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More than a few observers think accused terrorist conspirator Zacarias Moussaoui is crazy as a loon. The attorneys appointed to represent him say he’s mentally ill, while the government’s position is that Moussaoui merely has a strong, if sometimes strange, personality. What is indisputable is that Moussaoui is the first criminal defendant to announce in open court that he is firing his lawyers and praying for the destruction of the United States, as he did in an impassioned tirade on April 22. Through those simple declarations, Moussaoui set into motion a series of events that ultimately forced the U.S. government to rethink its approach to bringing alleged terrorists to justice. If it all weren’t so deadly serious, it would be a theater of the absurd. Just one year ago, the government trumpeted its decision to prosecute Moussaoui in federal court as a lesson to the world in the efficacy and fairness of the American criminal justice system. But Moussaoui’s decision to fire his lawyers and represent himself — as is his right under the U.S. Constitution — turned that plan on its head. Rather than show the world how the United States can prosecute terrorists, the Moussaoui saga has unfolded as a case study in how difficult it can be for the government to use the criminal justice system to try alleged terrorists while also waging a global war against terrorism. The government has successfully tried al Qaeda terrorists before: Sheik Omar Abdel Rahman, who was behind the 1993 attack on the World Trade Center, as well as the four men convicted last year of blowing up U.S. embassies in Tanzania and Kenya, to name a few. But none of those defendants decided to fire their lawyers and go it alone. The system can operate smoothly when lawyers steer the cases. Classified information too sensitive to be revealed to the defendants can be shown to their attorneys under certain procedures. And the people filing the pleadings and doing the talking are officers of the court. There is no such buffer in the Moussaoui case. His insistence on representing himself has rewritten the roles of every player in his legal proceedings. His team of standby attorneys, led by Federal Public Defender Frank Dunham Jr., labor for a man who won’t speak to them while knowing that their work may be for naught. The prosecutors must respond to demands for evidence from both Moussaoui and his standby attorneys, while also heeding the directives from Main Justice in this politically important case. And the judge presiding over it all, U.S. District Judge Leonie Brinkema of the Eastern District of Virginia, the only one who can tell Moussaoui what to do, is trying to protect the integrity of a criminal justice system facing a proceeding unlike any in its history. In other prosecutions involving sensitive and classified information, such as espionage cases, the defendant typically cuts a deal in which the death penalty or other harsh penalty is taken off the table, in exchange for information the government desperately wants. Moussaoui may have such information, but neither party has shown an interest in cutting a deal. And his insistence on representing himself has found the government in the position of having to hand over exculpatory information to him while Moussaoui has the right to remain mum about anything and everything he knows about al Qaeda — its plans, its people, its methods. And so, from the confines of what he calls his “Arabian Cave” in the Alexandria jail, Moussaoui works on defending himself against death penalty charges that he conspired in the Sept. 11, 2001, attacks that killed more than 3,000 people and propelled the United States into the vortex of a borderless and seemingly interminable war. He has bombarded the court with reams of vitriolic filings that sometimes are merely rants thinly disguised as legal pleadings in which he compares the judge to Nazi officials on one page and makes anti-Semitic comments about his standby lawyers on the next. Outside of the Moussaoui circle, critics of the administration’s approach to dealing with terrorists on U.S. soil agree that Moussaoui is a bad test case, but they posit that the reason is not the defendant’s al Qaeda allegiance but his mental health. The public has not heard from Moussaoui in a while. Judge Brinkema hasn’t unsealed any of his pleadings since late October because, as she wrote in one order, they are “replete with inappropriate and inflammatory rhetoric,” and sometimes concern sensitive information about evidence and witnesses. And now the case has come to a point from which it may not recover. Moussaoui wants access to key witness Ramzi Binalshibh, an alleged mastermind of the attacks currently in U.S. custody. Not surprisingly, the government is loath to allow this exchange. Before Judge Brinkema is the question of whether the government must allow Moussaoui to question such an important witness. If the answer is yes, the government must then decide whether it can afford, in the interest of national security, to go on with the case. The answer might be no. Of course, the government can always transfer Moussaoui to a military tribunal to face trial. The life-or-death stakes would be the same for Moussaoui, but the government would be able to try him free from the constraints of long-established judicial procedure, and off the world stage.

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