William Mitchell Law Review

Publication Information

31 William Mitchell Law Review 1417 (2004-2005)


This article, after giving a brief history of the Moussaoui case, identifies the main paradoxes or problems of continuing to deal with him in the criminal system. By no stretch of the imagination does this article provide an exhaustive or comprehensive treatment of the Moussaoui case. Each problem, by itself, could be the subject of a separate law review article. This article suggests that Moussaoui, rather than Yaser Esam Hamdi, or Jose Padilla, or the detainees in Guantanamo Bay, could have served as the true test for determining the minimum process that the American Constitutional system owes to an individual whose goal is our annihilation. The distinction between the Moussaoui case and the Hamdi/Padilla cases is that Moussaoui is not a U.S. citizen. The distinction between the Moussaoui case and the Hamdi/Padilla/Guantanamo cases is that the Bush Administration has offered more convincing evidence in public filings that Moussaoui was a major player connected to a major terrorist plot. The premise of this article is that we should respect our rule of law but that we should not treat terrorists any more decently than required. To do more than the law requires, in an age of weapons of mass destruction, is more folly than an act of humanity. Although this article does not address the case of a non-U.S. citizen who is a major player arrested outside the United States, it follows that someone like Khaled Sheik Mohammed (KSM), the alleged mastermind of the 9/11 plot, should not be treated any better than Moussaoui. This article’s conclusion is that the Moussaoui case is better resolved through a military proceeding.