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Prosecutors in the Eastern District of Virginia have asked Judge Leonie Brinkema to dismiss all charges against Zacarias Moussaoui, the so-called 20th September 11 hijacker. The unusual move comes with their impatience with her for not making a decision as to how she should sanction them for disobeying her orders.
She told the prosecutors that they must produce three government witnesses for Moussaoui and his attorneys to question. She believed that these witnesses might have information that would exonerate Moussaoui in some measure, or at least provide fertile material for his defense.
Moussaoui’s lawyers also asked for a dismissal. This puts Judge Brinkema in the position of virtually having to dismiss the case. What will happen when she does? The government will appeal the dismissal to the 4th Circuit Court of Appeals in Richmond, which may very well overturn Judge Brinkema’s orders to produce witnesses. Recall that earlier this year the Court said that the government was premature in appealing her order. The court said, defy her, then get back to us.
This is the same Court of Appeals that handed the government a huge win in the case of Yasir Hamdi, the American who has been detained for over a year without being charged with a crime under the rubric of being an "enemy combatant," U.S. District Judge Robert Doumar refused to buy the government’s argument that President Bush can name any citizen an enemy combatant and lock him or her up incommunicado forever. Forever! Doumar was outraged, as we all should be. The 4th Circuit panel was unmoved. Who were they to question the almighty George W., they mused? Their ruling was more political polemic than reasoned law.
That the Moussaoui case should end this way is no good for any one. Surely, immediately upon dismissal the government will spirit Moussaoui away from his jail cell in Alexandria to a military brig somewhere–or perhaps to Guantanamo Bay, Cuba. Once there, he will be forever out of the jurisdiction of any federal court, according to a precedential opinion handed down earlier this year by the U.S. Court of Appeals for the District of Columbia.
If the 4th Circuit agrees with the government and says Moussaoui does not get to question witnesses, the decision may be moot. The government is not likely to ever bring Moussaoui back to federal court. The next we hear about Moussaoui may be news of his summary trial and execution. And the truth about what Moussaoui did or did not do will never see the light of day.
Ashcroft may have gambled and lost in Alexandria. He drew the wrong judge. Almost any other judge on the bench there would have given the government whatever it wanted. But if Judge Brinkema does dismiss the case, it will be a pyrric victory for the justice system, the Bill of Rights, and those who support the rule of law. As long as the courts stand by and let the government seize, detain, try, and execute people under ad hoc rules, none of us is safe, none of us is free.
ELAINE CASSEL practices law in Virginia and the District of Columbia, teachers law and psychology, and follows the Bush regime’s dismantling of the Constitution at Civil Liberties Watch. She can be reached at: firstname.lastname@example.org