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Judge Brinkema v. Ashcroft

We knew this was coming. The government has said all along it will not obey U.S. District Judge Leonie Brinkema’s order to allow Zacarias Moussaoui and his lawyers to interview a key prosecution witness. A witness who may exculpate Moussaoui altogether and lead to the total collapse of the government’s case. The government, having failed so far to nab a big one in its terrorism trials (and the trials exact a terror of sorts on attorneys), desperately wants to try Moussaoui in federal court in Alexandria, Virginia, where, it presumes, a jury will sentence him to death. They may be wrong on that one–as juries are not as quick to give Ashcroft and company the death penalty as he thought they would be.

The last few days have seen frantic attempts by the government to convince the 4th Circuit Court of Appeals sitting in Richmond that Brinkema is wrong, wrong, wrong and must be overturned. When a 3-judge panel of the court ruled that its appeal was not “ripe,” meaning that the appeal should go forward at least until they disobey the judge, Ashcroft and crew asked the court to reconsider its ruling (it refused to do so), and appealed not once, but twice, for the full panel of 12 judges to overturn the 3-judge panel order.

Five of the 12 judges wanted to reverse the 3-judge panel. Judge J. Michael Luttig, a Scalia-clone if ever there was one, said that the majority and Brinkema’s positions would put at risk the government’s efforts to gather intelligence against the enemy (a laughable proposition now that we know how sorry our intelligence professionals are). But Chief Judge William W. Wilkins, a member of the original panel, accused Luttig and the rest of the dissenters of letting their emotions get in the way of the legal argument.

Thwarted by efforts to get the full panel to overturn Judge Brinkema, on July 14, 2003, the government announced that her order is “unacceptable,” and as much as suggested that to obey it would risk national security and lead to additional “murders” of Americans.

The ball is now in Brinkema’s court. Will she dismiss the case? If so, the government will ask Brinkema to stay her order (which she will likely do), and Ashcroft will rush to the 4th Circuit and appeal her dismissal. Then the real fireworks would begin, setting the stage for a showdown in the Supreme Court, regardless of the 4th Circuit’s decision. One does not need a crystal ball, however, to predict how that will turn out. Merely read the decision of the entire panel denying American citizen Yaser Hamdi’s plea that he be either given an attorney, charged, and tried or be released from a navy brig. No dice, said the court. He can stay there forever, or so they seemed to suggest. Whatever the President wants in a time of war, he gets. Bad news, given that this is a war without end.

But what if Brinkema orders a lesser sanction? Say removing the death penalty as a sentencing option? As bloodthirsty as Ashcroft is, that would likely not sit well with him, either, for he will stop at nothing to get death.

Judge Brinkema has been shown amazing courage and wisdom. The gossip in the courthouse (the veracity of which I cannot vouch for) had her volunteering to take the case when all the other judges (all male, interestingly) begged off. She has put up with continuous abuse from Moussaoui and strong criticism from Ashcroft, his prosecutors, and most of the Appeals Court.

This is one time when I am certain that a federal judge is intent on doing justice–a rarity today and an act that will surely not go unpunished.

ELAINE CASSEL practices law in Virginia and the District of Columbia and teaches law and psychology. She is writing a book on civil liberties post 9/11, and keeps an eye on Bush and Ashcroft’s trampling on the Bill of Rights at her Civil Liberties Watch. She would love to write a book about Ashcroft’s jurisprudence, but finds it too depressing. She can be reached at: ecassel1@cox.net