The Moussaoui Process
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.