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.
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