The Nine Lives of the Twentieth Highjacker

Before I get to the stunning Moussaoui developments, let’s take a moment to point out the fecklessness of the Democratic Party, as done brilliantly here by the perennially succinct Elton Beard… Yes, yes, Russ Feingold is himself running for President… but the man has some cojones. A censure for the President’s brazen commission of crimes and affronts to our constitution, including but not limited to, to wit, the deliberate and wanton violation of the Foreign Intelligence Surveillance Act which the senate Republican majority has made it clear they couldn’t care less about (while Arab-bashing over the ports issue remains in fashion) may be the only expression of outrage the President gets. But… will his fellow Democrats give him any cover at all? Even the spouse of the last President against whom Congress considered a censure resolution, herself a senator now? Don’t bet on it…
And now, on with the soap opera… it seems that the trial of Zaccarias Moussaoui, once called “the twetieth highjacker” and now just called “that Arab guy the President wants to see executed– not Saddam– the other one…” has taken yet another bizarre turn. Specifically, Judge Leonie Brinkema of the federal district court in Alexandria, Virginia stopped the trial, now in its death penalty phase, because federal prosecutors told her that the government’s witnesses were tampered with… prepared by allowing them to read other witness statements and the government’s opening statements in express and direect violation of Judge Brinkema’s order not to do so. Typically, witnesses can be excluded during the testimony of other witnesses during a trial (and in my own legal practice, I often ask for the exclusion of such witnesses); in this case, Judge Brinkema also limited what those witnesses could see and hear prior to their testimony to include transcripts of the court proceedings.
It’s unclear what Judge Brinkema will do next. She has previously ruled that the death penalty was off the table in this case for government misconduct, and was promptly reversed by the Fourth Circuit Court of Appeals in Richmond, sending the case right back to her. This particular action leads to pretty much two options as I see it: either pick a new jury and start the penalty phase over, or, since the government’s witnesses have already been tampered with, just take the death penalty off the table, period as a sanction for the government’s inability to follow the rules of her court.
Since Moussaoui pleaded guilty presumably based on the strength of the testimony of other witnesses, it may well be that if the trial phase witnesses were also improperly coached, there may be a basis to reopen the guilt or innocence phase of the trial itself. I don’t know. This trial has been a circus from the get-go.
And it highlights the absurd arbitrariness of our approach to the legal process in the “war on terror”. Moussaoui and Lindh get tried; Padilla gets brigged; the Gitmo detainees get warehoused… and abused; the Abu Ghraib and elsewhere in Iraq, Bagram, Diego Garcia and CIA Black Prison detainees get… forgotten… and God knows what else.
A government not of men, but of laws. It would be nice for a change.
Update: Judge Brinkema, after a bizarre hearing at which an FAA lawyer testified briefly, decided to preclude the government from calling the witnesses that yon FAA attorney had tampered with, ostensibly scuttling the government’s case that but for Moussaoui’s purported misstatements unter interrogation, the 9-11 plot would have been thwarted… Brinkema called it the most bizarre trial she had encountered or was aware of…