Blogs > HNN > Re-Writing the Past: The Strange Case of Zaccarias Moussaoui

Apr 3, 2006 8:23 pm

Re-Writing the Past: The Strange Case of Zaccarias Moussaoui

When I first wrote here a few months ago about the Zaccarias Moussaoui case, I remember making a mental note to revisit the case at some point and write about the various logical and legal disasters that have come to constitute it. Luckily, Dahlia Lithwick has made that promise superfluous with a pair of spot-on articles on the topic in Slate.

The first piece, written with Stanford law professor Robert Weisberg, and aptly entitled"Causation Inflation," makes the following argument:

You cannot listen to the prosecution's increasingly strange theory of causation without recognizing that they have somehow imported what sounds like medical malpractice analysis into this federal criminal trial. Where but in this death-penalty proceeding would you witness the odd spectacle of defense and prosecution arguing over whether Moussaoui was 8 percent or 11 percent responsible for the attacks on the Twin Towers, and whether the government (through its negligent investigation of this and other leads) was 12 percent or 19 percent responsible? This isn't how federal criminal conspiracy law works. It's not really how criminal law works at all.

If Judge Brinkema really does take the death penalty off the table today in the wake of egregious procedural mistakes made by the government side, a lot of angry people will protest that Moussaoui was allowed to live because of a legal technicality. But the government's creation of a quasi-tortious new federal crime of"failure to disclose criminal conspiracy leading to decreased probability of plot-foiling" was the real, substantive problem with this trial, almost from the outset.
I hate when someone else writes what I wish I had written. The more recent article (also rather aptly titled) concludes, in light of the finding of Moussawi's death-eligibility, with this:
Yet because of Moussaoui's false testimony, the government's nutty conspiracy theory, and the nation's need for closure, Moussaoui's name will be in the history books and the law books for all time; inextricably linked with 9/11, just as it has always been in his dreams. And perhaps we will all sleep better for believing that if Moussaoui had come forward and told what little he knew, we could have stopped those terrible attacks, just as it happens in our own dreams.

How lucky for Moussaoui that his fantasies and ours are such a perfect match.
Like the war on drugs, the much-vaunted"homeland security" element of the war on terrorism is starting to take its inevitable toll on the rule of law via that ever-convenient, ever-tempting, intoxicatingly-corrupting proxy for justice: the desire for vengeance by way of the desire to undo and re-write the past. But such fantasies are the quasi-logical consequence of a war on terrorism conceived of as a police action designed to"bring the terrorists one-by-one to justice." The question is whether we'll rethink that idea and face the enemy accordingly.

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