The invaluable Lyle Denniston reports on Zacarias Moussaoui’s new filing before Judge Brinkema :
The new filing also contended that the government, with aviation security evidence, would be seeking to prove something that the government had not planned when it initially proposed a death sentence. In the notice of intent to seek the death penalty, the reply noted, the government said that it would show as an act justifying such a sentence that Moussaoui had lied, and that act connected him with the deaths on Sept. 11. Now, according to the defense, the government is seeking an opportunity to prove that the deaths were due to Moussaoui’s failure to tell the truth. That would contradict his right to remain silent, the lawyers contended . . .
“While an incarcerated defendant may not lie to authorities, he certainly is not required to tell the truth, for he is not required to say anything,” the reply said. “It would be an extraorindary proposition — and like the Court, the defense is unaware of any such case — to execute a defendant for an omission, including his failure to take the affirmative step of telling the truth. But that is precisely what the government is now attempting to do…”
This is strong rhetoric in support of a freedom – the right to withhold life-saving information from the government – that probably finds little support among citizens. Indeed, the popularity of discussions of the “ticking time bomb” justification for torture suggests that most people don’t really believe there is a freedom to be silent when in possession of information that could prevent catastrophic crime. To the contrary, the overwhelming majority of the country seem to think that society has the moral right to compel the silent to speak. By compel, I mean inflicting extreme physical pain until you surrender your “determination, courage, and will,” and talk. (The quote is from the abstract to Michael Seidman’s forthcoming book, Silence and Freedom). Indeed, I imagine that most citizens would want to immunize officers in a real ticking bomb scenario were the tortured suspect die before speaking: thus, the freedom to be silent is, like all constitutional guarantees, contextually rooted at best.
That is, while I understand the legal basis behind Moussaoui’s motion, and I’m uncomfortable with the idea of an omission leading to an execution, I don’t think the defense struck quite the right note. The government has a powerful counter-narrative at hand: the Constitution does not celebrate silence in service of evil. Right?