At first, this would appear to be a triumph for the criminal-justice approach for handling terrorists. Zacarias Moussaoui lost his first appeal to overturn his conviction on charges of terrorism after surprising everyone with a guilty plea:
A federal appeals court on Monday upheld the conviction and life prison term of Zacarias Moussaoui, the only person convicted in a U.S. court in connection with the Sept. 11, 2001, terrorist attacks.
The U.S. Court of Appeals for the 4th Circuit rejected an effort by Moussaoui’s lawyers to send the case back to federal court in Alexandria, where he pleaded guilty in 2005 to an al-Qaeda conspiracy to crash planes into U.S. buildings that led to the attacks on the World Trade Center and Pentagon. After a two-month sentencing trial in Alexandria, Moussaoui was sentenced to life in prison.
Attorneys for Moussaoui had told the Richmond-based court that he should be retried or resentenced because he was deprived of his constitutional rights. The Justice Department argued that the proceedings were fair.
Fair? Not quite. The appellate court basically ruled that Moussaoui’s surprise guilty plea made his points on appeal moot. After all, pleading guilty means the defendant admits to the charges, and appeals courts are reluctant to consider appeals in those circumstances unless the plea comes under some kind of duress. Andy McCarthy at The Corner read the 78-page opinion and reports that the US dodged a bullet:
The appellate court notes that Moussaoui claims it was error for the trial judge to interfere with his unqualified right to represent himself; “to have personal, pretrial access to classified, exculpatory evidence”; and to be able to summon witnesses like co-conspirator Khalid Sheikh Mohammed for trial testimony. The Fourth Circuit acknowledges that all these claims have merit, but the court finds that Moussaoui, by pleading guilty, waived any claim of prejudice. Opinion at pp. 24-28. Even more alarming, the Fourth Circuit concedes that its waiver rationale is inconsistent with a decision by the Ninth Circuit on which Moussaoui relies — i.e., if the Fourth Circuit had followed the Ninth Circuit, there’s a good chance it would have had to agree that, regardless of the guilty plea, Moussaoui’s convictions should be reversed.
The Fourth Circuit also reminds us that the trial judge initially struck the death penalty from the case because the government refused to give Moussaoui access to the al Qaeda prisoner witnesses. The Fourth Circuit reversed the judge at the time, but on the condition that it would be open to revisiting that conclusion if the government failed to provide Moussaoui with all the classified exculpatory information he was entitled. At that critical moment, Moussaoui decided to plead guilty. That is, we never found out what would have happened if Moussaoui had insisted on a trial at which he’d have access to all these witnesses and other national-defense information. The guilty-plea is deemed to have waived any claim by Moussaoui that he was denied the information to which he was entitled.
In the next case — like, say, KSM’s civilian trial — the defendants will be smart enough not to plead guilty. They will insist on getting every piece of intelligence they’re entitled to. And the prosecutors will look at this ruling on Moussaoui’s appeal and realize they’d better give it to them or risk having the case thrown out. That’s what the law-enforcement approach buys you.
The Moussaoui case made clear that the courts would treat terrorists appearing before them with the same considerations as any other criminal defendant. That will either force the government to give terrorists access to classified material used to capture them and find evidence of their terrorism, including witnesses and agents involved, or face having the cases tossed. Moussaoui wound up doing life in prison not because he was destined to do so in an American court trial, but because he wanted to be as disruptive as possible.
Will Khalid Sheikh Mohammed want to do the same thing? Hardly. KSM was captured in Pakistan and handed over to US authorities. His attorneys will likely want to explore in great detail the relationship between the ISI and US intel and military personnel, get names on the record, and demand the testimony of his captors to explain in great detail the circumstances of his capture and his extradition. According to this opinion, KSM may be entitled to all of that — and if the US doesn’t give it to him, the charges could be dismissed.
The alternative would be to change the laws in the civil system to allow secret evidence to be presented without the defendant challenging its provenance, or secret testimony to be proferred without the defendant able to challenge the witnesses openly in court. But that would mean that the rest of us would have to live under those rules as well.
Of course, advocates of the civil-system approach will argue, a dismissal won’t mean that the Obama administration will let KSM and his cohorts walk. They will just transfer them to military detention again. But that’s an argument for never having transferred them out of the military system at all, which Congress twice authorized to adjudicate KSM’s case and those of others captured outside the US during the war.