Michael Isakoff in the August 5 issue of Newsweek, The Case Against Moussaoui: Internal Doubts, says "Moussaoui’s legal incompetence—rather than the evidence—may be the government’s strongest card."

We're still waiting to hear of any specific evidence or witness testimony that directly ties Moussaoui to the Sept. 11 attacks.

The French are doubtful of the U.S. claim that Moussaoui was supposed to be the 20th hijacker on Sept. 11. They think he was going to be used for a different and later mission.

Like the French, we have also noted the significance of the information that Moussaoui was learning to fly a 747 which is used far more in flying international than domestic flights, and was not one of the planes flown on September 11. And of the information that while the other hijackers all knew each other, Moussaoui did not seem to know the other hijackers or hang out with them. The other hijackers spent the latter half of August in the U.S., associating with each other and prepping for the Sept 11 attacks, during which time Moussaoui was in jail.

Re-read the allegations in the Third Superseding Indictment , or any of the previous Indictments and we think you'll agree with us.

Without proof that Moussaoui committed an act in furtherance of the September 11 conspiracy, we have our doubts the death penalty would be applicable for him. He may have joined the conspiracy but his arrest may have precluded him from committing any act in furtherance of it. His lawyers argue that if this is the case, the death penalty does not apply to him.

This is not like the Terry Nichols case where the government presented evidence (contested by the defense, but still evidence) that Nichols helped build the bomb that blew up the Murrah Federal Building in Oklahoma--and many other things to further the common objective. Even though Nichols was not in Oklahoma City on April 19, 1995, because of these alleged acts by him, the jury was allowed to consider the death penalty for Nichols. Ultimately, the jury rejected the death penalty for him.

Moussaoui's defense lawyers argued in their Response Brief opposing in the Death Penalty, that the Govenrment has no evidence that Moussaoui participated in any way in the Sept. 11 attacks.

In the meantime, the spectacle continues. We say the Government should offer Moussaoui a life sentence in exhchange for guilty pleas to the counts he believes he can admit to, or ask France if they will try him if we send him back there. France doesn't have a death penalty and has objected to our using it against him. Maybe France would also provide Moussaoui with a lawyer he trusts.

Here is the transcript of the Moussaoui hearing. We read it late last night and found it to be quite a window into Moussaoui's intended defense strategy (his, not his standby lawyers). And it's in html instead of pdf which we like much better.

We don't know why so many think Moussaoui's actions today were surprising. We've been saying all along that he would not get through a guilty plea, that he would not admit to every element of the charges to which he was pleading, or to participation in (as opposed to knowledge of) the September 11 attacks.

Since Moussaoui has always refused to admit participation in the attacks, we think his behavior today was both predictable and consistent with his earlier denials. See, Moussaoui Withdraws Sept. 11 Conspiracy Guilty Plea

We are also skeptical about the Government being able to prove his participation in the conspiracy to commit the September 11 attacks. Does the Government have even a single witness that will testify he knowingly joined or participated in that particular conspiracy? We haven't heard of any.

He has admitted to being a member of Al Qaeda, and to having knowledge about who committed the attacks. In our opinion, that is not enough to make him a co-conspirator in the Sept. 11 attacks.

One more thing: If the Government's evidence is that Moussaoui was a member of a different conspiracy than the one charged in the Indictment, the jury will be instructed to acquit on the charged conspiracy. They can't win by proving a different conspiracy than the one charged in the Indictment.

So if Moussaoui was being used by Al Qaeda to commit some other terrorist act, e.g. one involving crop dusters on another day in another city or if he hadn't yet been activated, or if they decided his crummy flight training record didn't warrant him being involved in Sept. 11, this case is no slam dunk for the Government. In our opinion, of course.

Arguing that Moussaoui is incompetent and mentally ill, the court-appointed stand-by lawyers with whom he refuses to speak asked for a delay of today's arraignment on the Third Superseding Indictment.

The lawyers say that their mental health experts confirm their belief Moussaoui is mentally ill, and need more time to determine whether he is legally competent to proceed.

The lawyers also filed motions challenging parts of the Indictment. They argue that airplanes are not "weapons of mass destruction" and that the death penalty cannot be applied to conspiracy to commit acts of terrorism and conspiracy to destroy aircraft.

Muddying the waters even further is a petition for mandamus filed Tuesday in the Fourth Circuit Court of Appeals by attorney Charles Freeman, Moussoui's lawyer of choice to advise him on federal law, seeking to overturn Judge Brinkema's prior rulings prohibiting him from meeting with and advising Moussoui.

According to Freeman's petition, only he can prevent Moussaoui's guilty plea.

Finally, there is a very readable profile on Public Defender Frank Dunham in Tuesday's Legal Times in which he discusses what it has been like for him to represent Mr. Moussaoui.

Moussaoui Friend Pleads Guilty to Lying (washingtonpost.com) But he has never been charged with a terrorism crime, and his expected sentence of six months is already served. He has agreed to remain in detention as a material witness in the Moussaoui trial until Dec. 31. If Moussaoui is not tried by then, he can seek release. If you can call probable deportation to Saudi Arabia a release. Our July 10 post Descent Into Detention has many more details on Mr. Al-Atta's case.

Judge Declares Moussaoui Competent In a two page Order today, the Judge presiding over the case of Zacharias Mossaoui ruled there is no new evidence to question her previous ruling that Moussaoui is competent to act as his own lawyer.

"Although the rhetoric in the defendant's ... pleadings has become increasingly confrontational, the court is not aware of any new evidence that would support a claim that the defendant is not mentally competent to proceed ... at this time."

While the Judge could change her mind Thursday at Moussaoui's next court appearance if his court-appointed standby lawyers present a new report in support of their assertion Moussaoui is mentally ill, that appears unlikely since Moussaoui refused to meet with the defense experts. and Judge Brinkema ruled he didn't have to. She said the visits "would deprive him of the limited privacy upon which he has insisted and to which we believe he has a legitimate claim."

Once again we question how, as a civilized society, we can make someone face the death penalty without benefit of a workable attorney-client relationship--especially when the accused has requested to meet with a competent attorney of his choice who is willing to advise him without charge.

It should also be noted that Moussaoui did not confess last week to any of the charges against him that pertain to the September 11 attacks. He said he was a member of Al Qaeda and he knew who planned the attacks. He did not say he participated in or planned them. He was arrested and incarcerated almost a month before the attacks. Does the Government have even a single witness who will link Moussaoui to the September 11 attacks--as opposed to merely being a member of Al Qaeda and supporter of its beliefs. This is hardly just a technicality.

According to Mark Allenbaugh in Why The American Taliban May Only Serve 13, Not 20 Years, In Prison, a former Staff Attorney for the United States Sentencing Commission assigned to the Commission's Terrorism Team. the Government has miscalculated the sentencing guidelines in the case of John Walker Lindh.

Allenbaugh says the terrorism adjustment for the count pertaining to supplying services to the Taliban may not apply.

If the terrorism adjustment doesn't apply, Lindh would be out in under 12 years.

For more on the terrorism adjustment and an explanation of guideline calculations used in the plea agreement, see TalkLeft's recent breakdown.

Chief counsel for John Walker Lindh James Brosnahan sheds some light on his client's views of September 11 and Bin Laden.

On his client's view of Bin Laden: "He doesn’t have a high opinion of bin Laden. He views bin Laden as a false prophet, as someone who violates the Qur’an by attacking civilians. It’s not what John had in mind at all."

Courtesy of the Washington Post.

5:00 If there was a news conference, we didn't see it. We did just see a taped report of NBC's Pete Williams on MSNBC, and he got it right as to the procedure. So did Dan Abrams on his show at 6pm ET. According to a law professor interviewed by Pete Williams in his piece, the death penalty is legally doubtful for Moussaoui if all he did was join the conspiracy but didn't actually kill or hurt anyone. Dan disagreed, pointing out that the jury was allowed to consider the death penalty for Terry Nichols even though he was not in Oklahoma City the day the federal building there was bombed. (The Nichols jury voted for life over death, which explains the State of Oklahoma's insistence on trying him in state court where he will once again be subject to the death penalty. )

Our view: Send in the lawyer from Texas that Moussaoui asked to have advise him weeks ago. It shouldn't matter that the lawyer isn't licensed in Virginia, he's not seeking to enter his appearance as Moussaoui's counsel, only to advise Moussaoui while he is representing himself. It's clear Moussaoui doesn't understand the consequences of pleading guilty if he thinks it is a guarantee of saving his life. And sending Moussaoui to face a death penalty jury without advice of counsel of choice is not a resolution Americans should be proud of--or stand for.

1:15 News conference hasn't started yet, but some misinformation is emerging on two cable networks that we've seen about what happens sentencing-wise if Moussaoui pleads guilty.

Here is the applicable federal death penalty statute.

First, contrary to what one analyst has said, Moussaoui does not need the Government's permission to plead guilty. There is no plea bargain here. Anyone can plead guilty at any time to all of the charges against them. They just can't plead guilty to lesser charges without an agreement. The sole issue as to whether Moussaoui can plead guilty to the offenses with which he is charged is whether he is legally competent to do so.

Second, the death penalty can be applied where a defendant pleads guilty. Moussaoui said today he wants to fight the death penalty. The procedure followed when someone pleads guilty in a case in which the Government has filed a notice to seek the death penalty is for the judge is to convene a 12 member jury to hear the evidence and make the life/death decision.(Section (b)(2)(a) of statute linked to above, 18 USC 3593).

However, the judge can make the decision without a jury if the defendant requests, and the government agrees. (Section (b)(3))

By pleading guilty to the crime, Moussaoui does not waive his right to seek life over death, and he certainly could get the death penalty if the jury or judge so determined after a hearing.

12:25 Moussaoui confesses to crimes in open court...According to Pete Williams now on MSNBC, Moussaoui was more combative in court today, mocking the Judge, talking when she talked, saying the Judge isn't being fair, her politeness is a sham, she is trying to get him executed.

At the end of hearing, which was supposed to be his re-arraignment on the new Indictment, the fireworks started when he refused to plead and the Judge said she would enter a not guilty plea for him. He then said he wanted to plead guilty because the Judge wouldn't allow him to run his defense the way he wanted to. He announced he was guilty, he was a member of Al Qaeda, and he knew who was responsible for the September 11 attacks.

The Judge gave him a week to think it over.

Moussaoui wants to plead guilty but fight for his life in the sentencing phase.

12:25 MT: news conference about to start, longer AP article

Coming across the AP wires now, " Zacarias Moussaoui, indicted in connection with Sept. 11 attacks, tries to plea guilty to federal charges; judge tells him to think it over "

Stay tuned....

Richard Cohen in today's Washington Post Spotlight John maintains that John Walker Lindh should have made the resignation of Ashcroft a condition of his plea bargain.

"Just about the only time Ashcroft chose to keep his mouth shut was when the plea bargain was announced. For once, the AG was not in makeup.For Ashcroft, this is beginning to look like a pattern. First comes the hype and then comes the disappearing act.