Brinkema: Balancing act key in Moussaoui case

Brinkema, who presided over the trial, said that balancing the interests of the government against the rights of the defendant was critical.

“I was particularly concerned ... with promoting respect for the judicial process,” Brinkema explained.

Moussaoui, once widely believed to be the “20th hijacker” of the Sept. 11 terrorist attacks, faced numerous high-profile charges, including conspiracy to commit acts of terrorism transcending national boundaries and conspiracy to use weapons of mass destruction.

Brinkema said she ensured that evidence relevant to the cases of both the government and the defendant was “rationally evaluated” so that emotional aspects of the case would not lead to a hasty death sentence, noting the “national hysteria” when the trial began in 2002.

Moussaoui’s pro se defense was one of the trial’s most challenging features. Defending oneself pro se — speaking in one’s own defense — is contrary to conventional legal procedure and, in this case, Moussaoui did so against the advice of his assigned counsel, Brinkema said.

Documented as “one of the most extensive criminal proceedings in U.S. history,” the Moussaoui trial involved “extensive amounts of classified evidence, extraordinary security concerns and intensive national and international media interest,” Brinkema noted in her speech.

In what she called “an extraordinary moral play,” Brinkema balanced Moussaoui’s requests to use in his defense the testimony of men directly involved in the conspiracy against the government’s interest in withholding the testimony of individuals representing a grave threat to national security.

Brinkema explained that she had “never envisioned a situation where a human being [would be] classified” or one in which the conflict between judicial procedure and national safety was so significant.

She devised acceptable methods of admitting the testimonies of classified witnesses by organizing high-security videoconferences and having attorneys submit written questions to the witnesses.

Ultimately, though 11 of the 12 jurors wanted to impose the death penalty in this case, Moussaoui was sentenced to life in prison without possibility of parole.

Following Moussaoui’s conviction, Brinkema received a new motion from Moussaoui seeking to withdraw his former guilty plea and pursue an acquittal. In the motion, he expressed “extreme surprise” that he had not received the death penalty and wrote, “I now see that I can receive a fair trial, even with Americans as jurors,” she said.

Brinkema denied the motion but interpreted it as a sign that her attempts at “balancing” had worked effectively.

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A New Jersey native, Brinkema attended Rutgers University as an undergraduate and went on to Cornell Law School. She worked as a trial attorney in the Criminal Division of the Department of Justice and as a U.S. Attorney for the Eastern District of Virginia before being nominated to her current position by Bill Clinton in 1993 and confirmed.

The lecture, titled “Terrorism in Civilian Courts: Balancing the Powers of Government,” was the annual John Marshall Harlan ’20 Lecture in Constitutional Adjudication. Former Supreme Court Justice Sandra Day O’Connor gave the inaugural Harlan lecture in 2003.