Category Archives: criminal justice

I Swear

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The Westchester County (New York) Courthouse was built in 1973. When the Dumbest Trial of the Century ended I googled for this information. I had guessed the courtrooms, at least, dated from the 1960s or 1970s. The courtrooms are all in blond wood — cold, blocky, and graceless — and back then when people talked about “modern” decor there was nearly always blond wood involved.

In the front of the “dumbest trial” courtroom, high on the wall above the judges’ chair, the words IN GOD WE TRUST were carved in capital letters in the blond wood. And a Bible was kept on the witness stand for the swearing-in of witnesses. All the witnesses were asked by the clerk to put their left hands on the Bible and raise their right hands. (These directions confounded some of the witnesses, who needed reminding which hand was which. That was often the best part of their testimony.)

I realize that to many citizens religion is a primitive and irrational cult. And, of course, lots of religion is a primitive and irrational cult. The inscription didn’t bother me, but if I’d had anything to say about it I would have chosen something else out of consideration for non-believing citizens. Maybe “Justice is the set and constant purpose which gives every man his due” (Cicero) or “Justice in the life and conduct of the State is possible only as first it resides in the hearts and souls of the citizens” (unknown) or, my favorite, “The law isn’t justice. It’s a very imperfect mechanism. If you press exactly the right buttons and are also lucky, justice may show up in the answer. A mechanism is all the law was ever intended to be” (Raymond Chandler). Hey, it’s a big wall. But then, I would have stipulated oak paneling and furniture in a Mission or Shaker style, with bright red and blue cushions and carpeting. That courtroom was just too … beige.

But the swearing on a Bible thing concerns me a little. I don’t know if all judges still expect people to swear on Bibles, but the “dumbest trial” judge, apparently, did. I wonder what happens if a witness doesn’t want to swear on a Bible? This might be OK with the judge, but wouldn’t it be prejudicial to some jurors?

As far as church-state issues go, this one hardly belongs at the top of the list. I’d like to hear other opinions, though.

Free at Last

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The Dumbest Trial of the Century has been discharged with a hung jury. Now that I’m free to talk about it, I’m going to vent.

First off, this was a bleeping marijuana possession case. The People contended that a substantial quantity of marijuana that had been found near, not in, the defendant’s apartment had been in the possession of the defendant. The People’s case had holes you could drive a truck through. The detective on whose uncorroborated testimony the prosecution’s entire case was based was caught in several, um, inconsistencies while he was on the witness stand.

Deliberations began yesterday morning. Just over an hour into the deliberations we took a vote — 11 not guilty, 1 guilty.

You can probably guess the rest. The one holdout wouldn’t budge, even though (after two full days of attempting to “deliberate”) he was unable to explain why he was certain the defendant was guilty. The fellow changed his “reasoning” several times over the past two days, but not his guilty verdict. Finally his “reasoning” devolved into guilt by association — drugs were found near (not in, remember) the defendant’s apartment. A Yonkers detective said the drugs belonged to the defendant. Therefore, the defendant was guilty.

And yes, the juror was an elderly white man, and the defendant was black (as was the prevaricating detective). Do I think racism was a factor? Hell, yes. But I suspect stupid was a factor, also — the juror lacked the mental capacity to understand abstract concepts like “burden of proof” or even “evidence.”

I was the jury forepersonlady, so the composition and rhetoric of notes sent to the judge were under my purview. I became so rattled I could barely crank out cohesive sentences, and I guess my last note (of about 4:50 pm today) was unhinged enough the judge took pity on us and declared a hung jury.

And here’s the kicker — as a clump of us jurors hustled out of the courthouse, we encountered the defense attorney. And he guessed without being told which juror was the problem. Apparently his client, the defendant, had been the one to insist that man be seated on the jury over the attorney’s advise otherwise. The defendant had a “feeling” about the juror, the attorney said.

There’s a moral here, somewhere.

And yes, I was terribly disappointed that I didn’t get to stand up in court and announce a verdict. I’ve always wanted to do that. It’s unlikely I’ll get another chance.

I’m going to get tipsy now. Regular blogging resumes tomorrow.

Justice for Andrea Yates

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Today Andrea Yates was found not guilty by reason of insanity for the drownings of her five children in 2001. She will be committed to a state mental hospital. Under Texas law, as I understand it, she cannot be released without a court order. As sick as she is, I doubt she will ever be released.

I’m going to repeat something I wrote awhile back about Yates —

I followed the Andrea Yates trial closely, and came to the conclusion that Texas is not only like a whole ‘nother country. It’s also stuck in a whole ‘nother century, sometime in the Dark Ages. The Texas justice system does not recognize brain disease; to them, insanity is a character flaw, or maybe devil possession.

The early news stories about Andrea Yates called her illness “postpartum depression,” but the truth is that she was a five-alarm schizophrenic. She had been sinking deeper and deeper into psychosis for several years, had attempted suicide, and had been in and out of psychiatric hospitals. In the months before the killings, one of her friends was so alarmed at her behavior she was keeping notes.

Two weeks before she killed her children, a bleeping incompetent psychiatrist took her off the antipsychotic meds — cold turkey — that had propped her up and kept her functional. A couple of days before she killed her children, her husband Randy took her back to this psychiatrist and begged him to put her back on her meds; the doc refused.

Once in county jail, the psychiatric staff proclaimed she was the most psychotic inmate they had ever seen. Several of the prison psychologists and psychiatrists — people who worked with her for many weeks — testified at trial that Yates was massively delusional. A prominent neuropsychiatrist tested her and diagnosed severe schizophrenia, noting major frontal lobe impairment. During her trial, Yates had to be drugged into catatonia so she could sit in her seat and not try to catch flies with her tongue.

The jury was told, over and over, that Yates had a disease of the brain. They were not told that, if found not guilty by reason of insanity, Yates would not have gone free. The court would have ordered her to be hospitalized, not to be released without another court order.

The prosecutors trotted out two primary witnesses. One was the psychiatrist who had taken her off her meds and who would have been charged with murder if I’d had anything to say about it. He said he saw no sign of psychosis in Yates. One suspects this guy couldn’t find shit in an outhouse.

The other witness was a paid expert psychiatrist who is also a consultant for “Law and Order.” He said that Yates had gotten the idea for killing her children from a “Law and Order” episode. Later it was determined that there was no such episode; it had been scripted but never produced.

After several weeks of testimony, the jury took all of four hours to find Yates guilty of murder. They decided she couldn’t have been crazy because she had called 911 to report the childrens’ deaths. Yes, this makes sense. A crazy person would have made up some story about intruders to avoid punishment.

This case should have never gone to trial at all. The taxpayers of Texas paid millions of dollars just so some hotshot prosecutors could get their names in the papers. Finally, the second jury got it right.

The Houston Chronicle has been doing excellent reporting on the Yates killings and the trials. You can start here and go back to the beginning.

Update: I’m listening to some attorney, Susan Filan, on Countdown saying that Yates got a “pass.” Filan doesn’t even have the basic facts right. She keeps saying Yates had postpartum depression; no, she had postpartum psychosis. Way different. She said Yates voluntarily stopped taking her meds. No, her psychiatrist took her off her meds, cold turkey, two weeks before the killings. Filan doesn’t understand psychosis. The fact that Yates waited until her husband had left for work to kill the children; the fact that she called police after; doesn’t mean she wasn’t acting in a psychotic state. Psychotics often can organize themselves and carry out plans. But they do what they do because they aren’t perceiving reality.

I’m really disappointed that Countdown didn’t have someone who actually knows something about the case to talk about it.

Bank Shot

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Glenn Greenwald has published a post called ” The Bush lynch mob against the nation’s free press” that I recommend highly.

Much of the post discusses calls to prosecute the New York Times for treason because of its recent disclosure of the Bush bank-transaction-tracking program. There are a couple of points I want to add to Glenn’s post.

First off, let’s be clear about what is wrong with the Bush program. Last Friday Jonathan Turley appeared on Keith Olbermann’s Countdown show, and he explained it clearly (emphasis added):

OLBERMANN: Joining me now to assess just how much of a legal thing it is to do, constitutional law expert Jonathan Turley, law professor at George Washington University.

And we meet again on this subject.

JONATHAN TURLEY, GEORGE WASHINGTON UNIVERSITY: Every week.

OLBERMANN: E-mails, international phone calls, domestic phone calls, databanks of phone records, now bank records. Do you buy the legality of this newest one?

TURLEY: Well, it‘s comforting to know that somewhere in government, each of our lives is organized in a file, from your banking records to your e-mails. I can only hope you get a copy at some point.

But, you know, this raises the same type of questions. Most importantly, the absence of congressional authorization. You know, the president is allowed to enforce the laws, he‘s not allowed to make them. He requires authorization from Congress. This is a constant theme.

And when Secretary Snow says the American people expect us to do things like that, unfortunately, it‘s true that every single week we have a new massive databank or a new, you know, surveillance program being revealed that has not been approved by Congress.

OLBERMANN: Yes, he may have said something, he may have said more than he knew in using that phrase, they—people expect us to do this.

But there‘s one difference with this one, Jon. Some of the banks didn‘t know this was happening. The government‘s not just messing with its own citizens here, it‘s messing with business. And if anybody in this country believes in privacy, and I think they call it proprietary information, it‘s businessmen. Are they going to fight the government in a way that ordinary citizens could not?

TURLEY: You know, Keith, they might, because if you remember, if we go back a couple weeks to an earlier disclosed program, the telecom scandal, that we found out that various telephone companies were giving information, telephone numbers, by American citizens to the United States government. And the response was a considerable backlash. Many customers were not happy, particularly when they found out that one company said, No, said, This is not something you can do under the law, and told the administration, Show me your authority. And the administration simply refused to do so.

Now, you may see a similar backlash from these banks, and saying, you know, We have a business to do here, we have a system of laws. If you‘re going to have some type of massive program like this, then go to Congress, and let‘s talk about it. You can do it in a classified setting.

But in this case, all we know is that some members of the intelligence committees were informed. Under this law they‘re citing, AIEPA (ph), he was only supposed to use this authority for a brief time, in an emergency. He was then supposed to go back to Congress to get real authority. Instead, he just kept on mentioning it to the same oversight members, who did nothing about some of these other programs.

OLBERMANN: Tell me, lastly, here about the term with which we started this segment, the secret administrative subpoena, not even reviewed by a judge nor a grand jury. What‘s the secret administrative subpoena business?

TURLEY: Well, I think they‘re talking about national security letters, which is basically what it sounds like, a letter claiming national security. But the thing I love is that Secretary Snow and his associates have said, Look, we did have oversight. It wasn‘t Congress, it wasn‘t the court. We went out and hired a private company, and they did the oversight, they protected your civil liberties.

This is (INAUDIBLE) outsourcing the Constitution. We—it‘s something that is almost laughable that they believe oversight is that they looked at themselves and felt good about it, and then they hired a private company, and they pretty good too.

OLBERMANN: Well, if you have a low threshold for feeling good about yourself, I guess you can do that, you can get that from a company or from your own picture of yourself, no matter how distorted it might be in the mirror.

George Washington University law professor, constitutional law expert, Jonathan Turley, great thanks for joining us. And I‘m certain we‘re going to be talking about something like this again soon.

TURLEY: Thanks, Keith.

OLBERMANN: Thank you, sir.

In sum, I don’t believe this is primarily a civil liberties issue, but more a breach of separation of powers issue. I bring that up because on last night’s Hardball I observed (until the channel was, mercifully, changed) Al Sharpton and some wingnut woman radio personality “debate” this issue, and neither one of them had a clue what he or she was talking about. Sharpton argued that the program violates civil liberties, and I suspect it probably does, but I don’t think we know enough detail to prove that it does. On the other hand, there’s no question the Bushies are in violation of usurping power the Constitution gives to Congress.

The other point is one that Glenn makes — that there is, actually, nothing in the recent news stories that terrorists didn’t already know. Last night on Hardball, before the atrocious Sharpton-Whozits debate, Chris Matthews interviewed Ron Suskind (bless him!), David Ignatius, and Evan Thomas on the finance-tracking program. The transcript isn’t up yet at the MSNBC site, but probably will be in the next couple of hours. Anyway, I gather from the converation that at least some of the “new” information published by the New York Times is also in Suskind’s new book, The One Percent Doctrine. I have only barely started reading it and haven’t gotten to that part yet, but I think the relevant section begins on page 141.

[Update: The MSNBC Hardball transcript is here. The interview with Suskind, Ignatius and Thomas is the first thing in the program. ]

Suskind et al. concurred that the terrorists have known about this program for a long time and have pretty much stopped using financial institutions to transfer money. These days the terrorists are mostly sending cash from here to there by way of couriers, they said. This has slowed them down a bit, but it isn’t stopping them.

For a whole lot more on this topic, read today’s Dan Froomkin column.

Update: Captain Ed misses the point. Again. Nobody is saying that the administration should not have been tracing terrorist financial transfers. (In fact, I am about 98 percent certain that the Clinton Administration tried to get a program like this going in the late 1990s, but Republicans in Congress shot it down. As I remember, Senator Phil Gramm of Texas, now retired, was instrumental in the shootdown.) The problem (and how many times does this have to be explained?) is that the Bushies are operating without proper oversight.

Duh.

Update update: More from Jonathan Turley at Democracy Now!

War in Washington

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When I first heard about the FBI raid on Rep. William J. Jefferson’s office it didn’t occur to me there might be a constitutional issue involved. But now — surprise! — House Speaker Dennis Hastert told President Bush yesterday that he thought the raid was unconstitutional, according to Patrick O’Connor at The Hill. And House Majority Leader Boehner wasn’t happy, either.

Calling the Saturday-night raid an “invasion of the legislative branch,” House Majority Leader John Boehner (R-Ohio) predicted the case would eventually be resolved in the Supreme Court and hinted that Congress would take further action. The majority leader said Hastert would take the lead on the issue because he is the chief constitutional officer in the House.

“I am sure there will be a lot more said about this,” Boehner said.

The problem is that the FBI raid on Jefferson’s office amounted to a raid by the executive branch on the legislative branch. An editorial in today’s New York Times explains the constitutional issue:

The court-authorized search of the Congressional office of Representative William Jefferson by federal agents was as unprecedented in the 217-year history of Congress as it was alarming to lawmakers of both parties. Critics instantly suggested that Congressman Jefferson, the Louisiana Democrat suspected of accepting hundreds of thousands of dollars in bribes, should have been spared the raid under some broad interpretation of the Constitution’s separation of executive and legislative powers.

Fuming lawmakers claim that the Constitution’s Speech and Debate Clause — which protects a lawmaker from politically motivated criminal harassment in the course of official business — should extend to making Mr. Jefferson’s office inviolable. …

…It’s hard to remember when the issue of separations of powers has arisen under such an explosive combination of political circumstances: an all-night search on a quiet weekend during an election-year session that has already been roiled by separate corruption investigations.

The “speech and debate” clause is in Article I, section 6, first paragraph:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

(I believe this is the same clause cited on behalf of Rep. Patrick Kennedy when he crashed his car into a traffic barrier a few days ago. It was argued that Kennedy couldn’t be arrested, and he wasn’t. However, the accident occurred at 3 a.m., and Congress was not in session at the time.)

The Findlaw annotations for this clause are here. And that takes us to the SCOTUS decision in United States v. Johnson, 383 U.S. 169 (1966), in which Justice Harlan wrote,

The language of that Article, of which the present clause is only a slight modification, is in turn almost identical to the English Bill of Rights of 1689: [383 U.S. 169, 178] “That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.” 1 W. & M., Sess. 2, c. 2.

This formulation of 1689 was the culmination of a long struggle for parliamentary supremacy. Behind these simple phrases lies a history of conflict between the Commons and the Tudor and Stuart monarchs during which successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators. 8 Since the Glorious Revolution in Britain, and throughout United States history, the privilege has been recognized as an important protection of the independence and integrity of the legislature. See, e. g., Story, Commentaries on the Constitution 866; II The Works of James Wilson 37-38 (Andrews ed. 1896). In the American governmental structure the clause serves the additional function of reinforcing the separation of powers so deliberately established by the Founders. As Madison noted in Federalist No. 48:

    “It is agreed on all sides, that the powers properly belonging to one of the departments, ought not to be directly and completely administered by either of the other departments. It is equally evident, that neither of them ought to possess directly or indirectly, an overruling influence over the others in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it. After discriminating therefore in theory, the several classes of power, as they may in their nature be legislative, [383 U.S. 169, 179] executive, or judiciary; the next and most difficult task, is to provide some practical security for each against the invasion of the others. What this security ought to be, is the great problem to be solved.” (Cooke ed.)

The legislative privilege, protecting against possible prosecution by an unfriendly executive and conviction by a hostile judiciary, is one manifestation of the “practical security” for ensuring the independence of the legislature.

The Times editorial says that invoking the Speech and Debate clause in the Jefferson raid is a stretch, and maybe it is. Yesterday Jeralyn Merritt wrote,

In Rep. Jefferson’s case, however, “separation of powers” just won’t cut it if the affidavit for the search warrant shows probable cause to believe that evidence would be found in his office. The same would apply to the President, the Vice President, their staffs, and the judiciary: If there is probable cause linking the place to be searched with an alleged crime, the search has the imprimatur of the law, is presumptively valid under the Fourth Amendment, and that is all that will be required to defeat a separation of powers claim. His private papers concerning his thoughts and votes are not off limits to a search warrant if the allegation in the affidavit is that the vote was paid for. That is bribery of a Member of Congress, and no Congressman is immune from that. Ask former Rep. Duke Cunningham.

I don’t think anyone is saying that Rep. Jefferson should be immune from the criminal justice system altogether, though. And I do not doubt the FBI had plenty of probable cause. The issue, seems to me, is whether the “speech and debate” clause creates a higher burden than standard probable cause for obtaining a search warrant for a congressman’s office. And if so, did the FBI’s warrant meet that burden? I hope one of our other fine blogosphere legal experts, like Scott Lemieux or Glenn Greenwald, will help us out.

It does seem that the raid on Jefferson’s office after months of leaving, for example, Tom DeLay and Randy Cunningham alone, smacks of political exploitation. First, as the Times editorial says, the Abramoff and Cunningham cases “suggest a pervasive, systemic form of corruption that does not seem to be at play in the Jefferson inquiry.” The FBI says it has a videotape of Jefferson accepting a $100,000 bribe, and that they found $90,000 of that bribe in his freezer. Seems to me they already had plenty of evidence for a prosecution. Could it be that the White House ordered the raid because the Bushies wanted Jefferson’s alleged corruption to get big headlines? Dumb question, huh?

According to CNN,

FBI agents searched Jefferson’s office in the Rayburn House Office Building from Saturday evening to early Sunday afternoon, bureau spokeswoman Debra Weierman said. One government official told CNN the search marked the first time FBI agents have searched a lawmaker’s Capitol Hill office.

Weierman would not comment on what agents removed from Jefferson’s office. But in the papers released Sunday, investigators stated they were searching for faxes, notes, telephone records and other forms of communication, as well as ledgers and computer files related to meetings and travel.

In an earlier statement, [Jefferson’s lawyer Robert] Trout called the search of Jefferson’s office “outrageous” and said it was not necessary.

“There were no exigent circumstances necessitating this action. The government knew that the documents were being appropriately preserved while proper procedures were being followed. We are dismayed by this action — the documents weren’t going anywhere and the prosecutors knew it,” he said.

However, a redacted copy of the search warrant and affidavit stated that federal investigators were unable to obtain the records relevant to the investigation inside Jefferson’s office and, “left with no other method,” proceeded with the search.

I’m no lawyer, but it seems to me that if this goes to the SCOTUS the FBI will have to argue that there was something Jefferson was hiding in his office that they really, really needed for an indictment and prosecution, and that they had exhausted other methods of obtaining this something. Had Rep. Jefferson refused to honor a subpoena, for example? [Update: Jefferson had refused to comply with a subpoena, according to the Associated Press.] I don’t know if the “speech and debate” clause renders a congressman’s office inviolable, but I would think the clause places a burden on the executive branch to show that the raid was not frivolous or politically motivated.

Carl Hulse wrote in yesterday’s New York Times that the raid seems to be part of a pattern:

Lawmakers and outside analysts said that while the execution of a warrant on a Congressional office might be surprising — this appears to be the first time it has happened — it fit the Bush administration’s pattern of asserting broad executive authority, sometimes at the expense of the legislative and judicial branches.

Pursuing a course advocated by Vice President Dick Cheney, the administration has sought to establish primacy on domestic and foreign policy, not infrequently keeping much of Congress out of the loop unless forced to consult.

“It is consistent with a unilateral approach to the use of authority in Washington, D.C.,” Philip J. Cooper, a professor at Portland State University who has studied the administration’s approach to executive power, said of the search.

“This administration,” Dr. Cooper said, “has very systematically and from the beginning acted in a way to interpret its executive powers as broadly as possible and to interpret the power of Congress as narrowly as possible as compared to the executive.”

But Republicans in Congress have been pretty much OK with being stomped on by the executive branch. Why are they fighting back now? Laura Rozen writes:

In a city that has become so hyper, Beria-like politicized, House GOP leaders have overwhelmingly sided with a House Democrat looking at face value pretty vulnerable to corruption charges in protesting the unprecedented FBI weekend raid on Rep. Jefferson’s office as a sign of what lawmakers claim is executive overreach. But the strange thing is, lawmakers would ostensibly have total oversight responsibility for the FBI, through the power of the purse, the power of writing legislation, subpoena power, confirming nominees, etc. If they’re concerned about alleged FBI overreach, they can haul in to testify not just FBI director Mueller, but his boss Alberto Gonzales. So what is really going on here? Perhaps a shot across the bow? Or is it panic?

But I can’t believe Bush’s boy Alberto would allow the FBI to raid Republican offices looking for incriminating evidence. Not when they are so desperate to win elections this November and keep Congress in Republican hands.

Braying of Hounds

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Those outraged because Zacarias Moussaoui got off easy with a life sentence can take comfort that he faces a fate worse than death. Dan Eggan writes in today’s Washington Post about the Administrative Maximum United States Penitentiary, or Admax, in Florence, Colorado:

Dubbed the “Alcatraz of the Rockies” by prison experts — and “The Tombs” by many prisoners and their lawyers — the 12-year-old “supermax” facility houses about 400 of the most dangerous and infamous prisoners in the federal system, from “Unabomber” Theodore J. Kaczynski to Ramzi Yousef, architect of the 1993 World Trade center bombing. After the Sept. 11, 2001, attacks, the U.S. Bureau of Prisons transferred most, if not all, of its terrorism-related inmates to the prison.

But Moussaoui is unlikely to meet, or even glimpse, Yousef or any other fellow jihadists at the Florence facility anytime soon, according to federal officials, lawyers and others familiar with operations there.

In the most tightly monitored part of the facility, known as the “control unit,” inmates are kept in segregation at all times — living, sleeping and eating in individual cells poured from concrete that measure approximately 7 feet by 11 feet. They are designed to ensure that inmates cannot speak to or make eye contact with each other, according to defense lawyers, human rights advocates and others who have had access to the facility. Some prisoners are monitored 24 hours a day by surveillance cameras in their cells, as Moussaoui has been during his years in the Alexandria jail. …

… Some inmates are allowed a handful of visitors and phone calls each month, but many of those incarcerated for terrorism-related crimes have no visitors other than their attorneys and the guards who shackle them whenever they are removed from their cells, according to defense attorneys and court testimony.

Ramzi Yousef, for example, often spends days at a time not leaving his cell, because using his daily one-hour exercise time requires submitting to body cavity searches. The only person allowed to visit him is his lawyer, whose offices and practice are in New York.

Ewen MacAskill of the Guardian adds the detail that “Religious services of numerous denominations are piped in from a small chapel.”

I keep thinking of a calf confined in a veal crate. They usually go mad.

Richard Serrano at the Los Angeles Times says that prisoners at Admax experience a slow rot.

They exist alone in soundproof cells as small as 7 feet by 12 feet, with a concrete-poured desk, bed and stool, a small shower and sink, and a TV that offers religious and anger-management programs.

They are locked down 23 hours a day.

Larry Homenick, a former U.S. marshal who has taken prisoners to Supermax, said that there was a small triangular recreation area, known as “the dog run,” where solitary Supermax prisoners could occasionally get a glimpse of sky.

He said it was chilling to walk down the cellblocks and glance through the plexiglass “sally port” chambers into the cells and see the faces inside.

Life there is harsh. Food is delivered through a slit in the cell door. Prisoners don’t leave their cells to see a lawyer, a doctor or a prison official; those visitors must go to the cell.

Prison expert James E. Aiken told the jury what Moussaoui’s life would be like at Admax.

In his trial testimony, Aiken said the whole point of Supermax was not just punishment, but “incapacitation.”

There is no pretense that the prison is preparing the inmate for a return to society. Like the cellmate of the count of Monte Cristo who died an old, tired convict, Aiken said, “Moussaoui will deteriorate.” …

… Christopher Boyce, a convicted spy who was incarcerated at Supermax, left the prison about 100 miles south of Denver with no regret. “You’re slowly hung,” he once told The Times. “You’re ground down. You can barely keep your sanity.” …

… Ron Kuby, another New York defense lawyer, has handled several East Coast “revolutionaries” who went on a killing spree, and a radical fundamentalist who killed a rabbi in 1990. All were brought to Supermax.

He thought Aiken’s description that prisoners rot inside its walls was too kind.

“It’s beyond rotting,” he said. “Rotting at least implies a slow, gradual disintegration.”

He said there were a lot of prisons where inmates rot, where the staff “plants you in front of your TV in your cell and you just grow there like a mushroom.”

“But Supermax is worse,” he said. “It’s not just the hothouse for the mushrooms. It’s designed in the end to break you down.”

I’ll leave it to others to decide if this is justice. I’m more concerned about what David Cole says in today’s WaPo. Cole calls Moussaoui’s prosecution an “object lesson in how the government’s overreaching has undermined our security.”

Four years ago Moussaoui was on the verge of pleading guilty to offenses that would have resulted in a life sentence. But he was unwilling to accept the government’s insistence that he admit to being the 20th hijacker of Sept. 11, 2001 — an allegation the government has long since dropped.

For almost two years, the case was stalled as the government sought Moussaoui’s execution while denying him access to witnesses in its control who had testimony establishing that he was not involved in the Sept. 11 plot at all. Due process has long required the government to turn over such “exculpatory” evidence, but the government, citing national security, refused to afford Moussaoui access to this evidence. In October 2003 the trial court offered a reasonable solution: Allow the trial to proceed but eliminate the death penalty, because that’s what the government’s exculpatory evidence related to. The government refused that solution and spent several more years trying Moussaoui. The case ended where it began — with Moussaoui facing life in prison.

Your tax dollars at work.

Meanwhile, at a secret CIA “black site” prison, the United States is holding the alleged mastermind of Sept. 11, Khalid Sheik Mohammed. And at Guantanamo Bay, Cuba, it has Mohamed al-Qahtani, who the government now claims is the real would-be 20th hijacker. But the administration can’t try either of these men, because any such proceeding would turn into a trial of the United States’ own tactics in the war on terrorism. The CIA has reportedly water-boarded Khalid Sheik Mohammed — a practice in which the suspect is made to fear that he is drowning in order to encourage him to talk. And Army logs report that interrogators threatened Qahtani with dogs, made him strip naked and wear women’s underwear, put him on a leash and made him bark like a dog, injected him with intravenous fluids and barred him from the bathroom so that he urinated on himself. With these shortsighted and inhumane tactics, the administration essentially immunized the real culprits, so it was left seeking the execution of a man who was not involved in Sept. 11.

As a PR tactic it seems to have worked pretty well with Bush’s Bitter Ender base, who don’t seem to have noticed that Moussaoui was a bit player, if that, in the 9/11 atrocity. They enjoyed a two-day virtual rampage over the verdict. You’d have thought Moussaoui was Osama bin Laden’s best bud and piloted one of the hijacked planes himself. I’m sure they’d still be at it except for the allegations that Patrick Kennedy was caught driving drunk and got special treatment from DC cops. No rightie will pass up an opportunity to wallow in the depravity of the Kennedys; they dropped Moussaoui and went after ol’ Patrick like hounds catching scent of a raccoon.

(I know hounds chase foxes in civilized places, but it’s raccoons where I come from.)

The Moussaoui case is emblematic of the administration’s approach to fighting terrorism. It has repeatedly overreached and sought symbolic victories, adopting tactics that have undermined its ability to achieve real security while disregarding less flashy but more effective means of protecting us. In the early days after Sept. 11, Attorney General John Ashcroft sought to reassure us with repeated announcements of the detention of large numbers of “terror suspects” — ultimately the government admitted to detaining 5,000 foreign nationals in the first two years after Sept. 11. Yet to this day not one of them stands convicted of a terrorist offense. Similarly, the administration launched a nationwide ethnic profiling campaign, calling in 8,000 young men for FBI interviews and 80,000 more for registration, fingerprinting and photographing by immigration authorities, simply because they came from Arab and Muslim countries. Not one of those 88,000 has been convicted of terrorism.

Come to think of it, some good ol’, coon dogs might do a better job.

Cole goes on to note that only 8 percent of the Guantanamo detainees are even accused of being fighters for al Qaeda. “The majority are not accused of engaging in any hostile acts against the United States.” Jose Padilla was stripped of his rights as a citizen and held in military custody for being “a marginal player in a hazy conspiracy to support terrorism. His indictment cites no terrorist acts or terrorist groups that were actually supported.”

While the government rounded up Arabs and Muslims with no ties to terrorism and authorized torture and disappearances, several of its highest-profile cases fell short, and it failed to carry out the more mundane work that might actually make us safer. In December the bipartisan Sept. 11 commission gave the administration a disastrous report card on its progress in implementing a series of practical security recommendations — such as better screening of cargo on airlines and containers coming into ports, securing of nuclear materials in the former Soviet Union to keep them out of terrorists’ hands, and protection of vulnerable targets such as chemical plants.

Tough talk in news conferences, overheated charges that evaporate under scrutiny and executions for symbolic purposes will not make us safer. The administration needs to turn away from symbolism and toward substance if it is to have any hope of protecting us from the next attack.

One of the many peculiarities of righties is that for them, symbolism is as good as substance. For them, image is character and rhetoric is accomplishment. Boasting is victory. Ideology is the only reality. Truly, the Bushies could just snatch random Muslims off the streets (which of course they’ve alrady done) and hang them publicly without evidence or trial, and a large part of the righties would accept this without question. They’d probably find a way to defend it as a bold antiterrorist initiative.

Finally, from the site Homeland Security Watch, we find a list of the people in U.S. custody that played a much larger role than Moussaoui in the 9/11 attacks. They are:

  • Khalid Sheikh Mohammed, the operational mastermind of the plot;
  • Ramzi Bin al-Shibh, a member of the Hamburg cell and the key facilitator of the plot;
  • Mustafa Ahmed al-Hawsawi, a financier of the 9/11 attacks;
  • Ammar al-Baluchi, a travel and financial facilitator for the plot;
  • Walid Muhammad Salih Bin al-Attash, a key deputy to Khalid Sheikh Mohammed;
  • Mohammed Manea Ahmad al-Qahtani, the real “twentieth hijacker” whose entry into the United States was denied at Orlando airport.

    • Strangely, the Bitter Enders seem unconcerned about prosecuting these guys. It seems they’re too busy blogswarming Patrick Kennedy. Gotta keep those priorities straight.

    Historians Are Relieved

    Posted on by

    The jury in the Zacarias Moussaoui case has sentenced him to life in prison rather than giving him the death penalty. This is good; it saves me the trouble of writing a long diatribe about how STUPID it is to execute people who might have unique personal information about a historically significant event. Moussaoui’s not talking now, but in ten years, or twenty years, he may change his mind.

    We’ll never know what information Timothy McVeigh took to the grave.