It may turn out that the fatal weakness in Zacarias Moussaoui’s case is not that the defendant is an admitted member of al Qaeda, but rather that he’s French.
Moussaoui, who is charged with conspiring to carry out the September 11 terrorist attacks, is on trial for his life. Whether his prosecution should remain in federal court or be transferred to Guantanamo for substandard proceedings before a military commission is the question now facing the Bush administration.
It is, for the time being at least, a political decision more than a legal one. And from Moussaoui’s perspective the political odds are not encouraging.
No Americans are being held on Guantanamo, nor will they be. Although the Bush administration has detained two American citizens indefinitely as "enemy combatants," the two are held on U.S. territory. Unlike other only such detainees, they do not face the prospect of prosecution before a military commission.
American citizens, even the most unrepentant terrorists, are excluded from military commission trials by the terms of the presidential order creating the commissions. Although the key WWII-era Supreme Court precedent on military commissions drew no legal distinction between Americans and foreigners, the Bush administration was savvy enough to recognize that the distinction would resonate with the public. Substandard justice is somehow more noticeable and more galling when it affects a compatriot.
Ever since it became known that British and Australian detainees were being held on Guantanamo, the two countries’ media have featured a steady stream of news and critical commentary about the Guantanamo substitute for justice. But it was earlier this month, with the announcement that two Britons and one Australian were among the first six detainees deemed eligible for trial by military commission, that public disapproval of the U.S. approach reached critical mass.
Very quickly, the same sorts of political pressures that shielded American citizens from military proceedings began to work on behalf of the British. 163 members of the British parliament signed a petition calling on the U.S. government to repatriate the two Britons facing trial. Tony Blair, President Bush’s staunchest ally in the war on Iraq, was equally insistent, raising the issue of his country’s detainees in a mid-July meeting with Bush.
And so it happened that last week American officials told the British government that the United States would give special treatment to the two British citizens facing military trials. Most critically, they promised that the U.S. would not to seek the death penalty against the two. The officials also assured British representatives that, unlike other defendants, the British pair did not have to worry about their conversations with defense lawyers being monitored. In addition, their trials would be open to reporters, and the two men would be allowed to consult with British lawyers, not just Americans.
The administration also agreed that the Australians on Guantanamo (whose country, like Britain, contributed troops for the invasion of Iraq) would receive similarly preferential treatment.
While the decision to improve the rules of the proceedings is good news for the British and Australians, its message to the rest of the world is provocatively clear. Military commissions are not fit for our own people; they are not suitable for our close allies, at least in their unadulterated form, but they’re good enough for everybody else.
What Quality of Justice for Moussaoui?
Zacarias Moussaoui, who is currently being prosecuted in federal court in Virginia, may soon be joining the unlucky ones. Even as events conspired to help protect British and Australian detainees from military proceedings, a contrary dynamic was developing in his case.
As a critical component of his defense, Moussaoui wants to depose Ramzi bin al-Shibh, an al Qaeda operative currently held by the U.S. military in an unknown location abroad. (One should note, at least in passing, that bin al-Shibh has been "disappeared," an abhorrent abuse no matter who is subject to it.)
Even a cursory review of Moussaoui’s indictment reveals bin al-Shibh’s central importance to the case. Only via bin al-Shibh, who once shared an apartment with hijacker Mohammed Atta and who wired money to Moussaoui, does the indictment link Moussaoui to the September 11 conspirators. (The other "overt acts" mentioned in the indictment — taking flying lessons, owning a knife, joining a gym provide only circumstantial evidence of Moussaoui’s involvement in the plot.)
Bin al-Shibh could be the source of crucial exculpatory testimony that could save Moussaoui’s life. It has been reported that during interrogation abroad bin al-Shibh said that Moussaoui, though a member of al Qaeda, was not involved in the September 11 plot. Moussaoui himself has repeatedly claimed that bin al-Shibh can attest to his lack of participation in the conspiracy.
Nonetheless, citing national security risks, the government refuses to allow Moussaoui to question bin al-Shibh. Although the Sixth Amendment to the Constitution clearly requires that such questioning be permitted, the prosecution has stated that it will not comply with a court order giving Moussaoui access to question bin al-Shibh via videoconference.
Given the prosecution’s recalcitrance, the district court presiding over the Moussaoui case may be forced to dismiss the indictment. This may be all that the government needs to transfer his case to a military commission.
To the extent that a defendant’s nationality now determines the quality of justice due him, Moussaoui — citizen of a country that, notoriously, did not support the U.S. war on Iraq — loses out. (Indeed, the jingoistic Wall Street Journal published an editorial calling for Moussaoui’s trial before a military commission that described the fact of his French citizenship as "an added bonus.")
But in making this choice, the administration should be aware of its ultimate consequences. If Moussaoui, having been denied access to potentially exculpatory testimony, were to be sentenced to death by a military tribunal, France would not be alone in condemning the verdict. The entire world would condemn it, and rightly so.
JOANNE MARINER is a human rights attorney and regular CounterPunch contributor. She is the author of No Escape: Male Rape in US Prisons published by Human Rights Watch. An earlier version of this piece appeared in FindLaw’s Writ. She can be reached at: firstname.lastname@example.org.