Toensing begins with the Brady rule, requiring disclosure of information and access to witnesses:
A major problem unfamiliar to non lawyers is the Brady rule, which requires the government to provide the defendant with any evidence that could be “exculpatory.” This broad term includes access to any witness and document that could directly bear on innocence, as well as information that could indirectly help, such as impeachment material revealing whether the witness was given money for appearing even if just travel expenses. Brady, a valuable tool for defense counsel, is a constitutionally based requirement. Most often, if not followed, it results in reversal of the conviction. It is usually played out pretrial where the defense requests specific witnesses and documents, and the court decides whether the requests are speculative or should be granted.
And here, as Toensing recounts, is how Brady played out in the Moussaoui circus:
This issue brings us to the trial of Zacarias Moussaoui, much touted by the administration as an example of a successful terrorist prosecution by the Bush Justice Department. It is not. It was a three-and-a-half year legal nightmare for the prosecution. Using Brady, Moussaoui demanded to depose numerous detained enemy combatant witnesses. The judge found he was entitled access to three of them. Understandably, the government did not want to grant one terrorist the ability to question another, nor to disrupt captives undergoing their own interrogation processes. When informed it could not comply, the court denied the government the ability to argue for the death penalty.
Moussaoui also used Brady to request reams of classified documents via the Classified Information Procedure Act (CIPA). The process usually entails the government rewriting classified documents as classified summaries and giving them to a security “cleared” defense counsel. Moussaoui, the terrorist, insisted on his constitutional right to defend himself so he could personally review the classified summaries. When allowed to write his own motions, Moussaoui filed threats against public officials. When he was in court, Moussaoui ranted that he prayed for the “destruction of the Jewish people.”
The appellate court restored the death penalty. However, other appellate remands had not been completely worked out at the trial court level when Moussaoui decided to plead guilty, over his counsels’ objection. Even though Moussaoui admitted during his plea that he had communicated directly with OBL and trained at a terrorist camp, that he “knew of al Qaeda’s plan to fly airplanes into” the White House and World Trade Center Towers, that he had agreed to “participate” in that plan, and that when he was arrested he lied to the FBI because he wanted the mission “to go forward,” the jury declined to give him the death penalty.
Unsatisfied with escaping death, Moussaoui made a rare appeal of a guilty plea claiming, in part, he was forced to plead because of not having access to classified documents and fellow terrorists. It took the appellate court 78 pages to discuss the issues, holding that because he pleaded guilty he had waived those arguments. Good lesson for KSM. Go to trial because the Brady and CIPA issues await you.
Is this really what Team Obama wants? How will the American public greet similar problems in a far more highly-publicized 9/11 plotter trial? Will the jury selected in the 9/11 case prove as loopy as that in the Moussaoui case?
Bottom Line. Ironically, the drive GOP leaders are mounting to push the 9/11 terror trial back to the military side may save Barack Obama's prospects for a second term. It is still the right thing to do, because the damage to American prestige resulting from a civilian proceeding that makes hash of the prosecution's case will be immense and irreparable. Call it, from the GOP to 44, the ultimate example of beneficial political tough love therapy.
Letter from the Capitol, LFTC, 9/11, National Security, Terrorism, Homeland Security
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