A fair trial for Zacarias Moussaoui
By Joanne Mariner
(FindLaw) -- Anyone worried that the Bush administration's approach to fighting terrorism is undermining the American justice system should pay close attention to the case of Zacarias Moussaoui. Moussaoui, charged with conspiring in the September 11 terrorist attacks, is currently being prosecuted in federal district court in Virginia.
Yet because Moussaoui is attempting to mount a defense to the charges against him -- and because the judge presiding over his case is protecting his right to do so -- the government is now considering dropping the federal prosecution. Rather than pursue a fair and impartial public trial, the government may soon opt to detain Moussaoui as an enemy combatant. Moussaoui's prosecution, when and if it occurs, would be held before a military commission.
While the change in venue would substantially limit Moussaoui's procedural protections, it would not affect prosecutors' punishment options. Whether he is tried in federal court or before a military tribunal, Moussaoui faces a possible death sentence.
What brings the venue question to the fore is Moussaoui's insistence that he be granted access to alleged terrorist ringleader Ramzi bin al-Shibh. Moussaoui believes that bin al-Shibh, who is currently in U.S. custody, could provide testimony that would exonerate him.
Last Thursday, in a sealed ruling of critical importance, the trial court reportedly admitted the possible validity of Moussaoui's claim by ordering the government to grant Moussaoui access to bin al-Shibh.
The judge's ruling was no doubt an extremely unwanted shock to the government. Already, commentators have noted that the evidence against Moussaoui seems thin, and that the Moussaoui's criminal indictment reveals little tangible connection between the defendant and the September 11 attacks.
At present, if it dismisses the indictment and moves the case to a military commission, the government will very likely be perceived as implicitly conceding its inability to secure a conviction in federal court. Both here and abroad (since Moussaoui is a French national, the prosecution is of especial interest in Europe), the outcome of the military proceedings will be widely viewed as suspect.
The fair trial 'experiment'
It was not much more than a year ago that the government announced the federal indictment against Moussaoui. The first terrorism prosecution brought post-September 11, the case attested to the government's continuing confidence in the U.S. justice system, and its past success in prosecuting terrorist crimes in the federal courts.
Now, with even U.S. citizens like Yaser Hamdi and Jose Padilla being declared enemy combatants, the trends are markedly less positive. Step by discouraging step, lawmakers and the courts have been accommodating themselves to the Bush Administration's inroads against basic freedoms. Even more disappointingly, some in the media seem to be applauding these developments.
A disappointing reflection of current views can be found in a January 27 Washington Post editorial that derided Moussaoui's federal prosecution as an "experiment."
That's right: in a jarring reversal of presumptions, the Post portray not the advent of military commissions, but rather the prospect of a fair trial in federal court, as the novel experiment.
The fair trial "experiment," if it is to be characterized as such, should at least be recognized as an experiment with a long and honorable history, and, of course, with strong constitutional support. The same cannot be said for trial before a military commission.
Military tribunals have an extremely dubious pedigree. And as the The Washington Post itself pointed out, in an editorial published in March of last year, the rules applicable in military commissions are "a far cry from civilian justice." According to the Post, the commissions' relaxed standards leave open "a serious risk of abuse."
Access to an exculpatory witness
The current debate over transferring Moussaoui's case out of federal court stems from the defendant's efforts to call Ramzi bin al-Shibh as a possible exculpatory witness. (An exculpatory witness is one whom the defendant believes may aid in his defense.) Now, with trial court Judge Leonie Brinkema's recent order to grant Moussaoui access to bin al-Shibh, the debate is likely to intensify.
Bin al-Shibh is allegedly a high-level al Qaeda operative who was involved in coordinating the September 11 attacks. Late last year, he was captured in Pakistan. Currently, he is being held by U.S. government interrogators in an undisclosed location.
In court papers, Moussaoui has argued that bin al-Shibh's testimony could exonerate him. The government, however, vigorously opposed Moussaoui's efforts to gain access to bin al-Shibh, arguing that to disrupt the latter's interrogation could jeopardize the intelligence-gathering process.
Press accounts state that Judge Brinkema's order allowing Moussaoui access to bin al-Shibh will not take effect immediately. Rather, the order will be stayed, allowing the government time to appeal.
The appellate court with jurisdiction over the appeal is the highly conservative U.S. Court of Appeals for the Fourth Circuit, which has been in the news recently for dismissing the habeas corpus petition of alleged enemy combatant Yaser Hamdi. If there's any arguable reason to reverse the district court's ruling, one can rest assured that the Fourth Circuit will find it.
But if indeed the order is confirmed on appeal, and the government still refuses to grant Moussaoui access to bin al-Shibh, Judge Brinkema could potentially dismiss the prosecution. And the prospect of such a showdown is likely to give added impetus to the government's inclination to transfer the case out of federal court. Indeed, to avoid a direct conflict with the trial court, and the bad press that would result, the government might decide to dismiss the prosecution as soon as the appeal is resolved, or even sooner.
Unindicted co-conspirator bin al-Shibh
It should be emphasized that there is nothing novel about Judge Brinkema's ruling on access to bin al-Shibh. Defendants have a basic constitutional right of access to exculpatory witnesses in the government's custody, an integral part of the broader right to present a defense.
Moreover, bin al-Shibh, one should note, is hardly a peripheral figure in the Moussaoui case. Named as one of two unindicted co-conspirators in Moussaoui's indictment, bin al-Shibh is Moussaoui's main, and perhaps only, link to the September 11 attacks.
Bin al-Shibh's importance to the Moussaoui case was underscored at the December 2001 press conference at which Attorney General John Ashcroft announced Moussaoui's indictment. Making seven references to bin al-Shibh, Ashcroft asserted that Moussaoui allegedly worked "in concert" with him "to carry out the September 11 attacks."
Judging by Moussaoui's indictment, the prosecution's main piece of evidence is an August 2001 wire transfer of $14,000 from bin al-Shibh to Moussaoui. And certainly if bin al-Shibh is, as the government claims, the key coordinator of the September 11 attacks, then no one is better positioned to establish or refute Moussaoui's alleged role in the conspiracy.
If Moussaoui's case is transferred to a military commission, neither Moussaoui nor the public may ever hear bin al-Shibh's version of events. But government sources have already reported that bin al-Shibh told interrogators that he and other Al Qaeda conspirators, having lost confident in Moussaoui's discretion, had decided to use him in the hijackings only as a last resort. Such evidence could obviously be very helpful to Moussaoui's case. If Moussaoui was a backup, he may not have been involved in planning the hijackings – part of the essence of the conspiracy charge.
Despite bin al-Shibh's obvious and central relevance to the case, the January 27 Washington Post editorial accuses Moussaoui of "blackmailing" the government by threatening to call bin al-Shibh as a witness – thereby implying that Moussaoui seized upon bin al-Shibh's testimony for purely strategic reasons. But as the facts show, it was the government, not Moussaoui, that established bin al-Shibh as a crucial figure in the proceedings.
The truth is that any defendant in Moussaoui's position – strategic or not, manipulative or not – would try to get access to bin al-Shibh.
Not combatants, criminals
At the same time that the government is considering transferring Moussaoui out of federal court, it has recently garnered successes in other post-September 11 cases. In federal criminal proceedings against John Walker Lindh, the so-called American Taliban, and Richard Reid, better known as the shoe bomber, prosecutors have obtained guilty pleas and long sentences.
These cases provide an interesting and anomalous backdrop for the present controversy, for they show that federal criminal courts are well-equipped to handle cases involving allegations of terrorism.
A comparison with the Reid case is particularly apt, given that Reid, a British national, was himself considered a prime candidate for trial before a military commission. The prospect of Reid's removal to military custody once seemed so likely, in fact, that the district court judge presiding over the Reid case issued an emergency order to block such a transfer.
Reid's sentencing hearing last Thursday was, coincidentally, held on the same day that the Moussaoui court released its ruling on access to bin al-Shibh. At the Reid hearing, while sentencing Reid to three life terms of imprisonment plus 110 additional years, Judge William G. Young vigorously disputed the government's characterization of terrorist suspects as "enemy combatants."
In response to Reid's claim that he was "at war" with the United States, Judge Young said: "You are not an enemy combatant, you are a terrorist." Young continued: "You are not a soldier in any army ... To call you a soldier gives you far too much stature."
In a memorandum opinion issued last year, Young set out the rationale for federal court prosecutions of terrorist suspects in more positive terms. Reminding prosecutors of the importance of subjecting their cases to "formal proof beyond a reasonable doubt," he noted that by bringing a case to trial in a public courtroom, the government "invigorates and strengthens our democracy . . . and demonstrates to the world at large its absolute faith in the strength and independence of our institutions."
It now seems likely that in the coming weeks, or perhaps months, it is the Zacarias Moussaoui prosecution that will test the government's commitment to the democratic institution of the fair and public trial.