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CounterPunch
February
4, 2003
A Test for Democracy
A Fair Trial
for Moussaoui?
by JOANNE MARINER
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.
As Edward Lazarus chronicled in a December
2001 column for this site, 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.
Joanne Mariner
is a human rights llawyer in New York. This article was originally
published by Writ
FindLaw. She can be reached at: mariner@counterpunch.org.
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