them 6 1/2 years to 9 years in prison. The attorney general had threatened to charge them with being “enemy combatants” and ship them to Guantánamo, to be held indefinitely, with no trials and no access to lawyers or courts.

Bush & Co. has suffered a string of defeats in the “terror” cases it has attempted to prosecute.

Last year, a Florida jury acquitted a former professor charged with supporting Palestinian groups. The year before, an Idaho jury refused to convict a college student accused of aiding terrorists in Chechnya and Israel.

An Oregon lawyer arrested by the FBI two years ago was released after being held in custody for nearly three weeks. The FBI had linked him to the Madrid train bombings with a faulty fingerprint identification.

And a judge reversed the convictions of two Detroit men arrested the week after September 11, 2001, for planning a terrorist incident. The prosecutor had covered up the fact that its key witness admitted lying to the FBI.

After Jose Padilla had languished in custody with no charges for nearly three years, Bush finally charged him with a conspiracy unrelated to 9/11 or the “dirty bombing” that former Attorney General John Ashcroft had ceremoniously proclaimed shortly after Padilla’s arrest. Afraid the Supreme Court would slap down the president for designating US citizens “enemy combatants,” the Department of Justice sought to pre-empt an unfavorable ruling by charging Padilla with a crime.

On Friday, a federal judge rejected requests by the Justice Department to further limit the defense’s use of the secret evidence the prosecution plans to employ against Padilla.

What about the so-called Bush “victory” in prosecuting Hamid Hayat of Lodi, California? The day after the jury’s guilty verdict last week, one of the jurors said she had never believed that Hayat was guilty, and that she was pressured by other jurors into changing her vote. The case against Hayat relied on a paid FBI informant whose credibility was undermined at trial and on statements made by Hayat without his lawyer present. The interrogations were conducted in English, which Hayat does not fully understand. Hayat’s lawyers said that detectives used leading questions and his statements were made under duress.

Hayat was prosecuted for providing material support to terrorists by attending a training camp in Pakistan. But the government presented no evidence that Hayat had planned or participated in any terrorist act, or that he had ever been in Pakistan.

Moreover, the material support statute under which Hayat was convicted has twice been declared unconstitutionally vague by the United States Court of Appeals for the Ninth Circuit, because it does not require proof of any overt act.

The federal judge who presided over Hayat’s case declared a mistrial in the case of Hayat’s father, who had been charged with lying to investigators in order to conceal his son’s actions. After eight days of deliberations, jurors were unable to agree on his guilt.

Georgetown University law professor David Cole affirmed, “The government in the war on terrorism has generally swept broadly and put a high premium on convictions at any cost. That puts pressure on prosecutors – to overcharge, to coach witnesses, to fail to disclose exculpatory evidence.”

The judge in Moussaoui’s trial barred the government from seeking the death penalty after prosecutors refused to give the defense access to detained al Qaeda leaders to exonerate Moussaoui. Judge Leonie Brinkema’s decision was overturned by the appeals court. Judge Brinkema nearly dropped the death penalty again after prosecutors improperly coached several witnesses.

Bush frequently declares that his administration is bringing the terrorists to justice. Yet his systematic use of torture on prisoners, a series of botched prosecutions, and pathetic scapegoats hardly inspire confidence in our chief executive.

Indeed, on Friday, the Justice Department admitted for the first time that it issued 9,254 subpoenas to banks, telephone companies and Internet providers last year, seeking information on 3,501 US citizens and legal residents. This should give us all pause. You or I could be next.