By William Fisher
The trial of Zakarias Moussaoui has all the makings of a soap opera. If Kafka wrote soap operas, that is.
Consider the cast of characters:
A defendant who alternately proclaimed his innocence and boasted of his guilt.
A prosecution that magnified the importance of a bit player in the 9/11 terrorist plot, and put the death penalty on the table despite charging him not with doing anything, but only with conspiring to do something.
A government that claimed that if only Moussaoui had not lied to the FBI, they could have prevented the attacks of 9/11, even though on 9/11 Moussaoui was in a Minnesota jail, while FBI headquarters was minimizing repeated alarms from its Minneapolis field office about Moussaoui's flight training.
A heart-wrenching chorus of survivors of 9/11 victims, unified in their view that the defendant was guilty of committing a crime, but divided about whether to exact retribution by executing him (thus conferring the martyrdom he says he welcomes), or jailing him for life (so that he will have to look in the mirror every morning and hate himself for the terror he wrought). Except that he didn't actually commit any act of terrorism. And, judging from his testimony, if he hated himself for anything it would be for not killing any American infidels.
Psychiatrists who painted the defendant as a paranoid schizophrenic, prompting some of us to label him "crazy" and others to decide he's "crazy as a fox."
A media that slavishly focused on the defendant's bizarre courtroom rantings and portrayed the trial as some kind of 21st century passion play about retribution vs. forgiveness, good vs. evil.
But there remains a major issue this trial has ignored. As lawyer David Cole wrote me, "There is something fundamentally wrong with trying to execute Moussaoui, an admittedly marginal figure who was not himself even involved in the planning of 9/11, when we have detained the mastermind of the attack, and the alleged 20th hijacker, but have brought no charges against them -- and probably never will, because our torture of them effectively immunizes them from prosecution."
The reputed mastermind of 9/11 is, of course, Khalid Shaikh Mohammad, who was arrested by the Pakistani government in a safehouse outside Islamabad in March 2003. President Bush characterized the arrest as "fantastic" evidence of the success of his crusade to bring the perpetrators of 9/11 to "justice", and immediately had Khalid whisked off to an undisclosed location in the custody of undisclosed persons who doubtless interrogated him using undisclosed techniques.
The so-called "20th hijacker" is said to be Mohammad al-Qahtani, who has been held in Guantanamo and is touted by the U.S. military as a major informant.
Moussaoui's trial heard from neither, because evidence obtained through torture would probably still be inadmissible in a U.S. court.
Moussaoui pleaded guilty to all the charges against him, though during the trial he denied that he was part of the 9/11 plan, but rather part of a separate plan to fly a plane into the White House. He signed his guilty plea "the 20th hijacker," implying that he was supposed to be on Flight 93, which had only four terrorists, and which crashed into a field in Pennsylvania. But Zakarias Moussaoui and Mohammad al-Qahtani can't both be the 20th hijacker.
Moreover, information garnered from Khalid Sheikh Muhammad portrays Moussaoui as a bit player, a fringe figure who was never in contact with the 9/11 hijackers.
In fact, on 9/11, Moussaoui was in a Minnesota jail. A month before the 9/11 attacks, Minnesota FBI agent Harry Samit warned his superiors that Moussaoui was dangerous, and that his flight training could be part of a terrorist plot. Samit told the Moussaoui jury he sent Washington about seventy fruitless warning messages about Moussaoui. And the 9/11 Commission concluded that the government had enough information to "join the dots."
So what has truly given this trial its Kafkaesque quality is that it is trial by proxy. It is a surrogate for the trials of those we'll never hear from, like Khalid Shaikh Mohammad and Mohammad al-Qahtani, and those who are still at large, like Osama Bin Laden.
Even among those who oppose capital punishment, it is not difficult to understand why America would want to punish someone for 9/11. But someone does not mean anyone.
If the jury votes to execute Zakarias Moussaoui, it will be elevating this bit player to above-the-marquee prominence, and he will be laughing all the way to Paradise.