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The People vs. Moussaoui and Tucker

Heated reactions to William Tucker's "The War Dance Around Moussaoui."

4.14.06

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LAW SCHOOL 101
Re: William Tucker's The War Dance Around Moussaoui:

If the point of Mr. Tucker's article is finally reached in the last paragraph, to the effect that artificial, perpetrator-friendly criminal procedures are useless against transnational terrorists, it is absolutely correct. If the point is that Moussaoui should escape execution because his silence was constitutionally protected, it could not be more incorrect. The gravamen of the defendant's offense was not silence but the full, knowing, willful participation in a conspiracy to murder thousands of people. The prosecution has exhaustively detailed the conspiracy, Moussaoui's overt acts in furtherance of it, and its lethal purpose and results. As a conspirator he is responsible for all crimes committed in furtherance of the conspiracy, including capital murder. If ever a defendant deserved the ultimate penalty it is Moussaoui.
-- Keith Varni

The issue here is misprision of felony, described by law dictionaries as:

MISPRISION OF FELONY -- Whoever, having knowledge of the actual commission of a felony cognizable by a court of the U.S., conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the U.S. 18 USC.

Misprision of felony, is the like concealment of felony, without giving any degree of maintenance to the felon for if any aid be given him, the party becomes an accessory after the fact.


-- Jameson Campaigne
Ottawa, Illinois

I hate to disagree with Mr. Tucker, but Zacarias Moussaoui is not going to be executed for utilizing his Fifth Amendment rights. He is going to be executed for conspiring with 20 other men to violate the laws of the United States of America. Said violations subsequently led to the deaths of more than 3,000 people in this country. His trial proved that he was not an accessory to these crimes, but was a principal who would have actively participated in these violations of law except for the fact that he was in police custody for unrelated charges.

The following are the charges specified in the original indictment:

Conspiracy to Commit Acts of Terrorism Transcending National Boundaries
(18 U.S.C. § 2332b(a)(2) & (c))
(Count One)

Conspiracy to Commit Aircraft Piracy
(49 U.S.C. § 46502(a)(1)(A) and (a)(2)(B))
(Count Two)

Conspiracy to Destroy Aircraft
(18 U.S.C. § 32(a)(7) & 34)
(Count Three)

Conspiracy to Use Weapons of Mass Destruction
(18 U.S.C. § 2332a(a))
(Count Four)

Conspiracy to Murder United States Employees
(18 U.S.C. § 1114 & 1117)
(Count Five)

Conspiracy to Destroy Property
(18 U.S.C. § 844(f), (i), (n))
(Count Six)


Moussaoui was found guilty on all counts. That is why he faces the death penalty, not for invoking his constitutional right against self-incrimination.
-- Michael Tobias
Ft. Lauderdale, Florida

Regarding "The War Dance Around Moussaoui": Are you out of your bleeping mind? Moussaoui is a non-citizen enemy agent, caught infiltrating the U.S. with destructive intent during constructive wartime, while not in uniform. By all reasonable definitions, he is an enemy agent, a spy and a saboteur. It would have been fully right and proper for him to have already faced a firing squad. There is no doubt in my mind that he deserves the death penalty and frankly, your legal analysis stinks. Here are the facts: Up until 9/11 occurred, Moussaoui was, from the criminal law standpoint, only a conspirator. At any time prior to 9/11, had he revealed what he knew, he would have ceased to be a conspirator and instead would have been an informant. That switch in position would have sufficed to prevent his execution -- though not life in prison, had his information failed to stop 9/11. Suffice it to say, it's simply tough noodles that he put himself in a lose/lose situation. Even so, for you to think that I, as a citizen of U.S., must grant equal rights, to a swine like Moussaoui, that I get myself, is mind-boggling. He is entitled to nothing but what he helped give Americans -- death. And the sooner, the better.
-- "Rex"
Boston, Massachusetts

I disagree that the Fifth Amendment should have any protection for the omission of action by Moussaoui since constitutional rights don't give people a pass on trampling the rights of their neighbors. (I also disagree with both the Miranda decision and the cult of precedence...why should our court system preserve incredibly stupid decisions?)

However, the whole thing could be avoided with regard to terrorism if it were moved outside the criminal justice system. I see (in Moussaoui) an enemy of the United States who entered this country to commit an act of terrorism. I see someone who has no protection under any treaty ratified by the Senate. If a foreign nation lands troops on our beaches, we don't send someone to arrest them and then pass them through the courts. We blow them to bits. In the case of terrorists, I don't think the courts have any business in the matter, beyond possibly determining whether a certain individual is in fact a person engaged in domestic criminal activity or if they are an agent of a foreign organization (this being the fulcrum on which the question of how to handle the individual should be decided). Terrorists should be captured alive whenever possible, interrogated effectively, and then taken out and shot when they have little else to offer by way of timely, relevant information.
-- Mark Stewart
Jacksonville, Florida

It is repellant that a person exercising his constitutional rights can be executed for doing so. But what is even more repellant is that the federal courts have limited the discretion of juries and judges to assess the death penalty and the executive branch to carry it out. Some scum just should be eliminated from the gene pool, period. One appeal, one state habeas corpus petition, and one federal habeas corpus petition should be the end of it. Then, good riddance to the scum.
-- John Gridley

I'm trying to determine if William Tucker is naturally illerate [sic] or did he work hard to become that way. The U.S. Constitution is for the CITIZENS of this great country of which Moussaoui is not a member; the 4th and 5th amendments don't apply to his ilk. The U.S. Constitution clearly doesn't apply to terrorists and prisoners of a declared war (on the jihad side.) Overstaying your allocated visa time is a violation of some law somewhere, local state or U.S. And in William Tucker's own words: "So what was his crime?" You decide. I'm just not sure who is paying William Tucker, foreign interests or terrorists. Oh, and if William Tucker doesn't like the rules in this country, either follow the rules to change them or leave the country. But keep his bile to himself.
-- Phil Howard

Mr. Tucker overlooked one not so fine point. Moussaoui doesn't have any rights under the Fourth and Fifth Amendments. He's not a citizen of the United States and his visa was expired. He was here illegally.

Great stuff, I read the Spectator online every day.
-- T.M. Fitzgerald
Hopkins, Minnesota

Fukuyama, Buckley, and now Tucker are longing for the days when the conservative movement was pure and unimpeded by responsibility. Ah, the good old days when we couldn't win an election for local coroner, but we were principled, by God.

Well, if you idiots have your way we will be facing 50 years of MoveOn, People for the American Way, Pelosi, Reid, Kennedy and more.

The conservative movement will become what it was then, LOSERS. Waiting for the Buckley-Gore Vidal debate on PBS every Saturday....
-- Ron LaCanne
Burlington, Wisconsin

With all due respect to the estimable William Tucker, who offered: "I would suggest we look a little more sensibly at the way we treat police investigation in this country."

I think that, regarding the courtroom choreography in the Moussaoui case, we're actually doing a crime dance, when we should be doing a war dance! Once he was nabbed by the FBI, Mr. Moussaoui should have been tried by a military tribunal and executed as the illegal enemy combatant he is.

The problem is that, at the time he was apprehended, we were still operating under rules set in place by Jamie Gorelick, who established the infamous wall which bears her name -- a wall portrayed as a guard against the misuse of our intelligence agencies, but was actually a clever way of denying the FBI access to foreign intelligence which might implicate members of the previous administration in various instances of corruption...everything from bribery, to what amounted to espionage.

Thus, foreign nationals -- such as Moussaoui, who entered our country illegally with the intent of making war against us -â€" were treated as domestic street criminals, and accorded what I call "4-5-6 niceties," the protections afforded under those three amendments to the Constitution. Had he been treated as his status merits, there wouldn't have been what Mr. Tucker referred to as a "police investigation," with Fourth Amendment exclusions and subsequent evidentiary hearings. The cell would've been busted and, perhaps, those buildings would still be there.
-- David Gonzalez
Wheeling, Illinois

I hate to destroy the author's premise that the 9/11 death penalty trial is about the defendant's invocation of his Fifth Amendment right against self-incrimination, but I will go ahead and do so. This trial is about a conspiracy to murder thousands, in which the defendant, by his own words, was a part. The fact that he was involved in the plot and did nothing to remove himself from the conspiracy -- being in jail, he could not take active part, but by his silence he certainly indicated his continued involvement -- he makes himself liable for the actions of his co-conspirators. They murdered over 3,000 innocents and like the defendant would love to have killed more. He might have saved himself from the needle by indicating any remorse or regret, but quite the opposite. He is a walking embodiment of the evil of al Qaeda and, if any help was needed, another indicator of the fact that our cause is right and proper.
-- Warren Mowry

Mr. Tucker demonstrates eloquently the adage that a little knowledge is a dangerous thing. The premise of his article, that Moussaoui was prosecuted for exercising his Fifth Amendment right against self-incrimination, is an absurd sophomoric analysis of the law and this case. This is akin to Mo Do and Krugman insanity. On what factual basis Mr. Tucker used to come to this abomination of legal analysis is unknown, as he conveniently failed to refer to the indictment against Moussaoui. I have not followed the case that closely, but a five-minute check on the web, (something Mr. Tucker should have done before putting fingers to keyboard) produced the 17-page, six-count indictment in full detail. Moussaoui was charged and convicted of conspiracy to aide the 9/11 hijackers, predicated on facts uncovered, that Moussaoui, prior to 9/11, attended the Pan Am flight school and another one for simulator training for Boeing 747s in Oklahoma and Minnesota; that Moussaoui trained at al Qaeda camps in Afghanistan; that Moussaoui purchased flight deck videos for various Boeing and Airbus jets, in addition to other acts detailed in the indictment.

Given this, how Mr. Tucker produced his exegesis on Miranda is completely incomprehensible. Of the 112 facts set out in the indictment, only paragraph 74 makes a single sentence reference to Moussaoui lying to federal agents on 8/17/01 about his interest in flying. Lying to federal agents while in custody is not a violation of Miranda, if Miranda is waived. Besides, he wasn't even charged with lying to federal agents, let alone convicted. Miranda and Moussaoui aren't remotely related to each other in this case. Moussaoui will not die for lying to government agents. He'll die for his pathology of radical Islamic hatred that killed 3,000 Americans. Good God, with a million lawyers in this country, couldn't TAS find one to write an intelligent story on Moussaoui? Please tell me, Mr. Tucker, that you're not an attorney.
-- A. DiPentima

I think Mr. Tucker is missing something else. Mr. Moussaoui does not have any Fourth or Fifth Amendment rights. He is not a citizen. The Constitution was set up for us citizens. And we keep giving away rights to individuals just because they are currently living here. And this is also a problem. These Muslim terrorists have not rights to our great constitution just because they are currently living here. So please stop giving them rights they do not and should not have.
-- unsigned

Are you suggesting we invalidate the Bill of Rights in order to prosecute criminals now? I don't think you are but your article could be construed as such. The points you mentioned about this person are mainly in hindsight. Moussaoui will be executed not because he exercised his rights but because he was part of the 9/11 attack, even though he was prevented from carrying out his part. Yes, the FBI probably did follow the law a little closer than usual as you seemed to think but there was more than enough probable cause to further the search. The failure was not caused by adherence to the law but by sloppy police work. Under Clinton's administration, people like this guy were treated with kid gloves and that was still in effect when Bush took over. In other words, it was not an adherence to Constitutional law that allowed 9-11 to happen but the namby pamby attitude of the previous administration to suspected terrorists. That is my opinion.
-- Pete Chagnon

This is why wars are fought on the battlefield not in the courtroom. This is why you declare war and conduct the business of war under a different set of rules than you do when dealing with the relatively rare offenses of petty criminals (in general). Courts have no part to play with regard to the conduct of war and enemy combatants. We could not "catch" and put 10,000,000 German and 8,000,000 Japanese soldiers on trial as a means to bring "justice" to the victims of World War II. Even today there aren't enough Democrat trial lawyers to defend them or tax money to pay them just for starters.

Zacarias Moussaoui is an enemy combatant caught in time of war wearing civilian cloths and planning an attack on U.S. soil against mainly civilian targets. Those who point out we weren't at war until after 9/11 are missing the point. They were at war with us in every sense of the word since the first attempt to bring down the Twin Towers in 1994. Legalistic technicalities such as this after haven been attacked several times prior to 9/11 by the group Moussaoui admits to belonging to is the kind of courtroom theatrics that diminish the value of any Justice system. How many times did the Japanese have to attack us before we declared war on Germany, Italy and Japan? The answer is twice. We turned one cheek before December 7, 1941. What Moussaoui is actually guilty of would have got him executed a long time ago by a military court in time of War under existing international law.

What the Moussaoui case demonstrates is the folly of trying to apply our sense of justice to the thugs of a terrorist operation that by definition operates outside the bounds of every civilized nation on the planet. Our Constitution and Bill of Rights exists to protest us from the excesses of a tyrannical government oppressing those that grant it the right to govern over them, not the rights of those actively trying to kill any and all of us by any means possible. Trying to apply courtroom rules to those that by definition, do not respect any of the civilized rules in their conduct toward us is pure folly. If anyone truly thinks people like Zacarias Moussaoui deserve the protections outlined in the Bill of Rights then this nation owes millions of dead German and Japanese uniformed troops a sincere apology for not respecting their right to due process. No more or less.
-- Thom Bateman
Newport News, Virginia

Here is an explanation from Ace of Spades as to why Mr. Tucker is incorrect in saying that Moussaoui is being prosecuted for asserting his Fifth Amendment rights.
-- Craig Caughman
San Jose, California

Not to be too simplistic, Mr. Tucker, but the tool to your problem is RICO.
-- John McGinnis
Arlington, Texas

Editor's note:
On his show yesterday, Rush Limbaugh read from and William Tucker's Thursday column. (At RushLimbaugh.com, see the entry, "You Can't Fight Terrorists in Court: It Wasn't Moussaoui's Job to Tell Us About 9/11; It Was the FBI and CIA's Job to Find Out.") Here's how he began the discussion:

You know, there's an interesting piece, Bill Tucker, William Tucker has a piece in the American Spectator today that says, (paraphrasing) "I don't like what we're doing here in this Moussaoui trial. We're basically going to try to put this guy to death because he advanced his Fifth Amendment argument in not to self-incriminate himself." I've made this point on this program. I couldn't believe it, by the way, when the government made this charge just in the strict sense of things. Moussaoui is actually on trial because he didn't tell anybody that 9/11 was going to happen.

Now, take Moussaoui out of it. This is a pure domestic case, if it was, any kind of crime, you're not obligated to tell anybody you've committed a crime. That has to be proven. And you cannot be punished for not telling somebody you committed a crime. You can be punished if you lie about it, but he didn't tell them, and they didn't ask him specifically. Well, now, forget this is terrorism -- it points out why you can't try these guys. It points out why it's a lousy thing to do to bring terrorists and acts of war into the courtroom.


Rush has a lot more to say in response to the Tucker column, including this: "So, you know, the ... guy is on trial because he didn't tell us what he and his buddies had planned. I just find it amazing." So does Bill Tucker.

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