Just Above Sunset
April 9, 2006 - Fantasy and Avoidance

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The week began with the usual madness.

"It is not very comfortable to have the gift of being amused at one's own absurdity." - W. Somerset Maugham, Of Human Bondage

That said, Zacarias Moussaoui, is now quite comfortable.

Why? On Monday, April 3rd, he got what he wanted


A federal jury found al-Qaida conspirator Zacarias Moussaoui eligible Monday to be executed, linking him directly to the horrific Sept. 11, 2001, terrorist attacks and concluding that his lies to FBI agents led to at least one death on that day.

A defiant Moussaoui said, "You'll never get my blood, God curse you all."


Charming. So he gets convicted, now he's made "eligible" for being removed from this world by the state, and the jury will hear days of "impact" testimony, from the widows of the World Trade Center attack of course, and hear lots of the audio tapes of distress calls that day, and decide if, since he's now eligible, he wins the prize.

Dahlia Lithwick, the attorney who does legal analysis for the online Slate site and the Washington Post (and now and then appears on MSNBC) nails the absurdity here


Hand it to Zacarias Moussaoui, who managed to snatch defeat from the jaws of victory with his fantastical eleventh-hour trial testimony last week about a never-before-mentioned fifth 9/11 airplane; the one that he would apparently have co-piloted with Richard Reid and flown into the White House. In a trial featuring some of the most spectacular episodes of government overreaching and misconduct we will ever see, Moussaoui managed to persuade the jurors that he was a key figure in the 9/11 attacks - even though he was in jail at the time and had always claimed before that Sept. 11 was "not my conspiracy."

When it looked like little Moussaoui was too small to play the outsized role the prosecutors had scripted for him, he simply grew himself to fit into it.


Yep, there is convincing testimony that his al Qaeda buddies thought him a useless fool and generally ignored him as a tiresome incompetent, and he seems to have resented that. Now he's the big man he always said he was when his friends all shrugged that Arabic equivalent of "whatever, big guy. He showed them all. Waleed bin Attash, Sayf al-Adl, and Khalid Shaikh Mohammed were wrong ion their testimony. He was important. The jury said so. So there.

Lithwick on the dynamics –


Put aside the uncomfortable fact that Moussaoui was always willing -even eager - to die as a martyr. Put aside also the fact that Moussaoui told the prosecution that he wanted to be executed. And that he was willing to testify against himself if it would mean avoiding a life sentence - because it was "different to die in a battle ... than in a jail on a toilet," as he put it.

Why shouldn't his jurors make his dreams come true?

This was what negotiators describe as a Pareto-optimal result: a win-win, in which Moussaoui, the government, and Americans craving vindication all got what they wanted. In the end, the verdict's only casualties are a few impossible-to-explain facts. Facts that should have added up to just this: We don't execute people for fanciful happenings that may have followed from imaginary conversations.


That's the rub. Even the judge was saying this was odd, new legal ground being opened here. This is the death sentence for conversations that did not happen - if, hypothetically, way back when, he had been truthful on this one date about these particular things, which he wasn't, then the authorities might have done this thing or that thing, hypothetically, which they didn't. That's a curious if-then reason to kill him. But the jury made the leap. There might have been this alternative, better reality. You never know.

Of course that leap assumes the swift-acting and highly competent FBI that would have leapt into action and collated all the information, working seamlessly with all levels of law enforcement, and stopped the plot cold. Well, they might have. You never know. All real-world, empirical evidence suggests otherwise, but they might have. You never know - if the conversation that never happened had happened, they might have done what they don't quite seem capable of doing. It's possible.

But as Lithwick concludes, this exercise in alternative realities works out fine for everyone –


Nobody will dispute that Moussaoui would have happily done anything at all to help the 9/11 plot succeed. But he did nothing to help it succeed because, as everyone but Moussaoui now agrees, he was flaky, wifty, and weird. It's not a capital crime to be flaky, wifty, or weird. Nor is it a capital crime to wish you were a hero instead of a dud.

Yet because of Moussaoui's false testimony, the government's nutty conspiracy theory, and the nation's need for closure, Moussaoui's name will be in the history books and the law books for all time; inextricably linked with 9/11, just as it has always been in his dreams. And perhaps we will all sleep better for believing that if Moussaoui had come forward and told what little he knew, we could have stopped those terrible attacks, just as it happens in our own dreams.

How lucky for Moussaoui that his fantasies and ours are such a perfect match.


It's a funny thing, and almost as if we're all in one of those fifth rate science fiction tales where someone travels back in time and bumps off Hitler's grandfather and WWII never happens and the world is a far different place that the one we've got, or the other tale where someone goes back in time and changes something that seems insignificant but turns out to be critical and a means the someone who went back was then never born so really didn't go back and change that one things, so that person was born and did go back, and so on and so forth.

The case law established here, with its hypothetical realities, is perhaps the legacy of those "Back to the Future" movies where Marty and the mad professor are always trying to work out such problems. And it is fun. But it's an odd way to run a legal system, where you execute people for the hypothetical "might have been."

But then, yes, here all parties get what they want - the real essence of the law, not what is logical.

And it's better than just punting.

That's what happened with the Supreme Court, Monday, April 3rd, as noted here - "The U.S. Supreme Court on Monday rejected an appeal by terrorism suspect Jose Padilla and avoided deciding whether President George W. Bush can order Americans captured in the United States to be held in military jails without criminal charges or a trial."

The question is, can, as the administration asserts, the president order the arrest of an American citizen on American soil and hold that citizen without charges, without any right to an attorney much less to any appeal, and certainly with no trial, for as long as he chooses (in this case, nearly four years) on the president's declaring that this person is really an enemy combatant - with the reason for that designation not open to any examination by any other branch of government, and certainly not the courts, as such actions are within his constitutional, plenary powers as commander-in-chief time of war.

It's an interesting question. In a time of war, does the president have the right to declare that some citizens have forfeited their rights as citizens by some action or planned action, on evidence he has been presented, evidence that should not be presented to any court, as that would interfere with his waging the said war, which is his job, after all? That the person may be innocent, in these cases, not relevant. The decision has been made - for the safety and security of the nation. This is too important.

Then are we at war? The administration says we are, but the Attorney General in the first NSA hearing says, strictly in terms of the law, we're not. But close enough?

And with the Jose Padilla case it's complicated. He was held four almost four years as someone who had, in the judgment of the president, forfeited his rights as a citizen - for planning to blow up something or other with a dirty bomb. Then the administration dropped that whole idea and charged him with an actual crime, transferring him to civilian custody (discussed in these pages here last December). The administration asked the Fourth Circuit Court of Appeals to vacate its prior ruling that he was someone the president could hold forever because he was so very dangerous. He was, really, just a criminal, so he did have rights - to know what he was being charged with, the right to an attorney, and to a trial and all that. They changed their minds. The Fourth Circuit Court of Appeals was not impressed.

So the question comes up to the Supreme Court. What's with this original ruling by the Fourth Circuit Court of Appeals that the president could hold him for four years? That doesn't seem right, that the president can order the arrest of an American citizen on American soil and hold that citizen without charges, without any right to an attorney much less to any appeal, and certainly with no trial, for as long as he chooses, upon the president's declaring that this person is really an enemy combatant - with the reason for that designation not open to any examination by any other branch of government, and certainly not the courts, as such actions are within his constitutional, plenary powers as commander-in-chief time of war.

What's with that? Is that right?

By a six to three vote the court Monday the 3rd said, well, it's moot. They tell the attorneys for Padilla, that since the guy is no longer locked up with no rights but is being tried on actual criminal matters, now is not the time to decide whether the president can do such things. But they say if it happens again Padilla can certain come back and ask about it. No problem. Let us know. Keep in touch.


This - "Keep in mind that Padilla has not been charged as the dirty bomber. My guess is that the evidence against him wouldn't hold up in civilian court. Backed into a corner the Administration had two choices: let Padilla's appeal go through and risk losing the 'right' to detain Americans forever - or charge Padilla only on broad ties to terror and hope that the Supreme Court would let their swindle stand."

This - "The importance of this case and this area of law in post-9/11 America should not deter judicial review, it should invite it so that it can be settled once and for all, lest the ambiguity invite more and more abuses."

Or this, noting that it was Justice John Paul Stevens' "dissenting opinion two years ago that concluded that Padilla's case implicated 'nothing less than the essence of a free society.' Today, he appears to be the critical vote to deny review."

So they're kicking that can down the road. Later.

So we roll on.

Ah well, make of it what you will. And how it's reported will be as an outrage, or a sound legal decision, or as a curiosity. But nothing was settled. Smiles in the White House on this particular Monday evening.

But be careful. The president is said to be an impulsive fellow. And this site you're now reading had a logon last week from the CIA, and one from the Department of Homeland Security, and Monday, April 3rd, one from the Sergeant of Arms at the US Senate. And the Customs Department has been reading the various items here on visas and entry to the United States, the items on Farley Mowat and the musings of Ric Erickson, editor of MetropoleParis, who has commented on such matters. We live in odd times.

Or we live in fine times. It depends on what you believe. It depends on what you read or see.

Is the media biased and messing with your mind? That's hard to say.

But then, here Jack Shafer points to a new and interesting study by Matthew Gentzkow and Jesse M. Shapiro, two economists from the University of Chicago - Media Bias and Reputation (PDF format).

Economists? Math? Complex formulae and all that? Yep. Just something that will appear in the April issue of the Journal of Political Economy, everyone's favorite magazine.

But Shafer makes it easy stuff, with this summary –


1) If a media outlet cares about its reputation for accuracy, it will be reluctant to report anything that counters the audiences' existing beliefs because such stories will tend to erode the company's standing. Newspapers and news programs have a visible incentive to "distort information to make it conform with consumers' prior beliefs."

2) The media can't satisfy their audiences by merely reporting what their audience wants to hear. If alternative sources of information prove that a news organization has distorted the news, the organization will suffer a loss of reputation, and hence profit. The authors predict more bias in stories where the outcomes aren't realized for some time (foreign war reporting, for example) and less bias where the outcomes are immediately apparent (a weather forecast or a sports score). Indeed, almost nobody accuses the New York Times or Fox News Channel of slanting their weather reports.

3) Less bias occurs when competition produces a healthy tension between a news organization's desire to conform to audience expectations and maintaining its reputation.


Jack Shafer uses this to do a riff on CNN versus Fox News and all the rest, and if you're a news junkie you can click on the link and read all that. You believe who you trust, and the economics are such they give you what you want, so you trust them, and they make money. It's a self-reinforcing economic loop. And if they're biased it's on things no one can verify at the moment, or the next day.

The idea here is that if you don't want bias you have to break the loop - split up the big media giants and all that. That's unlikely. And these two Chicago people say if you want to combat all that anti-Americanism in the foreign media, instead of trying to get Al Jazeera off the air, or get them censored, you stimulate completion for them, funding anyone who want to play - flood the market with start-ups, no matter what they broadcast. That's unlikely too. The president is on record thinking it might have been a good idea at one time to bomb the main Al Jazeera headquarters. The president is said to be an impulsive fellow.

Should we bomb the Washington Post for reporting this on the same Monday morning?


Three U.S. Marines and a sailor were killed in action in volatile Anbar province, the U.S. military reported Monday, bringing to 10 the number of American deaths over the weekend amid insurgent violence that also claimed dozens of Iraqi lives.

... Also Sunday, the military reported the deaths of six soldiers and airmen, including two who were killed when their helicopter apparently was shot down during a combat air patrol southwest of Baghdad on Saturday.

... Their deaths added to a toll of at least 50 Iraqis who were killed Sunday in a spate of violence that included a mortar attack, military firefights, roadside bombings and other explosions.


Or this?


A reconstruction contract for the building of 142 primary health centers across Iraq is running out of money, after two years and roughly $200 million, with no more than 20 clinics now expected to be completed, the U.S. Army Corps of Engineers says.

The contract, awarded to U.S. construction giant Parsons Inc. in the flush, early days of reconstruction in Iraq, was expected to lay the foundation of a modern health care system for the country, putting quality medical care within reach of all Iraqis.

Parsons, according to the Corps, will walk away from more than 120 clinics that on average are two-thirds finished. Auditors say the project serves as a warning for other U.S. reconstruction efforts due to be completed this year.


Or we go after the New York Times for reporting that over there the Shiite bloc now appears willing to chuck out Prime Minister Ibrahim al-Jaafari - the Kurdish and Sunni members of the National Assembly are ticked. The dynamic duo of our Secretary of State Rice and the UK Foreign Minister Jack Straw make a surprise visit and tell them all they really have to get it together - a government of some sort three months after the damned elections is something we expect - and as the Times says - "The developments suggested that a new phase in Iraq's convulsions might have started by opening a possibly violent battle for the country's top job between rival Shiite factions, which both have militias backing them. The incumbent prime minister, Ibrahim al-Jaafari, has said he will fight to keep his job, and his principal supporter is Moktada al-Sadr, a rebellious cleric whose Mahdi Army militia has resorted to violence many times to enforce his wishes."


This is not looking good. Is it bias to report these things? Is there a way to spin this positive?

And what do you do about, on NBC's Meet the Press, General Anthony Zinni, former commander of our forces in the Middle East, calling on Defense Secretary Donald Rumsfeld and other Bush officials to resign for making a "series of disastrous mistakes" in Iraq?

You can watch the video clip here


Zinni: ... I heard the case being built to go to war right away- I was hearing a depiction of the intelligence that didn't fit what I knew. There was no solid proof that I ever saw that Saddam had WMD...

ZINNI: I saw the - what this town is known for, spin, cherry-picking facts, using metaphors to evoke certain emotional responses or shading the context. We know the mushroom clouds and the other things that were all described that the media has covered well. I saw on the ground a sort of walking away from 10 years' worth of planning. You know, ever since the end of the first Gulf War, there's been planning by serious officers and planners and others, and policies put in place - 10 years' worth of planning were thrown away. Troop levels dismissed out of hand. Gen. Shinseki basically insulted for speaking the truth and giving an honest opinion.

The lack of cohesive approach to how we deal with the aftermath, the political, economic, social reconstruction of a nation, which is no small task. A belief in these exiles that anyone in the region, anyone that had any knowledge, would tell you were not credible on the ground. And on and on and on, decisions to disband the army that were not in the initial plans. There's a series of disastrous mistakes. We just heard the Secretary of State say these were tactical mistakes. These were not tactical mistakes. These were strategic mistakes, mistakes of policies made back here. Don't blame the troops. They've been magnificent. If anything saves us, it will be them.


Ah, but he's biased. Or not.

But then, things are coming right along. Zacarias Moussaoui will die, making everyone happy, even Zacarias Moussaoui. That Padilla fellow will be fine, and if they lock him up again and throw away the key, his attorneys can ask for a clarification. And the war is going as well as you see it going.

All's fine. And our friends at Parson's headquarters out in Pasadena, near the Rose Bowl, get to come home after all that work overseas.

Copyright 2003, 2004, 2005, 2006 - Alan M. Pavlik

The inclusion of any text from others is quotation for the purpose of illustration and commentary, as permitted by the fair use doctrine of U.S. copyright law.  See the Legal Notice Regarding Fair Use for the relevant citation.
Timestamp for this version of this issue below (Pacific Time) -

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