MacMahon, Edward B., Jr.

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Interview with Edward B. MacMahon, Jr.

Mitchell Hamline School of Law

William Mitchell Law ReviewVolume 37Issue 5 Journal of the National Security Forum Article 172011Interview with Edward B. MacMahon, Jr.Edward B. MacMahon Jr.Follow this and additional works at: http://open.mitchellhamline.edu/wmlrPart of the Military, War, and Peace Commons, and the National Security Law CommonsThis Article is brought to you for free and open access by the Law Reviewsand Journals at Mitchell Hamline Open Access. It has been accepted forinclusion in William Mitchell Law Review by an authorized administratorof Mitchell Hamline Open Access. For more information, please contactsean.felhofer@mitchellhamline.edu.© Mitchell Hamline School of LawRecommended CitationMacMahon, Edward B. Jr. (2011) "Interview with Edward B. MacMahon, Jr.," William Mitchell Law Review: Vol. 37: Iss. 5, Article 17.Available at: http://open.mitchellhamline.edu/wmlr/vol37/iss5/17INTERVIEW WITH EDWARD B. MACMAHON, JR.Editor's NoteEdward B. MacMahon, Jr. was the lead defense attorney in UnitedStates vs. Moussaoui. The editorial board of the Journal of theNational Security Forum spoke with Mr. MacMahon on April 1, 2011,about his experiences representing Moussaoui. An excerpt fromthat interview is printed below.Q: How did you come to represent Moussaoui?A: I was appointed by the Chief Judge of the U.S. District Court forthe Eastern District of Virginia. He called me at my office and toldme that he had a client for me. He told me I'd work with thepublic defender's office if that's what I chose to do, and that's howit all started. I had been the Chief Judge's law clerk for sometimebefore that.Q: What was your first interaction with Moussaoui like?A: If I remember correctly, we went downstairs. I had two great co-counsel-and later three-on the case. Frank Dunham, JerryZerkin, and Alan Yamamoto. Frank, Jerry, and I went down andmet Moussaoui in the holding facility downstairs at the jail rightbefore he was arraigned. He wanted to know who everyone wasand why they were appointed. He didn't have our understandingof the American legal system. That's for certain.Q: What was that conversation like?A: I don't want to talk about things I discussed with Moussaoui. Istill have a privilege. I haven't seen him in years, but he was nothostile. He was certainly inquisitive about what was going tohappen, where he was, and who all the people were involved. Hespoke English, which made things a lot easier.Q: At the panel discussion you attended at William Mitchell College52081MacMahon: Interview with Edward B. MacMahon, Jr.Published by Mitchell Hamline Open Access, 20112011] INTERVIEW WITH EDWARD B. MACMAHON, JR.of Law in 2006, you had said trying to ascribe a rational thought toMoussaoui was a challenge. What did you mean by that?A: I think what I was saying, and it's only been heightened bydealing with other Muslim defendants in these kinds of cases, isthat they don't think in the same way that normal Americandefendants do. Normal American defendants want to know howthey get out of prison and avoid a serious sentence, much less adeath sentence. Defendants like Moussaoui see these cases from apolitical prism, so they don't make the same kinds of decisions thata regular defendant does.Q. How would you characterize your relationship with Moussaoui?Did it change over the course of representing him?A: Oh sure. Early on, I would go see him in the jail. We'd talk anddiscuss various things. Eventually, vithin the space of a year or so,he elected to terminate us as his lawyers and never spoke to usagain.Q What do you think caused him to do that?A: It was purely a political statement on his behalf not to cooperatewith the American legal system by taking lawyers or having anythingreally to do with it. He later regretted it. He at least claimed hedid. I don't know if he really did or not.Q Why do you think he regretted it?A: He moved to withdraw his plea after the trial. He claimed if hehad known he was going to get a fair trial he would have donethings differently. But that's just another one of his statements.You can credit that however you want.Q. Do you think it would have been possible for him to get a fairtrial?A: The only issue that we tried was whether or not he'd beexecuted. The jury in the Eastern District of Virginia spared hislife. I think that surprised him-and a whole lot of other people-that he got that fair of a trial.52092William Mitchell Law Review, Vol. 37, Iss. 5 [2011], Art. 17http://open.mitchellhamline.edu/wmlr/vol37/iss5/17WILLIAM MITCHELL LAW REVIEWQ: What was your state of mind, at the time, knowing you wererepresenting someone so closely associated with 9/11?A: Well we all knew it was going to be a controversial case, but Iwasn't going to shy away from providing him a defense. The truthis nobody here in the court-the staff, the prosecutors, or thevictims-ever said a cross word or challenged the patriotism orintegrity of any of the people involved in the defense of this case.Q: What was the biggest strategic challenge that you anticipated inrepresenting Moussaoui?A: Once he pled guilty, and essentially admitted that he wasinvolved in 9/11 (which I don't think he was, but he admitted to itanyway), we had to come up with a strategy to defend the case.What do you do when your client pleads guilty and puts his headout there to get it chopped off? What are you going to do as alawyer?Q: What was your theory in the punishment phase of the case?A: To tell the jury the truth. That he wasn't involved in 9/11, nomatter what he said. He would have been a part of 9/11 if alQaeda had invited him, but they didn't. And that they shouldn'texecute anybody based upon their own lie. There were otherissues. There were mental health issues as well. It was acomplicated case in that sense.Q: With all the publicity surrounding the case, how did you remainfocused?A: I didn't pay any attention to the publicity. I tell lawyers that it isa mistake, in a case where there is so much publicity, to worry aboutanything other than your job as a lawyer. We didn't give TVinterviews or anything like that. It helps that the judges down herewouldn't tolerate it if we did. But I don't see that as part of alawyer's function in a case, to be in press conferences and be adistraction.Q: Did this experience strengthen or weaken your confidence in5210 [Vol. 37:53MacMahon: Interview with Edward B. MacMahon, Jr.Published by Mitchell Hamline Open Access, 20112011] INTERVIEW WITH EDWARD B. MACMAHON, JR.the federal criminal justice system? Can al Qaeda defendants betried in federal district court?A: Most certainly they can be tried in federal district court. Theyhave been tried here for years. I don't know anybody that's beeninvolved in these processes that doesn't think they can't have thesetrials so long as there's the political will to hold them. My belief inthe legal system is strengthened in that regard. We hadtremendous problems getting evidence out of the CIA. The CIAcommitted perjury in the Moussaoui case, so in that regard it didnot enhance my view of the criminal justice system when it bangsup against the intelligence community.Q: How did the CIA commit perjury in the Moussaoui case?A: The CIA submitted false affidavits as to whether they hadrecordings of the interrogations of enemy witnesses. They saidthere were none. It later turned out there were only seventy ofthem. There was a whole criminal investigation of that that justwrapped up recently. The government lied to itself. Nobody wasprosecuted but there was an independent prosecutor assigned tothe case. I assume they did a full investigation. I have no idea.They never asked me any questions about it. There was also acongressional investigation, where the CIA said the same thing toCongress about the tapes. The CIA actually destroyed the tapesonce the subpoena had essentially been issued.Q: In hindsight, is there anything you would have done differently?A: No, I don't think so. I think everyone was very fortunate thatMoussaoui got life because the reversal of a death penalty in hiscase would have been certain. It also would have been veryexpensive, time consuming, and probably would have resulted inanother trial that would have put the 9/11 families throughanother round of stress that they didn't need.Q: Why would reversal have been certain?A: Because of the false statements made by the CIA in the case.The U.S. Attorneys withdrew the affidavits after the trial was over.It was plainly material to the case if he had gotten the death52114William Mitchell Law Review, Vol. 37, Iss. 5 [2011], Art. 17http://open.mitchellhamline.edu/wmlr/vol37/iss5/17WILLIAM MITCHELL LAW REVIEWsentence. You can't have a death penalty case in the United Stateswhere the government lies to the judge. You can't have that. Evenin a terrorist case, I don't think we can have that.Q: Would you have any further advice to lawyers representing alQaeda defendants?A: The most important thing, which isn't my specialty, is patiencewith the defendants. You have to try to help them understand thatyou're there to help them. There's such a cultural divide betweenpeople of that political or religious persuasion. I'm a Catholic boy.It's hard to find common ground to think of a way to worktogether. These defendants don't have the same outlook on life asyou and I do. It's not a fair comparison by any means. From myexperience, these guys-the committed ones-have a belief thattheir lives are preordained in such a way that if they're in a certainjail or in a certain place, then that's just God's will. Allah's will. Itdoesn't have anything to do with the lawyers or anything. That typeof worldview makes it that much more difficult to represent thembecause they don't think there's anything you can do for them.Whatever happens to them is what's supposed to happen to them.If they win, they win because it's preordained. If they lose, theylose because it was preordained. There's certainly nothing anAmerican infidel lawyer can do for them.Q: So it seems as if they use the judicial system as a platform forpolitical statements. Do you agree with that assessment?A: It certainly has happened before. It also doesn't mean that weshouldn't give them a fair trial. There are lots of people thatmisuse the judicial process for their own personal reasons orpolitical reasons. It doesn't mean we send them off toGuantanamo or have secret trials.[Vol. 37:552125MacMahon: Interview with Edward B. MacMahon, Jr.Published by Mitchell Hamline Open Access, 2011

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Interview with Edward B. MacMahon, Jr.

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