The U.S. Fourth Circuit Court of Appeals, sitting in Richmond, Virginia, stayed true to its tradition of being to the right of the Supreme Court in the decision handed down on September 13, 2004, in the case of the United States vs. Zacarias Moussaoui.
The prosecution of Moussaoui in the Alexandria, Virginia federal court has been a tortured one–not in the sense of physically abusing the defendant, but in the prosecutor’s abuse of the law and legal process.
When we last wrote about this case several months ago, trial Judge Leonie Brinkema had finally caved in to the government’s insistence that national security precluded them from producing “enemy combatant witnesses for Moussaoui’s lawyers to question”, either in pretrial depositions or at the trial of the case. The government claims that to do so would risk the witnesses, intelligence value and even put the nation at risk of another terrorist attack.
So, Brinkema ordered that the government could not seek the death penalty against Moussaoui because she had determined from the government’s own reports of what the witnesses would say, that they might testify in a way that would negate a finding that Moussaoui was involved in the September 11 terrorist attacks.
If you listened to news reports about this ruling, you probably only heard that the appellate court ruled that Moussaoui could send written questions to the witnesses. He could use their answers to his questions at his trial if he chose. Of course, the government could produce its own version of witness statements. (Any guess as to which party would have the best testimony?) It was not widely reported that the court overruled Brinkema,s order about the death penalty.
Every American who thinks the judiciary is a co-equal branch of government that will protect its citizens from overreaching and illegal executive power ought to read the appellate opinion. The court buys the “war on terror” excuse, and backs off from interfering with the executive conduct of war. We should not, indeed we must not, it says, argue when the government tells us that it is withholding evidence in order to protect us.
To his credit, Judge Gregory dissented to the part of the majority opinion that put the death penalty back in play. Accepting the prosecutors’ arguments about protecting national security, he still thought it a little unfair that a man could be put to death when his sixth amendment right to confront and cross-examine witnesses was so obviously violated.
Ah, but we live in different times. The Fourth Circuit agreed with the government’s insistence on throwing out the rule book–the Constitution and the Rules of Criminal Procedure. The government does not have to produce its game plan in the form of normal discovery. Its team of prosecutors can audible all the way to the end zone of the death house. The court stopped short of throwing in the towel and discarding all of its yellow flags. Perhaps it will throw down one or two for you someday, the way it has for Moussaoui. But the penalties for the government violation of the rules are meager–like a five-yard penalty for an unsportsmanlike conduct play that ought to get the government players ejected from the game.
The opinion admits that it the court is going out of its way to make the close calls all in favor of the government. With officials like these on the field, Moussaoui’s legal team must surely be casting an eye to officials in the booth.
Instant replay before a full panel of justices, perhaps? Maybe, but a petition for a rehearing en banc is likely to turn out like it did for Yaser Hamdi. The full panel went even further than the three-judge court in marching to the war drums of President Bush.
Ultimately, Moussaoui may appeal to the ultimate arbiter–the Supreme Court, the NFL of the judiciary branch. Perhaps it will have a more measured response to the game as it is being played in Alexandria. Maybe it will have some thought for the future of the game if the rules are allowed to be ad hoc and arbitrary.
The Supreme Court told this very appellate court that it went too far in the case of Yaser Hamdi, allowing as how he ought to have a lawyer and be able at the minimum to have his day in court. And now, Hamdi is going to be released, in exchange for his giving up U.S. citizenship and returning to Saudi Arabia. Prosecutors count on Americans, short memory span to not recall their dire predictions, even to the Supreme Court earlier this year, that Hamdi was a grave threat to national security.
Maybe the Supreme Court will step in for Zacarias Moussaoui–and all of us–and hold the government to the decency and fair play demanded by the Constitution. It bears repeating that what the prosecutors do to Moussaoui, with the court’s blessing, they will do to the rest of us.
It will only be a matter of time.
ELAINE CASSEL practices law in Virginia and the District of Columbia, teaches law and psychology, and follows the Bush regime’s dismantling of the Constitution at Civil Liberties Watch. Her book, The War on Civil Liberties: How Bush and Ashcroft Have Dismantled the Bill of Rights, will be published by Lawrence Hill this summer. She can be reached at: firstname.lastname@example.org