It isn’t easy to have sympathy for Frenchman Zacarias Moussaoui, the only person convicted in connection with the September 11 terror attacks. During his trial, Moussaoui pledged his allegiance to Osama bin Laden and prayed that al-Qaeda succeeds in its violent jihad against the U.S; he also mocked the families of 9/11 victims and dared the court to inflict the harshest punishment for the crimes which, after veering erratically between denial and advocacy, he finally took responsibility for. In May 2006, a jury decided against the death penalty but sent Moussaoui, now 41, to life imprisonment and near total isolation in Colorado’s ADX Supermax prison.
Now Moussaoui says he regrets pleading guilty. But, he has a problem: U.S. law does not allow those who have taken that route to appeal their cases. His only shot at winning a lighter sentence is the July 14 decision by a federal appeals court in Virginia to re-hear arguments that the government had failed to turn over key evidence to Moussaoui and his lawyer that might have helped in his defense. As politically untenable as it may seem, President Barack Obama should support Moussaoui’s efforts to win another trial.
Why Because justice and sympathy are different issues. Moussaoui’s courtroom antics and declarations were outrageous but the prosecution of his trial was a farce nonetheless. Federal Judge Leonie Brinkema repeatedly criticized certain aspects of the prosecutors’ efforts to win a guilty verdict as both underhanded and illegal. At one point in the trial, Brinkema rebuked prosecutors for illegally coaching a witness from a federal agency. She called that tampering “an egregious” and a “significant error by the government affecting the… integrity of the criminal justice system of the United States.”
On one occasion Brinkema backed Moussaoui’s call to cite testimony from Guantanamo prisoners and 9/11 masterminds Khaled Sheikh Mohammed and Ramzi Binalshibh for his defense. Prosecutors resisted that demand, claiming the information was classified.
However, Moussaoui continued to make himself the ever-ready scapegoat in the pursuit of 9/11 justice that seemed to provide no other perpetrators to prosecute. He was, indeed, a dream come true for the prosecution. First, he fired his defense team, zigged and zagged between pleading innocent and guilty, and ranted in ways that had some observers questioning his sanity. And the circumstantial evidence against him didn’t make Moussaoui look any better: he was arrested in August, 2001 while attending a Minnesota flight school. When investigators took a closer look at him after 9/11, they discovered jihadist literature and plane flying information on his computer. Further inquiry led to the discovery that Binalshibh had wired him $14,000 from Germany; a check with French officials showed that he’d long been under watch as a suspected jihadist who’d made the de rigeur trip to al-Qaeda’s Afghan haven.
But Moussaoui had been in jail nearly a month when the attack occurred, meaning he couldn’t have been directly responsible for it. Moussaoui was also a lousy student who flunked out of several flight schools. And, most importantly, the statements by Sheikh Mohammed and Binalshibh confirmed what anyone watching his trial already knew: Moussaoui was too big a loud-mouth and hot-head to let anywhere near a plot like 9/11. In the end, Moussaoui’s conviction relied almost entirely on his own guilty plea and inconsistent admissions to having wanted to carry out terror attacks in the U.S.
His mother Aicha el-Wafi, told TIME that Moussaoui informed her that he pleaded guilty in the fatalistic belief the process had to be rigged, that no American court would ever give a sworn enemy a fair chance. American values include respecting the rights of even those who attack them. That’s been a key consideration in Obama’s moves to roll back many Bush administration policies in the war on terror. During a recent speech in Cairo, the U.S. President explained his decision to close the notorious Guantanamo Bay prison as part of a wider push to reverse extra-legal Bush administration security measures that stomped on long-standing principles of American civil liberty. Seeking to defend fundamental American ideas from attack in that way, Obama noted, “led us to act contrary to our ideals.”
Thanks to the Virginia appeals court ruling, Obama has an opportunity to demonstrate his commitment to those ideals, as unpalatable as Moussaoui may be. The Frenchman should be re-tried for what he actually did, rather than what he says.