I hate to spoil the fun, but I really don’t see the point of the
courtroom ritual being conducted right now around the 20th
hijacker, Zacarias Moussaoui.
Moussaoui is facing the death penalty for his role in Sept. 11.
What was his role? He was the only hijacker that didn’t make it. He
was picked up by the FBI in Minneapolis in August 2001 for an
expired visa after arousing the suspicions of flight instructors
because he wanted to learn how to fly a jet airliner without
worrying about taking off or landing it.
So what was his crime? Moussaoui is charged with being
responsible for Sept. 11 because he didn’t tell anybody it was
going to happen. His silence led to the murder of 3,000 people, is
the prosecution argument. If he had told the FBI, the World Trade
Center and the Pentagon wouldn’t have happened.
Maybe so, but that’s not the point. The point is, why didn’t
anybody ask him? The answer is simple. Moussaoui was under no
obligation to tell anybody anything. Once he was arrested, he was
protected by his Fifth Amendment rights, which say: “nor shall
[anyone] be compelled in any criminal case to be a witness against
himself.”
Ah, but that’s not the same thing, you may respond. He wasn’t
being asked to testify against himself in court. He was only
talking to the FBI.
Sorry, makes no difference. The U.S. Supreme Court decided in
Miranda v. Arizona (1966) that suspects in a criminal case
are under no obligation to talk to the police about anything. “You
have the right to remain silent,” as the saying goes. You don’t
even have to give them your name. You get to make one phone call to
your lawyer. He will tell you to shut your mouth.
Essentially, the prosecution wants to execute Moussaoui for
exercising his Fifth Amendment rights.
But that’s not the half of it. Once Moussaoui was in custody,
police might have uncovered the plot by going through his personal
effects. He had a home computer filled with e-mails to other Sept.
11 conspirators, talking about various details that showed
something was up. Why didn’t we act on that?
Because we know all this only in retrospect. When Moussaoui was
arrested, FBI officials in Minneapolis were forbidden by Washington
even to look inside his computer because there was no probable
cause he was going to commit a crime.
Time magazine gave its “Person of the Year” award to
FBI’s Minneapolis bureau chief Coleen Rowley in 2002 because she
wrote a memo eight months after Sept. 11 berating FBI headquarters
for not issuing the warrant. Sept. 11 could have been
prevented.
Time loved this story because it pitted a perky female
whistleblower against the stodgy old bureaucrats in Washington. The
only problem is, the stodgy old bureaucrats in Washington were
simply following constitutional law as laid down in countless court
cases since Mapp v. Ohio (1961). The law says police are
not allowed to search anyone’s premises or belongings “without a
warrant, issued on probable cause…and particularly describing the
persons or thing to be seized.”
Every criminal trial in this country now begins with an
“evidentiary hearing” in which the defense lawyers try to get
physical evidence — corpses, bloody knives, guns that fired the
fatal bullet — excluded from the trial because the police had no
probable cause to look for it in the first place. As Washington
told Minneapolis, “All you’ve got out there is a guy with an
expired visa taking flight lessons. Where’s the crime?”
So Moussaoui may be executed for exercising his Fourth and Fifth
Amendment rights.
What this suggests is that we’ve got to start being a little
more sensible about criminal investigations in this country. We’ve
gotten away with things so far because we’re only dealing with
domestic crime. So a few murderers and rapists and arsonists get
away with things on technicalities — what’s the difference?
They’re not going to come live in my neighborhood. The important
thing is that we protect criminal rights. The rights of criminals
are the rights of all Americans, blah, blah, blah.
But we’re not just dealing with domestic crime anymore. We’re
dealing with an international organization that acts
conspiratorially and can cause harm to huge of numbers of people.
Instead of taking out all our revenge on one individual, I would
suggest we look a little more sensibly at the way we treat police
investigation in this country.
