By Dahlia Lithwick
Sunday, February 12, 2006

Well, of course it's a "circus." While it's true that nobody describes any major trial anymore without at some point invoking that word, what's strange about Zacarias Moussaoui's courtroom outburst last week -- during one of the four times he was removed -- is that the "circus" comment came from the guy who's supposed to be crazy. It was not, in that sense, unlike the lion stopping just short of the flaming hoop and muttering, "This is nuts."

When the crazy folks are the only ones speaking the truth, you're either in a Shakespeare tragedy or Wonderland.

Thus Moussaoui, once touted as the 20th hijacker, starts the penalty phase of his trial, having already pleaded guilty to six felony counts of conspiracy in connection with the Sept. 11, 2001, attacks. He pleaded guilty, recall, over the objections of his lawyers and, even as he admitted lying to government investigators, he denied involvement in the attacks on the Twin Towers. In the coming months, a jury will determine whether he'll die or rot in prison. And as he has done each time he is granted an opportunity to step up to the courtroom's mike -- and often, when he has not -- Moussaoui used Monday's jury selection to repeat the talking points he has refined throughout this trial: He rejects his lawyers, he admits to being al Qaeda, he "won't be heard by this court" and "this trial is a circus."

As is usually the case, if you unbraid the message from its wacky messenger, Moussaoui's claims ring true. He has never denied that he is a member of al Qaeda. He hates America. He was involved in a never-executed secondary plot to kill Americans.

Weirdly enough, if you go back and read the government's original indictment in this case, those were precisely the facts they alleged, too. Yet the Bush administration first claimed in public statements by Dick Cheney that Moussaoui was probably the 20th hijacker, then claimed he was intimately tied to the Sept. 11 plot and now claims that he merely failed to disclose the Sept. 11 plot to the FBI. Why is it that Moussaoui's story hasn't changed much in four years, while the government has downgraded him from hijacker to secret-keeper? It leads one inexorably to Moussaoui's last talking point: that this is a show trial.

In part this is a show trial because we haven't quite figured out how to try vague, potential terrorists for vague, future plots. Experts believe even some of the 19 hijackers knew few details of how Sept. 11 would go down. But largely it's a show trial because the administration has learned nothing from its dealings with the other captured terrorists -- about the need for clarity, humility and small but certain gains in court.

· Did the government learn nothing about overselling a prisoner's capture from the embarrassment over Yaser Esam Hamdi's detention? An American citizen, nabbed in Afghanistan, Hamdi was reportedly so dangerous, he warranted locking up for almost three years without charges or due process. When the Supreme Court asked only that Hamdi see the inside of a courtroom, the administration sent this lethal enemy combatant home to Saudi Arabia without dessert.

· Did the government learn nothing about distorting evidence from the embarrassment over Jose Padilla's detention? When Attorney General John Ashcroft boasted, in 2002, that "we have captured a known terrorist who was exploring a plan to build and explode a radiological dispersion device, or 'dirty bomb,' in the United States," did he consider whether he could prove it? When the Justice Department downgraded that boast to crow -- in 2004 -- that Padilla had plotted to blow up apartment buildings, that claim should have been provable. But today Padilla is in criminal court in Miami, facing fuzzy charges of conspiracy and providing material support to terrorists. Was the administration overstating its case back then, or is it letting a criminal mastermind skate now?

· Did the government learn nothing about overzealous prosecution from the debris of the Detroit "sleeper cell" trial, in which two members of an alleged terror cell were convicted until a judge threw out the convictions citing rampant prosecutorial misconduct? In trying, once again, to super-size their terror cases, prosecutors evidently pressed an overheated theory long after they knew it was wrong.

But -- and here is where we move from hubris to cruelty -- the government keeps promising the Sept. 11 victims "closure" and "justice," and maybe it really believes that any old terrorist will do to that end. Why are the victims promised that this is their trial, where they will testify and bear witness on closed-circuit televisions, when at bottom what it seeks to prove is a speculative double-negative: that if Moussaoui had advised the FBI of something, something else might not have occurred? The defense has already begun to press its ironic response to that claim: The government clearly knew far more about Sept. 11, 2001, than Moussaoui did, yet failed to stop it.

Consider that Moussaoui was in jail on Sept. 11 and that the Sept. 11 commission concluded that he was likely just a "potential substitute pilot'' and not a central player. Consider that right now the person whose story makes the most sense in the Moussaoui trial -- defendant notwithstanding -- is his mother, Aicha el-Wafi, who told the French papers that her son "is an extremist. He should be judged for that -- but not for the things he did not do. He did not take part in the September 11 attacks." Consider that even some Sept. 11 victims have expressed doubt that Moussaoui should die because he led a life that paralleled -- but virtually never intersected with -- the lives of the hijackers.

Consider, then, the benefits of trying Moussaoui as a mere terrorist, rather than as a perpetrator of Sept. 11. For one thing his trial would appear fair, not just to the defendant, who might actually recognize himself in the indictment, but to the world, which would see that, when the charges actually correspond to the crime, the American court system works quite well. Consider, also, the message it would send to other lowly foot soldiers in al Qaeda (who might also recognize themselves in the indictment): "We don't just go after the ringleaders. We go after, and get, everyone, including the bumbling bottom feeders." That really might persuade some sleepers to stay asleep.

It's tempting to argue that the Western justice system just doesn't work when it comes to catching terrorists, that we should just, I suppose, round 'em up and shoot 'em instead. But let's give open court the old college try first. Let's go in and try to prove what we know to be true, instead of what we merely wish we could avenge.

© 2006 The Washington Post Company