Terrorism Prosecution—Federal Strategy

Zacarias Moussaoui did not receive the death penalty in part because jurors “concluded he had little to do with Sept. 11.”^[1] Likewise, nearly 5 years after 9/11, federal prosecutors have secured convictions in only a handful of cases, and most of those are fairly low-level individuals. For example, the recent conviction of Hamid Hayat cannot seriously be said to have substantially wiped out a global threat. And some of the federal government’s higher-profile cases have tended to fall apart. For example, a Detroit “sleeper cell” conviction in 2003 was overturned because prosecutors withheld evidence from the defense, Jose Padilla—who was detained in a brig ostensibly because he was so dangerous—has been charged merely with conspiracy to commit terrorist attacks overseas, and Ali al-Tamimi’s case—in which he was convicted for soliciting treason—has gone back to District Court because there may have been illegal NSA wiretaps on him.

That a fairly obvious hanger-on like Zacarias Moussaoui would be prosecuted and sentenced to life in prison while “two presumed key planners of the Al Qaeda plot, Khalid Shaikh Mohammed and Ramzi Binalshibh,” have yet to be charged with anything, seems to be a fairly large contradiction.^[2] Government officials say, however, that Mr. Mohammed and Mr. Binalshibh have been held in secret for three years because “gathering intelligence from suspected terrorists is more important than publicly punishing them.”^[3] Charging an individual with a crime “would entitle him to a lawyer,” which is why Mr. Padilla was labeled an enemy combatant; “a lawyer undoubtedly would tell him not to talk to government investigators.”^[4]

Mr. Mohammed, for his part, has apparently told investigators about the 9/11 plot “in great detail. … 10 years ago he conceived of the idea of using hijacked airplanes as missile-like weapons, and eventually persuaded Al Qaeda leader Osama bin Laden to fund the plot.”^[5] The original plan called for 10 airplanes, five on each coast, but Osama bin Laden “thought this was too complicated.”^[6] Mr. Binalshibh was chosen to coordinate the operation, and to “serve as [the hijackers’] paymaster.”^[7] Both men were captured in Pakistan, and a statement from Mr. Mohammed was introduced against Mr. Moussaoui during the latter man’s trial, calling him unreliable.^[8]

Because current and former intelligence officials “have said that the CIA has used aggressive interrogation techniques—including ‘waterboarding,’ which makes a suspect feel that he is drowning—on captured Al Qaeda leaders” it will be nearly impossible to try Mssrs. Mohammed and Binalshibh in civilian courts.^[9]

This is because evidence or confessions obtained from torture cannot be used to sustain a conviction. The US Supreme Court “has long held that certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause of the Fourteenth Amendment. … Faced with statements extracted by beatings and other forms of physical and psychological torture, the Court [has] held that confessions procured by means "revolting to the sense of justice" could not be used to secure a conviction. … On numerous subsequent occasions the Court has set aside convictions secured through the admission of an improperly obtained confession.”^[10]

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[1] David G. Savage, No Trials for Key Players, L.A. Times, May 4, 2006.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Miller v. Fenton, 474 U.S. 104, 109 (1985) (internal citation omitted).