The Moussaoui Process

by David Zaring

Hi, everybody. I’m no comparativist, but Zacarias Moussaoui is in the news, and I wonder if we can learn anything about the wise criminal prosecution of our enemies by comparing them to domestic criminal defendants. When I think about the Moussaoui trial, I think circus, not least because of the tenuous claims of the prosecution trying to portray the deluded guy as some sort of but-for cause of 9/11, but also because of the way he defended the case. He, and a number of other recent high-profile criminal defendants accused of international delicts, essentially tried to shout the process down – for years.

This almost never happens in domestic law. Doomed defendants accused of the most socially transgressive acts tend to sit quietly in the courtroom while their cases are processed and their punishment is meted out. And in civil litigation, even the most obstreperous of deposees tend to quiet down after you let them yell at you for the first hour.

So why are terrorists and other defendants accused of international crimes able to sustain courtroom rants that last for months?

I suspect that the answer lies in the combination in these sorts of courtroom drama of high levels of process and low levels of normative cooption. I doubt Moussaoui dreamed that he would be present for every day of a multi-year long trial pursuant to the FRCrimP if his fantasies of terrorist glory were dashed. And I doubt that he, or any of the other international criminal defendants, feel much normative pull to play along in venues with which they are unfamiliar, where they’re afforded ceremony and process they’ve never before seen.

I guess I’m offering a constructivist gloss on the Moussaoui case and its ilk. Constructivism is often thought of as a very plausible, very unprovable way to think about international law and international relations. In cases like Moussaoui, constructed expectations that might discipline defendants simply don’t exist. And they must exist for these cases to become orderly exercises in adjudication. So while the judge in the case thinks that the process led to “an appropriate and fair ending”, I only celebrate the result of the trial, and wonder how to better institutionalize the norms required to make the judicial process a more successful and just-seeming one.

7 Responses

  1. While I think it’s true that ‘constructed expectations that might discipline defendants simply don’t exist,’ doesn’t the presiding judge have some sort of discretionary control over courtroom behavior (i.e., ceremony and process)? And how much of our perception of what went on in the courtroom is an artifact of mass media reporting? I wonder if there is, in fact, anything that can be done in cases where a defendant is hell-bent on appropriating whatever public space is available to her as a forum for expression of political beliefs and postures she adamantly believes have yet to be accorded a fair hearing. And I happen to think that it is to some extent true that we have not carefully listened to what bin Laden and his minions have been saying (for compelling evidence of this claim, please see Charles Glass’ review essay, ‘Cyber-Jihad,’ in the London Review of Books, 9 March 2006, Vol. 28, No. 5). And of course carefully listening here does not entail any sort of endorsement of or agreement with what is being uttered. Finally, precisely what norms would you seek to institutionalize?

    But what interests me more is a topic for another blog, namely, The United States Penitentiary Administrative Maximum Facility (ADX) in Florence, Colorado (modeled on the maximum security prison at Marion, Illinois). It is not that I have any particular sympathy for Zacarias Moussaoui. But if there is an instance in which imprisonment amounts to a violation of the Eighth Amendment’s prohibition against ‘cruel and unusual punishment,’ this would seem to be it (using the ‘totality of conditions’ or ‘…of circumstances’ test). If Moussaoui isn’t mad now, he soon will be. The judge appeared to be hinting at this in her parting comments to him (I’m assuming she knows something about day-to-day life in ADX Florence).

  2. Re: the possible Eighth Amendment violation, I suppose I should at the very least cite Hutto v. Finney, 437 U.S. 678 (1978), in which the Court held that ‘confinement in a prison…is a form of punishment subject to scrutiny under the Eighth Amendment standards.’

    More recently and pressing, the following illustrates that perhaps what I thought was only appropriate for another blog, is in fact relevant to Opinio Juris readers:

    USA AI Index: AMR 51/061/2006 3 May 2006


    ‘This briefing includes further information on the implementation by the United States of America (USA) of its obligations under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention; UN Convention against Torture), with regard to the forthcoming consideration by the UN Committee Against Torture (the Committee) of the USA’s second periodic report.(1) The briefing updates Amnesty International’s concerns with regard to US “war on terror” detention, interrogation and related policies, as outlined in its preliminary briefing of August 2005, and provides additional information on domestic policies and practice.’

    I quote from Section 10 of the briefing:

    10. Long term isolation in super-maximum security confinement.

    Thousands of prisoners, many of them mentally ill, continue to be held in long-term isolation in “super-maximum security” facilities, sometimes referred to as Security Housing Units (SHU Units) or Extended Control Units (ECU).(121) At least 30 states and the federal government operate more than 50 such facilities which include entire prisons or units within prisons. As noted above, the US has also constructed similar facilities to house “war on terror” detainees held outside the USA, for example, Camp V in Guantánamo.

    While prison authorities have always been able to segregate prisoners who are a danger to themselves or others, or to impose fixed terms of segregation as a penalty for disciplinary offences, super-maximum security facilities differ in that they are designed to house large numbers of prisoners in long-term, or even indefinite, isolation as an administrative control measure. Prisoners in the most restrictive units are typically confined for 23-24 hours a day in small, sometimes windowless, solitary cells with solid doors, with no work, training or other programs(122); their out-of-cell time is limited to no more than 3-5 hours a week. The facilities are designed to minimize contact between staff and inmates and prisoners are often subjected to regimes of extreme social isolation and reduced sensory stimulation. The length of time inmates are assigned to such facilities varies, but many spend years, and some their whole sentence, in such units. Many units continue to breach specific standards under the UN Standard Minimum Rules for the treatment of Prisoners: for example standards specifying the need for windows, natural light, fresh air and daily outdoor exercise.

    Studies have shown that prolonged isolation in conditions of reduced sensory stimulation can cause severe physical and psychological damage. However, mentally ill or disturbed prisoners continue to be held in super-maximum facilities in some states, without adequate treatment or monitoring. In a few jurisdictions, as a result of litigation brought on behalf of prisoners, courts have ordered changes to conditions in super-maximum security units, for example, the removal of the severely mentally ill. However, such rulings are confined only to the specific jurisdiction where the litigation has taken place, and there have been only a few such court decisions. No court to date has found that long-term super-maximum security confinement per se violates the US Constitution. In general, US courts have given broad leeway to states to impose harsh conditions of segregated custody on security grounds.

    In some states, children under 18 are placed in super-maximum security units, in violation of international standards. Youthful offenders in general tend to be more unruly than older inmates and may be frequently punished with isolation when in adult prisons. A joint report published by AI and Human Rights Watch in September 2005 described how child-offenders serving life without parole were often placed in long-term isolation as punishment for disruptive or disturbed behaviour. In Colorado, 13 out of 24 child offenders contacted for the report had spent time in Colorado’s super-maximum prison.(123)

    Some prisoners held on terrorism-related charges in the federal system have been held in prolonged isolation in punitive conditions while awaiting trial. For example, AI raised concern with the US government that the pre-trial conditions of Dr Sami Al-Arian (held on charges of alleged support for Palestinian Islamic Jihad), which included isolation, inadequate exercise and heavy shackling during visits with his attorney, were unnecessarily punitive and inhumane.(124) AI has also reported on cruel, inhuman and degrading conditions under which detainees arrested after 11 September 2001 were held in the Security Housing Unit of the Metropolitan Detention Center in New York, where they were held in prolonged solitary confinement, with 24 hour lighting in their cells and inadequate exercise.(125) [emphasis added]

  3. Cf.:


    VOLUME 4, ISSUE 1: FALL 2002

    Comment: Technology and the Eighth Amendment: The

    Problem of Supermax Prisons

    Charles A. Pettigrew

    Cite as: 4 N.C. J.L. &Tech. 191 (2002)

    Also, over at Concurring Opinions, Dan Filler has a post: ‘Taking Supermax Seriously,’ 19 January 2006.

    Finally (no foolin’), I’ve decided to add the following to my ‘to be read’ list:

    Elsner, Alan. Gates of Injustice: The Crisis in America’s Prisons. (2006).

    Herivel, Tara and Paul Wright, eds. Prison Nation: The Warehousing of America’s Poor. (2003).

    Irwin, John. The Warehouse Prison: Disposal of the New Dangerous Class. (2004). [only author here I’ve previously read]

    Rhodes, Lorna A. Total Confinement: Madness and Reason in the Maximum Security Prison. (2004).

  4. I know there has been some C&U litigation over supermaxes, but I don’t know how it was resolved. My sense is that people think very highly of Judge Brinkema – I’ve heard nothing but good things about her, and when I saw her in action, she was all business. I think all of these judges face difficulties with defendants who simply can’t believe that the process they’re getting is appropriate.

  5. I think you’re cherry-picking your analysis a bit, David by focusing merely on international crimes. I think when you look at highly political, sensitive, well-covered trials where the message of the defendants can be amplified by that trial, you’re going to have defendants who will use it as a license to be obstreperous. For example, the Chicago Seven trial was a circus and it relied completely on domestic law. Is the cause really criminal procedure or a is the cause a by-product of having a trial in public?

    I’d also think you’d need a bigger sample size than just Zacarias Moussaoui (and Milosevic and Hussein by implication) for your examples. Though Ramzi Yousef made some “boastful” comments about his terrorist activites at his trial, I can’t remember it being such a circus as this one. But that was a long time ago. Perhaps I’m wrong.

  6. And by way of historical backdrop and perspective, cf. Sadakat Kadri’s The Trial: A History, from Socrates to O.J. Simpson (2005), especially the concluding reflections:

    ‘And yet to judge trials in terms of their efficiency makes not much more sense than it would to assess a wedding or a funeral by its accuracy. Prosecutions have been pursuing goals more intangible than efficiency since the days when Athenians convened to dispel the miasma of a murderer and Europe’s advocates debated the rights of caterpillars and corpses. Exploitable though the spectacle has always been, it possesses qualities that no system of negotiated pleas will ever rival, no matter how cheap and no matter how fair. For each time a defendant comes to court and contests his or her guilt, a process unfolds that reiterates precepts that are central to the self-image of modern democracy. It asserts that individuals bear the burden of their sins, and that a community can always outlast the sinners in its midst. It portrays a state that is sufficiently self-controlled to prevent public officials from unilaterally deciding anyone’s fate, and humble enough to trust its citizens to watch the law in action–even, sometimes, to do justice themselves. Perhaps most potent of all, the criminal trial literally enacts the meaning of human dignity, showing a civilization that treats its most despicable enemies with respect–presuming them innocent, confronting them as equals, and giving them a champion to argue their cause.’


  7. No question that the sample is inadequately small. I suppose in addition to Yusef, we might also want to look at the other domestic terrorist prosecutions of non-American citizens, and there’s one going on in Brooklyn right now – though many of these people had been in America for some time. But I still posit, without having done the research, that the proportion of procedural shouting matches in these kinds of cases are high.

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