An anonymous commenter writes in with the following question:
My request is, perhaps, a bit presumptious, but could you possibly blog about the Moussaoui case? I’d be very interested in your views. I’m particularly interested in your thoughts on the basic premise of the government’s case. If I understand correctly, they need to demonstrate that Moussaoui did something that caused someone to get killed. The government seems to be attempting to meet that burden by arguing that Moussaoui lied to authorities and had he told the truth, 9/11 could have been prevented. This seems a slick attempt to elide two different things. Wouldn’t the government have to show that his actual lies contributed to 9/11 i.e., that the government somehow relied on that he told them in a way that made it possible for 9/11 to happen? Had he been silent, he would not have been “telling the truth” either but his mere silence would not qualify him for the death penalty.
I haven’t been following the Moussaoui case very closely, but I’d be happy to give some amateurish and somewhat uncertain thoughts and then open it up for comments.
The first thing to keep in mind is that Moussaoui did not plead guilty to participating in the 9/11 attacks. He pled guilty to a conspiracy to engage in an act of terrorism, not an act of terrorism itself. A conspiracy is an agreement with another person or persons to engage in a criminal act, even if the act doesn’t take place. In the case of Moussaoui, he pled guilty to agreeing to participate in a plot to hijack planes. As I understand it, Moussaoui hoped and planned to be a hijacker, but the Al Qaeda higher-ups didn’t think he was up to the job so they sidelined him. Moussaoui is therefore guilty of conspiracy (the agreement), but not the hijacking plans that went forward (the 9/11 attacks).
Moussoui pled guilty to the conspiracy count, an offense for which he is death-penalty eligible, and now the government is attempting to make the case that Moussaoui deserves the death penalty. As I understand it, the question at this stage is (in simple terms) just how bad the case is — in particular, whether the aggravating circumstances of the crime outweigh the mitigating circumstances. The government therefore isn’t trying to show that Moussaoui “caused” the 9/11 attacks himself. Rather, they are arguing that the circumstances of Moussoui’s involvement in the conspiracy were particularly egregious, and the egregiousness is that Moussaoui sat by and let the plot unfold, leading to the deaths of 3,000 people when he could have stopped the conspiracy from being successful.
At least that’s my understanding of the argument. If I’m off here, I hope commenters will let me know.
I believe the government’s case has been that Moussaoui was a co-conspirator in the 9/11 attacks specifically, irrespective of any claims he may have made to be part of a second wave. He is widely referred to as the 20th hijacker, though the basis for this belief may be largely limited to the oddness of the actual number involved being 19.
If Moussaoui were proven to have participated in the planning of 9/11, even if he was not part of the execution he is partially responsible for the events of that day, and is liable for the consequences.
Against this case, Moussaoui denies being part of this particular conspiracy.
I think you’re a bit off the mark here. This penalty phase is different than the usual mitigating-aggravating calculation because according to federal law one can only receive the death penalty on a conspiracy charge if the conspiracy actually resulted in the death of some individual. So if M belonged to a different conspiracy that never came to fruition then he cannot receive the death penalty. Hence the govt’s attempt to prove that he was part of the actual 9/11 plot.
[OK comments: This is helpful, Jonathan. Do you have any citations to share that explains more what the legal standard is?]
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I think Jonathan is right. I’ve tried to dig up the government’s trial brief on line but couldn’t find it. I did find this analysis, though that explains what the government has to prove to death qualify Moussaoui.
“To open that door, the government must show that Moussaoui’s conduct had a direct connection to the terrorist acts of 9/11, and actually helped cause those murderous acts. And the only way the government has figured out to try and make this showing is to argue that, if Moussaoui had only told the truth to government agents when he was arrested in August 2001, then the information he would have provided would have permitted the FBI to connect the dots to foil the 9/11 attacks.”
Here’s a link to Moussaoui’s guilty plea, specifically to the allegation that links him to 9/11.
http://news.findlaw.com/hdocs/docs/moussaoui/usmouss42205sof4.html
After reading the plea over, I half suspect it represents another prosecutorial screw-up — either that, or a sudden outburst of prosecutorial ethics. They could have artfully drafted it to avoid the problem they’re having now and Moussaoui still would have signed it. If you look on the last page, you’ll see he signed the plea as “20th Hijacker!”
Anyway, there does seem to be not so much a legal problem as a logical one. The government’s case is that,
A)To qualify M for the death penalty, the government must prove that M did something that directly helped cause 9/11.
B)M lied about his plans.
C)If M had told the truth, 9/11 could have been prevented.
-> M qualifies for the death penalty.
But that’s not really a valid argument.
A)To qualify M for the death penalty, the government must prove that M did something that directly helped cause 9/11.
B)M was interrogated but refused to say anything.
C)If M had told the truth, 9/11 could have been prevented.
-> M qualifies for the death penalty.
But this can’t be correct. You can’t be executed for invoking your 5th Amendment right to remain silent. In addition, (and I’m less sure about this) the government is trying to argue that M had a positive duty to come forward. In other words, that he can be executed for his not for his actions but for his failure to act. Is that correct?
To make their case, I think the government really has to demonstrate the following,
A)To qualify M for the death penalty, the government must prove that M did something that directly helped cause 9/11.
B)M lied about his plans.
C)The government relied on M’s lies.
D)Had the government not relied on M’s lies, it would have taken action that would have prevented 9/11.
-> M qualifies for the death penalty.
In other words, the test is not what the government would have done differently had M told the truth. The test is what the government did differently in reliance on the specific lies that M told them.
Does that make any sense?
So if M belonged to a different conspiracy that never came to fruition then he cannot receive the death penalty.
I am uncertain that this is strictly correct. Conspiracies can be diffuse and of the “network” kind, where one member of the conspiracy does not know another member or even the specifics of the conspiracy he is furthering, e.g., you run drugs for a criminal organization managed by a foreign boss. In the case of interlocking conspiracies, i.e., Conspiracy 1 “does not come to fruition” but, unbeknowst to you, produces some gains that further Conspiracy 2, you would still be on the hook, because the test is actual cause, not foreeeability.
The reason the government has to prove knowledge in this case is due to their particular theory — that M lied. To prove he lied, you have to show he knew his statements were false. This is not a strange case theory to pursue, given that M, in his first pleading, admitted that he had direct knowledge of the 9/11 attacks. M later denied direct knowledge of the 9/11 attacks, to undermine the government’s case theory.
http://www.washingtonpost.com/wp-dyn/content/discussion/2006/02/03/DI2006020301740.html
I would note that, in connection with my earlier comment, which is awaiting moderation, the standard of actual cause (not foreseeability) is clearly spelled out in 18 U.S.C 32 “Destruction of aircraft or aircraft facilities,” particularly subsection (6), which deals with false communications, and subsection (7), which deals with attempts or conspiracies. Both would support the government’s case theory.
I haven’t enough detail to be certain about the relevant law but it seems to involve one of the stickier elements of the law of conspiracy. I think the legal footing of the argument about Moussaoui’s failure to warn is the rule that a co-conspirator remains a co-conspirator unless there is an overt action which ends the conspiracy or withdraws him from the conspiracy. Often a conspiracy is ended by police action, breaking up the plan and the conspiracy. The clearest way to withdraw from a conspiracy is to tell someone you are withdrawing or to take an action inconsistent with the conspiracy. In Moussaoui’s case, once he was arrested, the only such action available seems to have been telling the police.
Moussaoui cannot be punished simply for invoking his right to silence. He can be punished for lying. Obstruction of Justice cases often hinge on a defendant’s choice to lie about something when they could have just remained silent.
However, it seems like a stretch to claim 9/11 would not have happened if he had not lied. It likely would have been prevented if he had told the truth, but telling the truth and lying were not the only two options.
PandaFood,
I’m not sure that statute really applies as the issue is what the USG has to prove to trigger the death penalty.
Anyway, that statute actually bolsters my point.
(6) communicates information, knowing the information to be false and under circumstances in which such information may reasonably be believed, thereby endangering the safety of any such aircraft in flight; or
The government is arguing that the information Moussaoui didn’t communicate “endangered the safety . . . of an aircraft in flight.” I’m suggesting, as does the statute, that the government would have had to rely on specific, false information communicated by M in order to trigger the death penalty.
Dahlia Lithwick and Stanford Law professor Robert Weisberg explained the government’s theory (and the statutory requirements it aims to meet) here.
Bob Weisberg and Dahlia Lithwick discuss the issue here:
http://www.slate.com/id/2137689/
The legal standard in federal death penalty cases is that “the victim died as a direct result of the act” 18 U.S.C. § 3591(a)(2)(C)&(D)
Excellent link, Jonathan! It seems my parsing of the problem was not as strained as I originally thought.
Posted by Daniel Shinkle: Moussaoui cannot be punished simply for invoking his right to silence. He can be punished for lying. Obstruction of Justice cases often hinge on a defendant’s choice to lie about something when they could have just remained silent.
But the question isn’t whether he can be punished for being a member of a conspiracy or for lying — he can. The question is whether he qualifies for the death penalty. The test is whether he committed an act such that, “a victim dies as a direct result of the act.”
Did he “commit” such an act? The answer has a lot more to do with logic and, I suppose, philosophy, than it does with law.
Original TS,
1. One can receive the death penalty for violating 18 U.S.C 32. It is one of the statutes to which the federal death penalty applies. It explicitly uses the word “cause,” without modification, and 18 U.S.C. 32 must be consistent with 18 U.S.C. 3591(a)(2)(C)&(D) for both to be good law.
2. With all due respect, you are mis-reading the statute. If M had said “There is no such plot. 19 other terrorists and I planned on crashing planes into a building today, but then we abandoned the plan,” that is both: 1. a false communication, because the plan was not abandoned; and 2. it endangers passengers on the aircraft, which is, in fact, going to be destroyed by the terrorist attack unless someone intervenes. M knows why he is being questioned.
J. Stein,
I think that “direct result” means “actual cause”. “Indirect result” sounds like a broader negligence standard that we could apply regardless of whether M had specific knowledge that the act would occur. I admit this is a textualist argument, but I think it is consistent with the statute’s purpose.
D. Shinkle,
You wrote: “Moussaoui cannot be punished simply for invoking his right to silence. He can be punished for lying.” I agree with this.
But, as I understand Original TS’ position, which Original TS can certainly clarify, lying is equivalent to remaining silent, because no truthful information that ends the conspiracy has been communicated. Therefore, the 5th Amendment protects lies.
The Supreme Court rejected the claim that the 5th Amendment includes the right to lie in US v. Harris (which is only a few paragraphs). Harris is still good law, as it was primarily relied on by the Solicitor General’s brief in US v. Patane, which was decided in favor of the government and explicitly referred to Harris. (Caveat: J. Thomas wrote for a plurality.)
I would also note that, in connection with my last comment, which is awaiting moderation, the Anti-Terrorism and Effective Death Penalty act made the following change, among others, to 18 USC 32: “A violation of 18 U.S.C. § 32 was also made a predicate offense under the money laundering statute, 18 U.S.C. § 1956(c)(7)(D).” Let’s say that M’s overt act was to help filter donations from a sham charity into the 9/11 attack, i.e., some of that cash paid for the one-way tickets. His intent to promote the entire scheme could be used to cover each predicate act of money laundering. It is a broad view of causation, but that’s how federal money laundering statutes work: Congress knew that when they incorporated money laundering statutes into a death penalty statutory scheme.
Sorry:
1. that was HARRIS v. NEW YORK, 401 U.S. 222 (1971).
2.http://thomas.loc.gov/cgi-bin/bdquery/R?d104:FLD002:@1(104+132)
Also, the CRS report:
http://www.fas.org/sgp/crs/RL30962.pdf
This really isn’t a speculative argument.
Up above, when I wrote “Both would support the government’s case theory,” I should have written, “Either would support the government’s case theory.”
Apologies.
“But, as I understand Original TS’ position, which Original TS can certainly clarify, lying is equivalent to remaining silent, because no truthful information that ends the conspiracy has been communicated. Therefore, the 5th Amendment protects lies.”
No, that’s not quite it. Let me illustrate what I’m trying to get at with a couple of hypotheticals.
First, remember that the threshold standard for applying the death penalty is whether he committed an act such that, “[a] victim dies as a direct result of the act.” Second, remember that M has not pled guilty to being a part of the 9/11 conspiracy. He pled guilty to being part of a different conspiracy. He does, however, admit that he had heard about the 9/11 conspiracy.
Hypo 1
Moussaoui is arrested and interrogated by the FBI. M refuses to answer any questions.
{I think everyone agrees that M does qualify for the death penalty on these facts.}
Hypo 2
Moussaoui is arrested and interrogated by the FBI. M tells the FBI that his name is Abraham Lincoln even though he is carrying half-dozen documents at the time of his arrest that reveal his real name. M then refuses to answer any additional questions. The FBI is not fooled, even for a minute.
Hypo 3
Moussaoui is arrested and interrogated by the FBI. M tells the FBI that he’s only a simple tourist and, though he’s never had any actual flight experience, is learning to fly 747s for his own amusement. The FBI doesn’t believe him.
Hypo 4
Just like Hypo 3 except the FBI DOES believe him.
Hypo 5
Moussaoui is arrested and interrogated by the FBI. M claims, in detail, to be part of a plot to spread Anthrax over major American cities using flying carpets. The FBI concludes M is mentally ill and ignores his “warning.”
Hypo 6
Moussaoui is arrested and interrogated by the FBI. M claims, in detail, to be part of a plot to hijack planes. He details the plot but intentionally gives false information. The FBI believes his story and the federal government takes action based on the information he supplied that shifts security assets in a way that strengthens security in some areas and weakens it in others. The actual hijackers are better able to sneak in through the weakened areas and complete their attack.
Bearing in mind the “[a] victim dies as a direct result of the act” standard, under which of these fact patterns is M eligible for the death penalty and why?
HARRIS left standing an argument that certain, very limited lies remained protected. Specifically, a suspect could deny involvement in a crime, but was not protected if that denial included any specifics or any explanation. That is, I could say, I am not planning to blow up that plane, but I could not say, I don’t know the other 19, or that we talked about it but decided it was a bad idea. The simplified theory being that a simple denial has no more practical effect than silence, but further misstatement will point investigators in the wrong direction.
While this theory has (to my knowledge) been thoroughly defeated, it retains some relevance in the Moussaoui case. Silence by Moussaoui would have made 9/11 no more likely. A simple denial would probably fall in the same category. But a more detailed lie could have to effect of frustrating the investigation and so would be a cause of the success of the crime.