This week, the selection of the jury that will sentence Moroccan-born Canadian citizen Zacarias Moussaoui began. Moussaoui is the only person charged with any connection to the September 11 terrorist attacks on the United States. Originally, he was nicknamed the would-be "twentieth hijacker." But, as with several other prisoners alleged to be enemies of the United States, the government has dramatically altered its characterization of the charges against him as his case has progressed.

Moussaoui is facing the death penalty. Yet all the evidence suggests that he is no more mentally competent to be executed, than he was to enter into an agreement with the government to plead guilty, despite the lack of any benefit to himself from doing so.

To say this isn’t to diminish Moussaoui’s status. He’s a dangerous man who should be locked up – a sworn enemy to the United States. Indeed, enemy combatant status which would keep him locked up in military custody until the end of the war on terrorism would be appropriate.

The History of the Case: Another Government Bait-and-Switch

In April 2005, Moussaoui pled guilty to involvement in an al Qaeda conspiracy to hijack airplane and kills Americans. He also signed a government-prepared statement of facts relating to the case – facts the government said it was prepared to prove if his case had gone to trial.

The Statement of Facts indicates a troubling bait-and-switch on the government’s part – reminiscent of several other government "war on terror" bait-and-switches.

The first such bait-and-switch occurred when, in 2004, the government – after insisting on Yaser Hamdi’s dangerousness – entered into an agreement with him, that led to his release to Saudi Arabia. (A column by Michael Dorf discussed the agreement, and its enforceability in more detail.)

The second bait-and-switch occurred in 2005, with respect to the Jose Padilla case before the U.S. Court of Appeals for the Fourth Circuit. As Jennifer Van Bergen discussed in a previous column for this site, the government isn’t charging Padilla with the "dirty bomb" conspiracy it has long imputed to him in press statements. Instead, it wants to charge Padilla on different facts. And the switch was so striking that even the U.S. Court of Appeals for the Fourth Circuit sought to reconsider the case "in light of the different facts that were alleged by the President to warrant Padilla’s military detention and held by this court to justify that detention, on the one hand, and the alleged facts on which Padilla has now been indicted, on the other."

Moussaoui is facing death for failing to reveal to FBI agents what he knew about the 9/11 plot when questioned as to why he was in the United States taking flying lessons. The government says if he had told FBI agents the truth, the 9/11 attacks might have been thwarted.

His defense attorneys — back on the case now, after the judge found him not competent to represent himself at the sentencing — are sure to bring up the fact that FBI agents who arrested Moussaoui in August 2001 (on a visa violation when the flight school’s suspicions were aroused and reported to the FBI ) did not believe he was telling them the truth and had many grounds for suspicion.

Agents believed that he was taking flight lessons in preparation for hijacking planes. They asked prosecutors for a search warrant for his computer but were denied. Prosecutors also refused to authorize a criminal investigation into Moussaoui’s activities. FBI Agent Colleen Rowley testified to these events at the 9/11 Commission hearings.

The government had the means to find out more about Moussaoui prior to the attacks but did not do so. And, one has to wonder, even if Moussaoui had described the 9/11 plot in detail, would he have been believed? Would he have had more credibility with prosecutors than the FBI agents who voiced their concerns?

Serious Questions About Moussaoui’s Competency Remain

In an earlier column for this site, Michael Dorf explained why the decision to plead guilty – a decision not accompanied by any promise of leniency on the government’s part and made against the advice of defense attorneys- made little, if any, sense for Moussaoui.

There was strong evidence that Moussaoui was not mentally competent to make that agreement (the law defines competence as the ability to understand the nature of the charges and the proceedings and to assist defense attorneys).

Indeed, his defense attorneys had presented expert psychiatric testimony to this effect — suggesting that he was suffering from a delusional disorder, perhaps even schizophrenia. However, U.S. District Court Judge Leonie Brinkema found the prosecution’s experts more credible than those of the defense, ruled Moussaoui competent, and accepted his plea.

But in spite of Judge Brinkema’s ruling, Moussaoui’s competence is doubtful. Ever since his first court appearance in December 2001, his behavior in the courtroom has been erratic, marked by insults to the judge and his lawyers, rants against the United States, and boasts of martyrdom.

Now that a sentencing jury is being selected, the cause for doubt about Moussaoui’s competence is only intensifying. On Tuesday, Judge Brinkema, tired of his outbursts, ordered him out of the court for the duration of the jury selection process; yet, on Wednesday, she allowed him back in.

These very decisions undermine her prior competency finding. The erratic behaviors Moussaoui has exhibited throughout proceedings continue even now, when his life is at stake.

Otherwise, Judge Brinkema Has Ruled Well and Fairly

Up until this stage in the proceedings, Judge Brinkema has been a model jurist. A former prosecutor, she prides herself in running a fair courtroom. And she has gone out of her way to protect Moussaoui, in spite of his tirades against her.

For instance, she ordered the government’s witnesses to be present in court so that Moussaoui’s Sixth Amendment right to face his accusers would be respected, but was overruled by the U.S. Court of Appeals for the Fourth Circuit.

In spite of Moussaoui’s repeated "dismissals" of his public defenders, she ordered them to stay on the job for the sentencing, and to do what they can to protect his interests even as he rants against them and refuses to cooperate with him. In the rules she has crafted to govern the sentencing, she has tried to balance national security interests, the reality of intense publicity, and the public’s and defendant’s rights to an open trial.

Judge Brinkema even ruled that as Moussaoui had no direct involvement in the 9/11 attacks (recall that he was in federal custody, as of late August 2001), he could not face the death penalty. But in this matter, she was also overruled by the Court of Appeals.

Throughout this case, Judge Brinkema has tried to ensure that, despite the tremendous prejudice created by the government’s initial "twentieth hijacker" claim, the government must try Moussaoui under the laws and rules applicable to any other criminal defendant. That is laudable.

Judge Brinkema Should Hold a New Hearing And Reverse Herself on Competency

Now, Judge Brinkema is left in a quandary: If she sticks by her prior competency rulings, then a jury may send a mentally incompetent man (representing himself) to his death not for what he did–but for what he did not do.

But she can hold a new competency hearing and reverse herself. If found incompetent, Moussaoui can’t be sentenced until he is competent–which, barring some miracle, would likely be never. Maybe then the government would do the reverse of what they did with Jose Padilla: remove Moussaoui from the court system and turn him over to the military as an enemy combatant. A case that has monopolized the court’s docket for almost four and one-half years will be ended, and a dangerous man will be out of the limelight he craves.

This is not likely to happen. A jury is being seated, and despite the many battles fought for a man who doesn’t deserve the best our legal system has to offer, he is about to face the worst possible scenario–death for a horrific crime in which he had no direct involvement.

The government will be asking jurors to sentence Moussaoui to death to avenge the deaths of thousands of Americans. Ironically, the sentence may give him the martyrdom status among his extremist peers that eluded him when he could not pull off any terrorist acts on his own.