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Justice for Zacarias Moussaoui By: John Rosenthal
Policy Review | Thursday, December 27, 2007

THE DEFENDANT: I will testify. I will take the stand and tell the truth.
THE COURT: For the third time, Mr. Moussaoui —
THE DEFENDANT: Everybody know now that I will testify of the entire truth that I know.
THE COURT: Mr. Moussaoui, you have been asked by the Court before not to speak. This is not your opportunity. Now, would you please sit down?
THE DEFENDANT: For four years, I have no opportunity to oppose.
THE COURT: I will ask the marshals to remove Mr. Moussaoui from the court yet again.
THE DEFENDANT: This is pure tyranny. I will take the stand —
THE COURT: Mr. Moussaoui —
THE DEFENDANT: — and I will testify of the entire truth. Nobody can not say now that they don’t know that I want to testify. I will take the stand, and I will say the truth that I know. And this defense is a fraud. This is not my defense. It is an entire fraud. They are lying from top to end.

— Zacarias Moussaoui and Judge Leonie Brinkema, U.S. District Court for the Eastern District of Virginia, February 6, 20061

Q[uestion]: Does anything that happens here make a difference?
A[nswer]: Yes, that I should speak the truth.
Q: Well, the question was does it make a difference? Does anything that happens here, the witnesses ’ testimony, the questions the counsel asked, what the government puts up on the screen, the evidence, does any of that make a difference in terms of your belief as to what will happen to you?
A: I believe in destiny.
Q: You believe in what?
A: Destiny.
Q: In destiny?
A: That’s correct. I believe that God will give life and death, and just to be sure that what I ’m doing now, is that I just have to speak the truth and God will take care of the rest.

— Testimony of Zacarias Moussaoui, U.S. District Court for the Eastern District of Virginia, March 27, 20062

In January 18, 2002, barely four months after the September 11 attacks, U.S. District Court judge Leonie Brinkema made a fateful ruling that would profoundly impact the public ’s ability to understand the nature of these attacks and of the enemy that carried them out. Rejecting motions by the television networks Court tv and c-Span, Judge Brinkema ruled that court proceedings in the case of the United States vs. suspected 9/11 co-conspirator Zacarias Moussaoui could not be broadcast in any form. The judge thereby upheld the mandatory character of a federal rule against the broadcast of judicial proceedings. She insisted, moreover, that she would have banned cameras and audio broadcasting even if the rule had not been mandatory. In a hearing on the motions, the judge pondered the petitioners ’ argument that the rule violated the public’s constitutional right to access:

Well, you know, this courthouse and the court reporters who will be handling this case have realtime court reporting. Which means that practically simultaneous . . . transcripts will be available of the trial proceedings. Now, that, of course, is the official record. . . . Why is that not more than sufficient to fully advise the public at large as to what is going on in the courtroom?3

In her ruling, the Judge then made clear that she had determined that it was. “An audio-visual feed of the proceedings to a nearby courtroom has increased seating capacity to 200 seats,” she wrote. “Daily transcripts will be electronically available within three hours of the close of each day ’s court session. . . . These arrangements fully satisfy the constitutional requirements for openness and accessibility. Moreover, the immediate availability of the transcripts will avoid the concerns expressed by the intervenors about minimizing inaccurate reporting. ”

The judge did not mention, and apparently did not factor into her determination, that while transcripts would indeed be electronically available after each court session, they would only be so at a price: namely, $ 1 per page, with a typical trial session running into the hundreds of pages. Just how she could have imagined such an arrangement to be functionally equivalent to members of the public being able to watch the proceedings for free on cable is anybody ’s guess. Perhaps the judge somehow believed that print media outlets would fill the gap, purchasing transcripts and making them available to their readerships. In fact, the established media rarely published any material from the transcripts, let alone the thousands of pages comprising the complete record of the trial and pre-trial proceedings.

Instead, the investment involved in purchasing and publishing transcripts was borne by a conspiracy-mongering, anti-government website named Cryptome, which specializes in the publication of “prohibited” documents, “cryptology” (apparently the study of “secret messages”), and the exposure of “secret governance.” Cryptome has also come to the attention of American law enforcement officials for publishing maps and photographs of sensitive government installations, apparently in full cognizance of the fact that the material would be of interest to terror organizations. That it would be left to a site like Cryptome to perform the obvious public service involved in making available transcripts of the Moussaoui trial is in and of itself a gauge of how thoroughly the established media failed the American public in their coverage of the case. Moussaoui had undoubtedly whetted the appetite of the Cryptome enthusiasts with his often wildly incoherent handwritten pretrial motions, wherein he managed simultaneously to sing the praises of the 9/11 attacks and to insinuate that the attacks were, nonetheless, somehow part of a broader U.S. government “conspiracy.” Although the originals of Moussaoui’s motions were already available on the website of the court, a selection of them was painstakingly and with evident devotion retyped by Cryptome contributor “jm” for publication on Cryptome. (Referring to spelling and grammar mistakes in the motions, and apparently not appreciating the difficulties the French-born Moussaoui might face writing in a foreign language, jm explains: “these were reproduced faithfully to zm’s original and not marked or corrected in any way. I think they show an intense emotion and urgency that zm was writing with. When one is fighting for one’s life there are more important things than spelling and grammar.”)4 But as the nuts-and-bolts testimony of the actual trial failed to provide any titillating revelations to support the government conspiracy thesis, the Cryptome readership apparently grew tired of the Moussaoui case. Roughly halfway through the trial proceedings, Cryptome, citing “surprisingly low reader interest and cost,” ceased publication of the transcripts.5 Curiously — despite having already purchased well over $1,000 in Moussaoui transcripts and published tens of thousands of dollars’ worth of transcripts from other terrorism-related trials — the site owner did not even see fit to reverse course two weeks later when the Cryptomites ’ hero, Zacarias Moussaoui, made good on his vows and dramatically took the stand in his own defense.

The media failed the American public in their coverage of the case, rarely publishing material from the transcripts.

As a consequence, the part of the record of the Moussaoui case that is readily accessible to the public is disastrously skewed. Courtesy of the court, the bizarre ramblings in Moussaoui ’s pretrial motions have been freely available on the Internet for over five years now, during which time they have irrigated the fevered mental landscapes in which anti-American phantasms prosper the world over. On the other hand, and also courtesy of the court, Moussaoui ’s remarkably lucid and coherent testimony has, for all intents and purposes, been as inaccessible to the public as it would have been had Moussaoui testified before a Star Chamber. In this testimony, Moussaoui, among other things, explicitly repudiated his pretrial motions, dismissing them as, in his own words, “propaganda.” “I knew that my pleadings were being put on the Internet,” he explained. “. . . I carry on my propaganda war. You might not understand it, I know that some people Muslim around the world have read my pleading and have been probably motivated or happy to see that I don ’t give in. I fight on” (March 27, 2006; 2378).6

A comparison of the Moussaoui trial transcripts with the contemporaneous coverage of the trial in the media makes abundantly clear that Judge Brinkema ’s confident assurances were mistaken: The public was not “fully advised” as to what was going on in the courtroom, and the potential for inaccurate reporting of which the petitioners warned was far from being “minimized.” The public was in fact persistently misled about what was going on in the courtroom. An Italian Communist politician is supposed once to have observed that it is a “constant” of Soviet-style communist regimes that “the leadership lies even when it does not have to.” What is so remarkable about the coverage of the Moussaoui case, when compared to the official record, is that the major media, with the rare and usual exceptions, misled the public not only on the broad contours of what was transpiring in the trial, but even on minor details: even, so to say, “when it did not have to.”

Media inventions

Who can forget , for example, the drama surrounding the revelation that a “government” attorney, Carla Martin, had sent trial transcripts and leading commentary on the case to upcoming witnesses, thus violating a court order? Martin was not, in fact, part of the prosecution team. She was a lawyer for the Transportation Security Administration ( tsa) who counseled aviation security witnesses for both the prosecution and the defense. But the media ’s vague description of her as a “government” attorney served to associate her with the prosecution, thus creating the false impression that the episode was proof of prosecutorial misconduct. The fact that it was the prosecution itself that had brought the violation to the Court ’s attention was not permitted to dissipate this impression. The fact that Martin’s commentary largely consisted of dismissive remarks on the prosecution’s theory of the case was, as a rule, not mentioned at all. Instead, the major media transformed the false impression into the “story” itself, pronouncing the case to be threatened by what cbs News, for example, unequivocally labeled “a blatant violation by the prosecution.”7 Judge Brinkema’s censorious observation that she had “never seen such an egregious violation of court’s rule on witnesses” (March 13, 2006; 1002) was widely quoted in this connection. All her statements praising the prosecution ’s conduct in the matter and making clear that it bore no responsibility for the violation were, on the other hand, passed over in silence. “I certainly credit the prosecutors for bringing this to my attention immediately, ” the Judge remarked only moments after her comment on Martin’s “egregious violation” (1003). “It was brought to the prosecutors’ attention — and they get great credit for having immediately alerted the Court,” she interjected for the benefit of the jury (1024). Dismissing the jury for the day, she instructed them: “Again, I want to make sure you understand neither our prosecutors who brought this to my attention immediately, nor the defense counsel, had anything to do with this ” (1025). But what percentage of the public can be said ever to have understood that or to have been given the opportunity to understand it by the major news organizations?

The part of the record of the Moussaoui case that is readily accessible to the public is disastrously skewed.

And who can forget the poignant testimony of Jan Vogelsang, the clinical social worker from Greenville, South Carolina, who described the allegedly traumatic circumstances of Moussaoui ’s childhood in France? As was brought out by the prosecution on cross-examination — but went unexplained by the news media — Vogelsang regularly serves in capital cases as a paid “mitigation expert”: i.e., a witness who is called by the defense during the sentencing phase of trials in order to persuade jurors that convicted murderers should be spared the death penalty. As likewise came out in court, she speaks no French and based her account upon interviews conducted via interpreters. She had never spoken with Moussaoui himself.

The media reports dwelt particularly attentively upon the allegedly violent, abusive behavior of Moussaoui ’s father, Omar, repeating in lurid detail Vogelsang’s descriptions of the horrors inflicted by him upon his wife Aïcha. According to one widely cited story, for instance, Omar Moussaoui is supposed to have asked his wife to put her ear to a keyhole and then shoved a “long skewer-type metal rod” through it in an evidently unsuccessful attempt to pierce her cranium (April 17, 2006; 3741). It did not seem to bother journalists reporting on the testimony that Vogelsang ’s sole source for the bulk of such bizarre stories was Aïcha Moussaoui herself, nor that the allegations amounted to hearsay. The fact that medical reports cited by Vogelsang did not appear to bear out the extreme degree of brutality she depicted similarly was not deemed worthy of mention. Referring, for example, to a report that spoke of traces of “light violence,” Vogelsang gamely offered that “light violence” in French forensic notation was, on her understanding, just one level below being left in a coma ( 3743).

Vogelsang based her account on interviews conducted via interpreters. She never spoke with Moussaoui himself.

In keeping with the intended “mitigating” effect of Vogelsang’s testimony, the media coverage almost invariably created the impression that Zacarias Moussaoui — or “Zac” as he was repeatedly called by the clearly empathetic Vogelsang — had himself suffered from beatings administered by his father: at least emotionally, if not indeed as their direct victim. “It was unclear if or how often Mr. Moussaoui was beaten,” Neil Lewis noted prudently in the New York Times (April 17, 2006), before adding — as if the one thing were somehow related to the other — “but Ms. Vogelsang said that he was unprepared to deal with the racism he encountered at French schools and orphanages. ” As came out on cross-examination, however, Aïcha Moussaoui left her husband, with children in tow, when Zacarias Moussaoui was merely three years old. Omar Moussaoui would thus have had remarkably little time to have the pervasive effect on Zacarias ’s “childhood” that the reporting of Lewis and virtually all his colleagues implied the elder Moussaoui had had. “I do not have many memories of my father [from this period],” writes Zacarias Moussaoui’s brother Abd Samad Moussaoui in his memoir, Zacarias Moussaoui, mon frère (Zacarias Moussaoui, My Brother), “but Zacarias must have none at all. . . .”8 Confronted with the evidence of the memoir in court, Vogelsang admitted that Abd Samad — who refused to speak with her, but whose book she said she had read — claimed to have no recollection of witnessing any domestic violence from the period of Zacarias Moussaoui ’s infancy and that the only beatings he received as a child were in fact administered by his mother or elder sisters, not by his father.

By excluding such key conflicting facts from their coverage, Lewis and his colleagues conveyed a one-sided and distorted picture of Zacarias Moussaoui ’s family history to the public: a picture in which — per the conventions of contemporary, politically-correct victimography — Aïcha Moussaoui features as a courageous, long-suffering earth mother protecting her brood from the attacks of the menacing brute whom Omar is supposed to have been. This is indeed the picture that Vogelsang evoked in her testimony. She had little for which to reproach Mrs. Moussaoui — other than the fact that she had raised her children in a secular household, thus failing to provide them “exposure to the non-violence of traditional Islamic practices” ( 3733).9 But this is not the significantly more ambiguous picture with which the jury will have been left, following Vogelsang ’s cross-examination.

An English translation of Abd Samad Moussaoui’s memoir was, moreover, introduced into evidence at the trial. Any members of the jury taking the time to read it would have discovered a picture not only more ambiguous than that presented by Vogelsang and relayed by the media, but diametrically opposed to it. For on Abd Samad ’s account, as the two brothers grew up, they came in fact to feel great affection for their father and to resent the strenuous efforts by their mother to prevent them from having contact with him when they were younger. By the time they were teenagers, the brothers, according to Abd Samad, made a point of visiting their father regularly. “We liked him,” Abd Samad writes. “Even if he had been absent, in any case he had never been mean. He had never hit us. And for us, that was very important. . . . He was nice to us. He gave us a little money. And he was rather funny ” ( Zacarias Moussaoui, mon frère, 60).

If not Omar Moussaoui, however, there is clearly a villain of the piece in Abd Samad ’s account: someone whose abusive behavior and negligence Abd Samad explicitly holds responsible both for the psychological troubles of his older sisters and, in large part, for the psychological fragility and rootlessness which, according to him, would make his younger brother Zacarias susceptible to recruitment by radical Islamic currents. This villain of the piece is Aïcha Moussaoui. Accusing his mother of having consciously sought to humiliate his brother, Abd Samad writes: “I know that making such accusations against my mother might appear a serious matter. But the accusations merely reflect the reality. . . . A screaming match between my mother and my little brother could start at 6 pm and go on until two in the morning. My mother would only let up when she saw that her son could not take any more, that he was on the verge of a breakdown ” (70–71).

There is another detail in Abd Samad’s portrait of Aïcha Moussaoui that would have been particularly relevant for the jury: He presents his mother as an inveterate liar with a special penchant for playing the victim and speaking badly of family members. For example, A ïcha Moussaoui has maintained that she was forced to marry her husband in their native Morocco when she was 14 years old. According to Abd Samad, his Moroccan relatives claim, on the contrary, that it was A ïcha who insisted on the marriage against her mother’s wishes. “I learned all these details from my grandmother, my aunt and my uncles,” Abd Samad remarks. “As for my mother, she never spoke of her childhood, other than to tell us that she learned how to sew, that she was forced to marry, that my father was a hard man, that my grandmother was mean, and that a cousin brought her up . . . ” ( 19).

Remarkably, in order to undergird the “theory” that Zacarias Moussaoui’s family history somehow predestined him for a career in terror, Vogelsang suggested on the stand that Abd Samad was likewise an Islamic fundamentalist. As she confirmed on cross-examination, her sole source for this claim — as well as the claim that Abd Samad had suffered from psychological problems — was again Aïcha Moussaoui. Vogelsang said that on her understanding Abd Samad was part of an — otherwise unknown — Islamic sect called the “Abace.” Asked what her evidence for this was, Vogelsang replied: “His mother again talked to me about both of her boys ending up in Muslim sects, and that from her view they are both fundamentalists. And I did see that word written somewhere, A-b-a-c-e, and I remember asking how it was pronounced. I just don ’t recall where I saw it” (April 17, 2006; 3785–86).

This claim is all the more astonishing in light of the contents of Abd Samad’s book. For apart from the biographical details, it largely consists of a detailed polemic against extremist currents in Islam, written from the point of view of a practicing Muslim. Quoting at length from primary source materials, Abd Samad ’s criticisms encompass key figures in the development of Wahhabi doctrine and the Muslim Brotherhood like Sayyid Qutb and al Qaeda ideology chief Ayman Al-Zawahiri. (Abd Samad approvingly recalls his grandmother referring to the Muslim Brothers as the “Criminal Brothers” [167].) His condemnation of terror, moreover, contains none of the equivocal “nuance” that one has come to expect from supposed Muslim authorities like Tariq Ramadan or Yusuf Al-Qaradawi whom the Western media tend hopefully to present as “moderates.” Indeed, Abd Samad explicitly challenges the “moderate” reputation of such self-styled “reformers” and places them squarely within the tradition of Qutb and the Muslim Brothers (85-88). Alluding to the “double discourse” for which Ramadan in particular has become known, Abd Samad pointedly notes: “. . . it is too easy to condemn an attack and at the same time to use formulations in one ’s reasoning that . . . authorize the attacks” (182).

Near the close of his book, Abd Samad Moussaoui recounts his shock when, in the days following 9/11, reports began to circulate in the French media that he and his wife Fouzia were themselves extremists, and his disgust upon learning that the source of these reports was none other than his mother A ïcha. What happened, Abd Samad writes, was that “a reporter from a local paper had gone to interview my mother and had taken everything she said at face value ” (203).10 Via the conduit of paid “expert witness” Jan Vogelsang — an intermediary who protected Aïcha Moussaoui from perjury charges — almost the entirety of the American and indeed much of the world media did exactly the same thing. The media thus created for Zacarias Moussaoui a virtual childhood that, as judged by the full record of the available evidence, bears little relation to his real one.

A would-be martyr?

On march 27, 2006, the defense’s case for sparing Zacarias Moussaoui the death penalty crumbled. While it had conceded, in accordance with the defendant ’s guilty pleas and the Statement of Facts signed by him in April 2005, that Moussaoui was an al Qaeda member and had entered the United States as part of a conspiracy to commit terrorist acts, a principal pillar of the defense ’s case involved denying that he had any direct connection to the 9/11 plot in particular. The defense thus narrowly construed the 9/11 plot as involving preparations for just such attacks as in fact occurred or were supposed to occur on September 11, 2001. On March 27, 2006, however, Zacarias Moussaoui, defying the counsel of his court-appointed lawyers, took the stand — and affirmed the contrary.

Asked by defense lawyer Gerald Zerkin whether he was supposed to be the “20th Hijacker,” as he was commonly known at the time — i.e. the “missing” fifth member of the team that hijacked United Flight 93 — Moussaoui responded: “No, I was not” (2310). He explained that he had signed the Statement of Facts as “20th Hijacker” just as “a bit of fun”: “because everybody used to refer to me as the 20th hijacker.” Zerkin, who had had no contact with his nominal client over the past four years, may have been relieved by the response. Thus far, despite the defense ’s apprehensions, the questioning seemed to be going in its favor. Then Zerkin asked Moussaoui, “Before your arrest, were you scheduled to be a pilot in the operation that was ultimately run on September 11 of 2001?” Based on Moussaoui’s own previous declarations, Zerkin might have expected him to say “no.” In the very April 22, 2005 plea hearing in which he had submitted his guilty pleas, Moussaoui had made a point of insisting that the “broader conspiracy” of which he admitted having been a part was, nonetheless, “a different conspiracy than 9/11” (28). “You can’t point to me a single statement here which say Mr. Moussaoui came into the United States to participate into the 9/11, okay,” he added, “. . . that’s not my conspiracy” (29).

Now, however, Moussaoui answered: “Yes.” “I was supposed to pilot a plane to hit the White House,” he said. “And that was in addition to the other planes that, in fact, struck targets on September 11; is that correct?” Zerkin asked. “That’s correct,” Moussaoui responded, before carefully specifying, “I only knew about the two plane[s] of the World Trade Center in addition of my own plane ” (March 27, 2006; 2311). The major news organizations — which only two weeks previously had been eagerly anticipating a mistrial following the Carla Martin incident — could hardly miss the significance of this admission. The biases of their own reporting made Moussaoui ’s admission seem indeed much more startling than in fact it was. In his April 2005 plea hearing, after all, Moussaoui had already admitted that he had been planning to fly a plane into the White House. That he had been personally approved for such a mission by Osama Bin Laden was part of the Statement of Facts to which he had agreed.11 In the plea hearing, moreover, he offered numerous additional details of the planned attack — without even being asked!

It has become the received wisdom that Moussaoui lied on the stand in order to realize his “dream” of martyrdom.

The only real novelty in Moussaoui’s March 2006 response to Zerkin was his specification that the attack on the White House was scheduled to be carried out on the same day as the other attacks. Although the defense undoubtedly hoped to convince the jury otherwise — and the major media may indeed have managed to convince a large part of the public as much — nothing in the case hinged on this scheduling question. Despite the testimony to the contrary of the defendant, the defense would continue to insist, based upon the reported claims of captured 9/11 “mastermind” Khalid Sheik Mohammed, that Moussaoui was in fact preparing for a “second wave” of attacks supposed to take place after 9/11. But as prosecuting attorney David Novak noted in his closing rebuttal to the defense ’s case, “whether he’s on the first wave, the second wave, or the 20th wave, he still had the same knowledge: I’m al Qaeda. We’re flying planes into buildings. We’re going to take those planes over with short-blade knives. Two of the targets are the World Trade Center and the White House, ” and so on (March 29, 2006; 2813). According to the prosecution’s case, Moussaoui’s specific contribution to 9/11 was to have failed to divulge this information to the fbi when questioned in August 2001. The projected date of his own operation was thus immaterial.

It should be recalled in this connection, moreover, that Moussaoui had pleaded guilty to six counts of conspiracy — including Conspiracy to Commit Acts of Terrorism Transcending National Boundaries, Conspiracy to Commit Aircraft Piracy, Conspiracy to Destroy Aircraft, and Conspiracy to Use Weapons of Mass Destruction — and that five of the six charges as laid out in the indictment specifically alleged that the conspiracy in question led to “the deaths of thousands of persons on September 11, 2001.”12 But for the bulk of the American media, Moussaoui’s March 2006 admission was apparently supposed to represent a “shocking” revelation.

Very quickly, however, the same media began to counteract the effect of this “revelation” by aggressively disseminating what is undoubtedly the major abiding myth associated with the Moussaoui trial: namely, the notion that Moussaoui was actively seeking the death penalty in order to have the glory of dying a martyr ’s death. This supposition effectively rendered Moussaoui’s testimony “confession-proof,” transforming every attempt by him to assume responsibility for his role in the 9/11 plot into just further evidence of his mad quest for martyrdom. There is no need to cite specific examples of this spin. It has become the received wisdom that Moussaoui lied on the stand in order to realize his “dream” of martyrdom, and this supposed “insight” is widely held to explain the jury’s decision in ultimately refusing to apply the death penalty.

Yet, in light of the actual record of the trial and pre-trial proceedings, the suggestion that Moussaoui was actively seeking to be put to death may be the single most outrageous instance of brazenly misleading reporting by the news media in all the coverage of the Moussaoui case. Not only was there virtually nothing — apart from preconceived notions and crude stereotypes — to support this supposition, but, as we shall see momentarily, Moussaoui’s behavior before the court from the time of his arraignment in January 2002 onwards persistently and obviously belies it. This did not, however, prevent the defense from floating the idea in its opening statement to the jury on March 6, 2006. “We know that Moussaoui is an admitted al Qaeda member and that he yearns for martyrdom, ladies and gentlemen, ” defense lawyer Edward MacMahon said in wrapping up, “but now the only way he can achieve that dream and then live on as some smiling face on a recruiting poster for Usama Bin Laden is by your verdict. Please don ’t make him a hero, ladies and gentlemen. He just doesn’t deserve it” (March 6, 2006; 76). But by the close of the “eligibility” phase of the trial — which ended with the jury’s unanimously finding Moussaoui “eligible” for the death penalty — the suggestion that Moussaoui was seeking martyrdom had become so blatantly untenable that even the defense was loath to invoke it. Thus, in his closing statement, given just two days after Moussaoui took the stand and admitted his involvement, MacMahon was reduced to pitching around feebly for other possible motives that Moussaoui might have had for lying. “Moussaoui admitted that he’s a propagandist for Al Qaeda,” MacMahon said, twisting his client’s remarks about his earlier hand-written motions. “That’s obviously one of his motives” (March 29, 2006; 2788). MacMahon insisted that Moussaoui was “manipulating” the jury and that his admissions were part of a “plan” — but he repeatedly let slip that he had no idea what this mysterious “plan” was supposed to be.

MacMahon and his colleagues had ample reason to be embarrassed by the suggestion that Moussaoui might be seeking martyrdom by admitting his involvement, since — as finally came out thanks only to the defendant’s defiance of counsel — Moussaoui had long maintained that they were themselves trying to get him killed. Indeed, from the time MacMahon and his colleagues were first appointed to represent him in December 2001, Moussaoui had used virtually every opportunity he had to speak before the court to insist that having them dismissed from the case was essential to saving his life. In February 2006, after his boisterous attempts to disown the defense team in front of the prospective jury pool repeatedly led to his being escorted from the courtroom, Moussaoui complained to the judge:

Four years, four years you deny me even one minute to express to everybody why these people are organizing my sending to the gas chamber or lethal injection, okay? And each time you have said, “Mr. Moussaoui, you have been [to be] civilized. Mr. Moussaoui, keep quiet or the marshal will kick you out. ” You think that I’m going — today is my death. Today is my death, because I know that if I don’t make sure that these people are not going to represent me, I know that I am dead, okay? (February 14, 2006; 6)

In June 2002, Judge Brinkema acquiesced to the defendant’s request to take over his own defense — a decision she would reverse a year and a half later. At the time, Moussaoui made it clear that he did not want to consult with the court-appointed lawyers, even on a stand-by basis:

I want to put clearly on the record that these people, I will never meet them again, like I told you before, and I will never change my position, okay? My life is at risk, and I will never compromise it. This life is very precious to me. It ’s given by God. And I’m not going to, to play with this. (June 13, 2002; 33)

This was hardly the tone of someone harboring a death-wish.

Indeed, from the moment he was able to move to take control of his defense in April 2002, Moussaoui made clear that all his efforts would be focused on — as he put it in a formal statement laced with Quranic references — “the defense of the life that Allah, the most masterful, has granted to me” (April 22, 2002; 4). Belittling the defense teams’ ostensible concerns about his conditions of confinement, he noted: “I do not want to meet inmates. I do not want to have contact with people outside. I want to study my case. I want to defend my life ” (45). Three years later, during an April 2005 hearing to determine his competency to file a guilty plea, Moussaoui indicated that he had begun to reflect on the best strategy for saving his life even earlier: on September 11, 2001. At the time, Moussaoui was a prisoner in Sherburne County Jail in Minnesota, having been arrested three weeks earlier on an immigration charge. It was there that he watched the news reports of the 9/11 attacks on the prison television. “This issue of death penalty started on 9/11 for me,” Moussaoui explained to the Court. “You see . . . when I was watching part of the events on 9/11 on the screen, I understood potential implication for me, being a member of al Qaeda, just to say the least. You understand? So for me, I understand that I was playing — if I use the word ‘playing’ — for my life . . . .” (April 20, 2005; 16).

Yet again, at the time of his first attempt to plead guilty in July 2002, Moussaoui made unmistakably clear that he wanted to plead guilty precisely in the interest of saving his life — not in order to end it. As laid out before the Court, Moussaoui’s reasoning was that if he truthfully assumed responsibility for his involvement in the “broader” 9/11 plot, a jury would be more inclined to show leniency on sentencing in light of the meagerness of his actual contribution to the attacks. “I want to enter a plea today of guilty,” Moussaoui said,

because this will ensure to save my life. . . . It’s much more complicated than what you want to make people to believe, because even if I plead guilty, I will be able to prove that I have certain knowledge about September 11, and I know exactly who done it. I know which group, who participated, when it was decided. I have many information. . . . But it will ensure me to save my life, because the jury . . . will be able to evaluate how much responsibility I have in this. . . . (July 18, 2002; 26)

“. . . . You know perfectly that there is a guilt phase and there is a penalty phase, okay? ” he continued.

And you know that . . . on both account, the government have to prove that I’m guilty to the extent that they pretend I’m guilty, okay? So now I’m saying that for the guilt phase, I’m guilty. . . . But for the death penalty, we will see.13 (July 18, 2002; 29)

Nevertheless, Brinkema refused to accept Moussaoui’s plea. A month earlier, she had similarly refused to permit him to plead “no contest” — and entered a “not guilty” plea instead. Despite the fact that she had already found him mentally competent to assume responsibility for his defense, she thus cast doubt on the rationality of his actions and fueled speculation about his motives.

Moussaoui responded to the judge’s interference in a series of angry and sarcastic handwritten motions, including one tellingly entitled “PROLIFE Motion to Stipulate my RIGHT AND DUTY TO LIVE ON THIS EARTH A LONG HAPPY LIFE (with four wives) and to stop this Judge misrepresenting my fight for life. ” In his “pro-life motion” — dated June 14, 2002, but presumably written in fact one month later — Moussaoui accused Brinkema of “trying to reinforce prejudice and the stereotype of the fanatical Muslim. Brain wash to kill himself and go to paradise to have 72 pure virgin.” “Leonie Brinkema does not understand anything about Islam or Jihad,” he continued, alluding to the Quranic prohibition on suicide, “or she will have understood that to plead guilt for your execution will bring a Muslim to hellfire (Allah know best). ”14 Taking the stand four years later — and following the adoption by his own defense team of the very theory he had ridiculed in his 2002 “pro-life” motion — Moussaoui explained more calmly and didactically that the Islamic notion of the martyr or shaheed refers specifically to persons who die in battle or, more broadly, in fighting against a designated enemy:

For us a shaheed mean martyr at war. And you do not aim to be a shaheed. You fight, and if you meant to come, you come [if your time has come, your time has come]. You don ’t decide, okay, I’m going to be a shaheed. For a suicide operation, it is only valid when you do this for Allah and also when you couldn ’t do anything else. For example, you couldn’t achieve the result of 9/11 without having suicide operation, so you are a shaheed. (March 27, 2006; 2368)

When he finally was permitted to submit his guilty pleas in April 2005, Moussaoui — who always displayed an acute awareness of the record of the trial that was being created — drew attention to a passage in the transcript of the competency hearing from two days earlier that created the impression that he would be seeking the death penalty. Already in that hearing he had voiced his concerns that if he were not given an opportunity to speak when submitting his pleas, the court-appointed lawyers would attempt to misrepresent his intentions: “I know that these people who are the fools, media, whatever, they are going to attack my competency, okay? And I don ’t want them to have the opportunity to speak on my behalf” (April 20, 2005; 22). Now, he seized the occasion to set the record straight: “I can say . . . to you and to the lawyer and to the public that, no, Moussaoui will fight every inch against the death penalty ” (April 22, 2005; 26). Just as he had anticipated, on trial the defense lawyers would attempt to exploit this single ambiguous passage from the competency hearing — the very same hearing in which he had explained that he was “playing for his life” — in order to suggest that he had been seeking to be put to death all along.

“They have decided to create a theory to put it in the air,” Moussaoui noted disgustedly in April 2002 in moving for the dismissal of his lawyers. “They say, ‘We are going to create a theory, we will make it hang in the air, and the jury will be confused. That ’s how you are going to save your life, Mr. Moussaoui.’ Thank you very much” (April 22, 2002; 23). And, in effect, this is exactly what the defense did by “hanging in the air” or floating the obviously bogus theory that Moussaoui was seeking martyrdom. The defense was evidently prepared to wager that for a sufficiently uninformed jury, the claim might nonetheless prove persuasive.

Indeed, the defense floated numerous “theories” to the jury, some of which were clearly contradictory, but virtually all of which — in a bizarre perversion of the fiduciary relationship that is supposed to exist between lawyer and client — involved the attempt to demean or discredit the defendant. Thus, in his closing statement, MacMahon could all at once present Moussaoui as the master al Qaeda “manipulator” (March 29, 2006; 2788), fiendishly enveloping the jury in an impenetrably complex “plan,” and as a bumbling “grifter” (2791) who was “useless” to al Qaeda (2775) — since, after all, Khalid Sheik Mohammed was supposed to have said so. In questioning flight instructor Clancy Prevost, MacMahon ’s colleague Kenneth Troccoli went so far as to call Moussaoui a “knucklehead” (March 9, 2006; 776): a characterization that was emphatically rejected by the witness. Indeed, virtually all those who had dealings with the defendant were impressed by his obvious intelligence. “Mr. Moussaoui is an extremely intelligent man,” Brinkema noted in finding him competent to plead guilty. “He has actually a better understanding of the legal system than some lawyers I’ve seen in court” (April 22, 2005). And, despite the court’s repeated findings in the matter, the defense attorneys continued to insinuate that their client was simply crazy. On the stand, Moussaoui derided this strategy as “cheap.” “Broadly speaking for the American people anybody who fly a plane into a building is somebody who is . . . crazy, ” he noted dryly (April 13, 2006; 3677).

It is clear that Moussaoui had not only tactical but also principled reasons for preferring a more forthright approach to his defense. If the determination to fight the death penalty is one major thread running through virtually all his statements before the court, the will to do so in speaking truthfully about the 9/11 conspiracy is a second one. Thus, in a July 2002 hearing, he noted:

I want the people to hear what I have to say, what are my responsibility, what I came to the United States for, what I did in the United States, and if 12 people of America find that I have to be put to jail, to be killed for this what I did, but only for what I did, not for what they claim, okay. . . . Only by directly addressing what I did I will be able to receive a fair [trial] — I mean, I will not even use the word — but something remotely fair. . . . That’s why I want to talk to these 12 people, these 12 American, who are my enemy, but sometime you can find honest enemy. Here [in the courtroom] I have dishonest people. Maybe your normal people will be more honest than this Court and this prosecution and this standby lawyer. (July 25, 2002)

Whereas the court-appointed lawyers were proposing to “confuse” the members of the jury and exploit their ignorance, Moussaoui was proposing, in effect, to educate them: to offer them a unique insider ’s view of the 9/11 plot. And this is indeed precisely what he did when he testified on March 27, 2006 and then again on April 13 during the “mitigation” phase of the trial.

On the stand, Moussaoui presented his assurance that he would be able to square the circle by both assuming responsibility in the 9/11 conspiracy and escaping the death penalty as a matter of faith. During the “mitigation” phase testimony, Zerkin attempted to undermine the credibility of his repeated assertion that he was fighting against the death penalty. “Did you think you were fighting against the death penalty when you testified in the first phase to the jury? ” Zerkin asked him excitedly, “Did you think you were fighting then?” “I was putting my trust in God,” Moussaoui responded, “so from an Islamic point of view, yes. I understand that from a non-Islamic point of view, it is contradictory. But somehow we will never understand each other ” (April 13, 2006; 3620). “I know that by testifying truthfully, I will save my life,” he insisted. “It is an act of religion” (3673).

The lessons of the Moussaoui trial

What, then, was the truth to which Zacarias Moussaoui testified in March and April 2006? The first and most basic truth is that Moussaoui was indeed part of the “broader” 9/11 conspiracy, and the 9/11 attacks as conceived by the al Qaeda leadership were supposed to involve five distinct “operations”: the four hijackings that in fact occurred and a fifth hijacking/attack to be led by Moussaoui. In light of the additional information provided by Moussaoui’s testimony — which, in this regard, is consistent with Khalid Sheikh Mohammed’s reported statements — we now know that the five targets selected for attack were the two towers of the World Trade Center, the Pentagon, the Capitol, and the White House, and that the five attacks were supposed to occur on the same day. When Zacarias Moussaoui was arrested on August 16, 2006, he did not know what that day would be. Moussaoui confirmed this on the stand (March 27, 2006; 2313), and it seems likely that the precise date had not yet been determined. Mohammed Atta and the other 9/11 hijackers had not, after all, begun purchasing the tickets for their own 9/11 flights until August 25.15

Why, then, had Moussaoui insisted at his 2005 plea hearing that “his” conspiracy was a “different” conspiracy from that of Atta and the others? As he explained to the court at the time, he had understood that the establishing of such a “difference” could be of significance for the law: If he were part of the “same” plot as the known 9/11 conspirators he could, according to American conspiracy law, be held co-responsible for its consequences no matter how minor his role. Their failure to take account of this consideration was one of the reasons that Moussaoui adduced for believing that his lawyers were abetting the prosecution ’s case (April 22, 2005; 29). There was, moreover, some factual basis for arguing that such a “difference” existed. Virtually all the evidence suggests that Moussaoui’s planned attack on the White House was a kind of “add-on” concocted by the al Qaeda leadership in Afghanistan sometime around the middle of the year 2000. Moussaoui — who says he dreamed of undertaking such an attack and discussed his dream with Bin Laden — may have provided the inspiration. The “basic” plot, on the other hand, had already been conferred upon — and quite possibly devised by — Atta and the other enterprising young German-based extremists of the “Hamburg cell.”

The notion that Moussaoui was preparing for a “second wave” of attacks to occur at a later date is untenable on internal consistency grounds alone.

But the notion that Moussaoui was preparing for a “second wave” of attacks to occur at a later date is untenable on internal consistency grounds alone. Given the heightened air travel security measures that were predictably adopted in response to the 9/11 attacks, a “second wave” of attacks using the same method could hardly have been possible in their immediate aftermath. In any event, by the time he took the stand in March 2006, Moussaoui had clearly resolved to forgo the somewhat metaphysical subtlety involved in arguing that he was part of a “different” plot.

Moussaoui knew Atta and fellow Hamburg cell member and later 9/11 pilot Ziad Jarrah from the al Qaeda camp in Kandahar, Afghanistan, where the plans for the attacks were first mooted by the top al Qaeda brass in consultation with the “German” recruits in late 1999 (2315–16). Moussaoui knew them by their respective noms de guerre “Abdal Rahman” and “Al-Libnani.” He had not been told specifically that they would take part in the “planes operation” against America, but he assumed that they would play a major role — they were “big time,” as he put it — from their repeated meetings with Khalid Sheikh Mohammad (2343). Given the security protocols established for the operation, Moussaoui had no contact with Atta, Jarrah or any of the other hijackers once in the United States. A series of indiscretions committed by Moussaoui in Malaysia in Fall 2000 — including talking about his dream of attacking the White House (2389) — had soured his relationship with Khalid Sheikh Mohammad, and it was only on the insistence of Bin Laden that he was kept in the plot. As consequence, Khalid Sheik Mohammad appears to have taken special pains to insure that Moussaoui would remain isolated from the operatives responsible for the “basic” plot (2364-65>; and see also “9/11 Commission Report,” 247).

A key fact connecting Moussaoui to the other 9/11 conspirators, however, was his receipt by Western Union wire transfers from one “Ahad Sabet” in Germany of over $14,000 at the beginning of August 2001. One of the two phone numbers that Moussaoui had for “Sabet” — with whom he spoke several times — was that of Hamburg cell member Ramzi Bin Al-Shibh. After being repeatedly denied a visa to enter the United States in 2000, Bin Al-Shibh continued to function as a key facilitator of the 9/11 attacks from Germany.

The credibility of Moussaoui’s account of the 9/11 plot is reinforced by the careful attention he gave to sometimes startlingly banal details.

The credibility of Moussaoui’s account of the 9/11 plot is reinforced by the careful attention he gave to sometimes startlingly banal details. Thus, for example, when asked about the August wire transfers, Moussaoui revealed that he had made a miscalculation and that he did not need the money. He refrained, however, from informing Khalid Sheikh Mohammad — or “Mukhtar,” as Moussaoui knew him — about his mistake. This was not, as the prosecution speculated, for security reasons, but rather out of embarrassment. “After a while I realize that I didn’t need the money,” Moussaoui explained. “But I already ask Mukhtar. . . . I already have created a lot of problem when I was in Malaysia with Mukhtar, so I just said don ’t ask money and later say no, I don’t want the money. I know that he was not going to be happy about the story like that ” ( 2354).

In light of the remarkable boom in “alternative” 9/11 conspiracy theorizing and the role of Moussaoui’s own pretrial pleadings in nourishing the thesis of U.S. government foreknowledge of the attacks, a second point that is worth underscoring is that Moussaoui explicitly rejected this thesis on the stand. It is perhaps this fact that explains the surprising indifference to his testimony displayed by the backers of the Cryptome website. For a site specializing in the exposure of government “secrets,” the most terrible “secret” is undoubtedly that the government had no secret to hide. When he returned to the stand on April 13, Moussaoui repeated his earlier characterization of his pleadings as “propaganda,” explaining that they constituted for him a means of “psychological warfare” (3620). Asked about one motion in which he suggested that his apartment had been bugged by the fbi, Moussaoui dismissed it as a “fishing exercise” (3652).

Most significantly, Moussaoui explained that he truly believed following his arrest that the government might have learned that he was al Qaeda and that an attack was being prepared, because there were clues among his possessions that he thought would have tipped off investigators. But what he did not know — and, as he made clear, could not have imagined — is that as a result of the administrative “wall” separating criminal from intelligence investigations at the time, investigators were not able to search his possessions until after the attacks. This he learned from listening to the tragic testimony of fbi agent Harry Samit about his frantic and ultimately failed attempts to obtain first an ordinary criminal search warrant and then a fisa (Foreign Intelligence Surveillance Act) warrant. “I was not aware of . . . all this story about fisa,” Moussaoui explained. “I thought that if they had access to my property, they will have searched it. So I thought . . . they were lying when they pretend they have no information. . . . I thought I could prove that the government was lying. But I was wrong because the government didn ’t have the right at the time to search my property” (3656).

Moussaoui’s simple, straightforward explanation for the tantalizingly mysterious allusions in his pretrial statements might have helped to forestall the development of a 9/11 “Truther” movement that has in the meanwhile taken on the dimensions of a collective psychosis. But with the major media apparently uninterested and the broader public shut out from the proceedings by the broadcast ban, his testimony on the matter has hitherto passed almost wholly unperceived.

The warfare model

But the most fundamental lesson to be learned from Moussaoui’s testimony is one that ought to have been perfectly obvious even without it: The 9/11 attacks were precisely attacks. They were not banal crimes actuated by banal criminal motives, as the trying of Moussaoui before an ordinary civilian jurisdiction would suggest. They were acts of war undertaken with the express purpose of inflicting damage upon a designated enemy: the United States.

Moussaoui laid out numerous particular grounds for accusing the court-appointed defense lawyers of what he styled “criminal non-assistance” (April 13, 2006; 3602), but the fundamental fact of his being at war with the United States was, as he made unmistakably clear, the single overriding reason for his refusing their representation. “What on earth is the problem for the jurors to know that this defense doesn’t belong to me?” he exclaimed, in defending his attempts to alert them to this fact during jury selection. “You own everything. You are America — the defense, the judge, the attackers. These people are American. I’m al Qaeda. I’m a sworn enemy of you. You, you, you, you, for me you are enemy” (February 14, 2006; 6). Apparently hoping to convince the jury that his client was delusional, Zerkin repeatedly asked Moussaoui whether he thought that Zerkin himself and the other defense lawyers were part of a “conspiracy” to kill him. “In a broad sense, yes,” Moussaoui responded during his March testimony, “because you are American, and I consider every American to be my enemy, so for me any American is meant to want my death because I want their death ” ( 2377–78). When Zerkin attempted to press the point, asking whether the judge and jury were also part of the “conspiracy,” Moussaoui interrupted him and insisted that he did not mean to refer to a conspiracy in the literal legal sense in which he himself had been charged. “When I refer to your conspiracy,” he explained, “it refer to you being an American . . . so, therefore, people like me are your enemy. I ’m an enemy combatant. So, in the broad sense, you are a part of this nation, so I assume that you are an enemy to me ” ( 2379). “I want to kill American people,” Moussaoui noted matter-of-factly when he took the stand again on April 13. “I believe that every American want to kill me, somehow. . . . You don’t like people like me out in the street. You can’t say that. You don’t want somebody like me out in the street. You want me either in jail or dead” (3654).

Anyone reading Moussaoui’s testimony — especially the transcript of his second appearance on the stand — could hardly doubt the wisdom of this assessment. His second appearance came on the heels of several days of emotional testimony by survivors of the 9/11 attacks and family members of victims. Asked by Zerkin whether he felt any regret for the suffering the attacks had caused them, Moussaoui answered “not whatsoever” and bluntly stated “we done it for this”:

We wanted to inflict pain on your country. . . . I’m glad they have received pain, I’m glad their family are suffering pain, and I wish there would be more pain, because I already can forecast, after tomorrow, next week, the week after, the children of Palestine will be in pain. The children of Chechnya will be in pain. . . . I want you to share in the pain. (3664–65)

Asked by prosecutor Robert Spencer on cross-examination whether he remained prepared to kill Americans even in prison, Moussaoui answered “any time, anywhere” (3689). “No regret, no remorse, right, Mr. Moussaoui?” Spencer asked, alluding to his earlier reply to Zerkin. “No regret, no remorse,” Moussaoui confirmed. “Like it all to happen again, right?” Spencer asked. “Every day until we get here to you,” Moussaoui replied (3693). Having explained that according to chapter 9, verse 29 of the Quran, Muslims, as he put it, “have the obligation to be the super power” (3657) and hence to “subdue” the United States, Moussaoui also managed to invoke what the consequences for Americans would be if this goal was ever reached. “For the . . . American Jewish, we will exterminate them,” he specified. “For the Christian, it is different. . . . We have a way to accommodate them if they don ’t fight us” (3661).

Although Moussaoui was unquestionably a part of the “broader” 9/11 plot, there is no evidence of his having made any material contribution to the attacks that occurred. His only contribution was negative. All that he did — and all that prosecutors accused him of doing — was to lie to fbi investigators about his activities in order to protect the plot from being exposed. Not having had the benefit of the obvious organizational skills of Mohammed Atta, moreover, his own operation was so ill-prepared that there is serious reason to doubt that it would have come off even if he had not been arrested. There is even some evidence that Moussaoui himself doubted that it would happen. (He is known, for instance, in early 2001 to have asked an Oklahoma City Imam for help in finding a wife.) It is likely this fleeting, intangible quality of Moussaoui ’s role — and not the tricks of the defense lawyers — that finally convinced at least one juror to refuse the death penalty. Indeed, under ordinary circumstances — and if Moussaoui had not himself foreclosed the option by pleading guilty — acquittal ought to have been a real possibility.

As Moussaoui explained, the preparedness to die in service to one’s “emir” is the essence of the oath of allegiance al Qaeda members have sworn to bin Laden.

But as Moussaoui’s own words underscore — “I want to kill American people. . . . You don’t want somebody like me out in the street” — even if innocent of specific charges, how could such a man be set free? A further derivative lesson of his testimony is thus the inappropriateness of a civilian jurisdiction for handling cases like that of Moussaoui. As far as al Qaeda and al Qaeda members are concerned, the 9/11 attacks were merely one “operation” in a broader and longer war on America that is ongoing. “It is a long way before we reach [get] you,” Moussaoui predicted, “but we will reach you” (3688). Yet even as al Qaeda remains at war with the United States, a large part of the American political and media elite — to say nothing of their European counterparts — appear dedicated to preventing the United States from being at war with al Qaeda and taking effective action in its defense.

Criminal prosecution of al Qaeda leaders or operatives before civilian jurisdictions is clearly not effective action in this connection. Al Qaeda members are sworn to fight against America literally to the death. As Moussaoui explained, the preparedness to die in service to one ’s “emir” is the very meaning of the oath of allegiance or bayat that al Qaeda members have sworn to Osama bin Laden. It is, he said, a “death allegiance” (3672). Criminal prosecutions, even on death penalty charges, can have no dissuasive impact in this context. Especially if they are to be conducted according to the normal due process safeguards of American law, moreover, such trials involve major national security risks, the most obvious being that sworn enemies of the United States — “enemy combatants,” as Moussaoui called them, willingly assuming the mantle — will go free.

If there is a category of crime under which atrocities like the 9/11 attacks could be meaningfully prosecuted, it is precisely that of war crimes or — per the specification for mass crimes against a civilian population introduced by the Nuremburg Tribunal — “crimes against humanity.” It a curious fact, worthy of sustained reflection in its own right, that virtually none of the normally voluble champions of “international criminal law” have seen fit to accuse Osama Bin Laden or any of his lieutenants of crimes against humanity or to recommend their transfer before an international jurisdiction. But whatever exemplary or other benefit war crimes prosecutions might offer, this benefit, if it is to be sustained, is obviously predicated upon winning the war.

Hearing the threat

I have nothing more to say because you don’t want to hear the truth. It was a waste[d] opportunity for this country to understand and to know why people like me, why people like Mohammed Atta and the rest have so much hatred for you. You don’t want to hear it.

These words, addressed to the Court by Zacarias Moussaoui at his sentencing hearing on May 4, 2006, provide a fitting epitaph to the trial as a whole. It was a wasted opportunity. It was not so much the opportunity to understand why Moussaoui and his fellow jihadists hate America that was wasted. Moussaoui’s lengthy exposition on this question was undoubtedly the weakest and least compelling part of his testimony. Apart from what he called the “theological aspect” — i.e. that Islam has to be the “super power” — the rest amounted to a laundry list of sometimes fanciful grievances that clearly owed more to the well-known jeremiads of the “anti-imperialist” western Left than to specifically Islamic sources. Although Moussaoui insisted that this second aspect derived from his “life experience” ( 3657), symptomatically none of the examples he gave had anything to do with the latter. The wildly exaggerated vision of American global power reflected in his remarks was itself evidently more theological than empirical in nature. How else, after all, can one explain the call to make Americans feel pain as retribution for the pain inflicted on the “children of Chechnya” by Russian troops?16

The opportunity that was wasted at the Moussaoui trial was, above all, the opportunity to know and to understand that the jihadists do hate America and to appreciate the extraordinary lengths to which they are prepared to go to act on this hatred. It appears, indeed, that some Americans do not want to hear this truth: notably, the representatives of the major news organizations who served as the gatekeepers for information on the Moussaoui trial. Ironically enough, no one better exemplifies this sort of politically correct autism with regard to the Islamist threat than Judge Leonie Brinkema. Having ruled at the sentencing hearing that Moussaoui could not use his opportunity to speak in order to make a “political speech,” the judge took the occasion to launch into one herself. “You came here to be a martyr and to die in a great big bang of glory,” she concluded triumphantly, addressing the defendant, “but to paraphrase the poet, T.S. Elliot, instead, you will die with a whimper. The rest of your life you will spend in prison. ” It was as if the judge had learned nothing from the proceedings in her own courtroom over the previous four and a half years — not even the most basic and obvious fact: namely, that Zacarias Moussaoui and the other 9/11 plotters came to America to kill, not to die.

Moussaoui apparently tried to respond to Brinkema’s jibe. The transcript indicates that his response was “inaudible.” It is important that the words of Zacarias Moussaoui become audible to the public. Otherwise, the principled legal “victory” ostentatiously declared by Judge Brinkema might prove to be just a prelude to defeat. “We will come back another day,” Moussaoui warned. There is reason to believe him.

John Rosenthal writes on European politics and transatlantic relations. He is a contributing editor for World Politics Review (www.worldpoliticsreview. com).


Trial Transcript, United States of America v. Zacarias Moussaoui, February 6, 2006.

2 Trial Transcript, United States of America v. Zacarias Moussaoui, March 27, 2006.

3 Hearing on Motions, United States of America v. Zacarias Moussaoui, January 9, 2002.

4 See the Cryptome collection of Moussaoui pre-trial motions at http://cryptome.org/zm/usa-v-zm-moi.htm (accessed November 9, 2007).

5 See the Cryptome collection of Moussaoui trial transcripts at http://cryptome.org/usa-v-zm-dt 2.htm (accessed November 9, 2007).

6 Unless otherwise indicated, date and page references in the text are to the official record of court proceedings in the case of United States of America v. Zacarias Moussaoui.

7 See http://www.cbsnews.com/stories/2006/03/13/terror/main1392573.shtml (accessed November 9, 2007).

8 Abd Samad Moussaoui and Florence Bouquillat, Zacarias Moussaoui, mon frère (Éditions Denoël, 2002, 20. All my citations from Abd Samad’s memoir are translated directly from the French original. A sometimes unreliable English translation was available to the court.

9 According to Abd Samad Moussaoui, his mother ignored Muslim holidays and even took to celebrating Christmas when he and his brother were teenagers. See Zacarias Moussaoui, mon frère, 94. Abd Samad describes his father as likewise “non-practicing,” 76.

10 Although the episode is contained in the English version of Abd Samad’s memoir available to the jury, this key phrase is mistranslated.

11 Statement of Facts, United States of America v. Zacarias Moussaoui, April 22, 2005, paragraph 9.

12 See Moussaoui indictment at http://notablecases.vaed.uscourts.gov/1:01-cr-00455/docs/66826/0.pdf (accessed November 9, 2007).

13 Note that in referring to what the prosecution “pretend[s]” here, Moussaoui slips into speaking a sort of “Franglish.” The French prétendre simply means “to allege” or “to claim.”

14 See Moussaoui motion at http://notablecases.vaed.uscourts.gov/1:01-cr-00455/docs/66846/0.pdf (accessed November 15, 2007).

15 Final Report of the National Commission on Terrorist Attacks Upon the United States (“9/11 Commission Report”), 249.

16 For more on this anti-American theology with reference to Moussaoui’s testimony and jihadism more generally, see the section titled “Fighting the Malevolent Force” in my “The French Path to Jihad,” Policy Review 139 (October/November 2006

John Rosenthal has taught modern European philosophy and political philosophy at schools in the United States and France.

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