FacebookTwitterGoogle+RedditEmail

Monsieur Moussaoui

by JOANNE MARINER

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.

Foreigners Only

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: mariner@counterpunch.org.

More articles by:

JOANNE MARINER is a human rights lawyer living in New York and Paris.

CounterPunch Magazine

minimag-edit

bernie-the-sandernistas-cover-344x550

zen economics

June 22, 2017
Jason Hirthler
Invisible Empire Beneath the Radar, Above Suspicion
Ken Levy
Sorry, But It’s Entirely the Right’s Fault
John Laforge
Fukushima’s Radiation Will Poison Food “for Decades,” Study Finds
Ann Garrison
Jeremy Corbyn, the Labour Party, and the UK’s Socialist Surge
Phillip Doe
Big Oil in the Rocky Mountain State: the Overwhelming Tawdriness of Government in Colorado
Howard Lisnoff
The Spiritual Death of Ongoing War
Stephen Cooper
Civilized, Constitution-Loving Californians Will Continue Capital Punishment Fight
Bruno Rodríguez Parrilla
Cuba Will Not Bow to Trump’s Threats
Ramzy Baroud
Israel vs. the United Nations: The Nikki Haley Doctrine
Tyler Wilch
The Political Theology of US Drone Warfare
Colin Todhunter
A Grain of Truth: RCEP and the Corporate Hijack of Indian Agriculture
Robert Koehler
When the Detainee is American…
Jeff Berg
Our No Trump Contract
Faiza Shaheen
London Fire Fuels Movement to Challenge Inequality in UK
Rob Seimetz
Sorry I Am Not Sorry: A Letter From Millennials to Baby Boomers
June 21, 2017
Jim Kavanagh
Resist This: the United States is at War With Syria
James Ridgeway
Good Agent, Bad Agent: Robert Mueller and 9-11
Diana Johnstone
The Single Party French State … as the Majority of Voters Abstain
Ted Rall
Democrats Want to Lose the 2020 Election
Kathy Kelly
“Would You Like a Drink of Water?” Please Ask a Yemeni Child
Russell Mokhiber
Sen. Joe Manchin Says “No” to Single-Payer, While Lindsay Graham Floats Single-Payer for Sick People
Ralph Nader
Closing Democracy’s Doors Until the People Open Them
Binoy Kampmark
Barclays in Hot Water: The Qatar Connection
Jesse Jackson
Trump Ratchets Up the Use of Guns, Bombs, Troops, and Insults
N.D. Jayaprakash
No More Con Games: Abolish Nuclear Weapons Now! (Part Four)
David Busch
The Kingdom of Pence–and His League of Flaming Demons–is Upon Us
Stephen Cooper
How John Steinbeck’s “In Dubious Battle” Helps Us Navigate Social Discord
Madis Senner
The Roots of America’s Identity and Our Political Divide are Buried Deep in the Land
June 20, 2017
Ajamu Baraka
The Body Count Rises in the U.S. War Against Black People
Gary Leupp
Russia’s Calm, But Firm, Response to the US Shooting Down a Syrian Fighter Jet
Maxim Nikolenko
Beating Oliver Stone: the Media’s Spin on the Putin Interviews
Michael J. Sainato
Philando Castile and the Self Righteous Cloak of White Privilege
John W. Whitehead
The Militarized Police State Opens Fire
Peter Crowley
The Groundhog Days of Terrorism
Norman Solomon
Behind the Media Surge Against Bernie Sanders
Pauline Murphy
Friedrich Engels: a Tourist In Ireland
David Swanson
The Unifying Force of War Abolition
Louisa Willcox
Senators Bernie Sanders, Cory Booker, Tom Udall Back Tribes in Grizzly Fight
John Stanton
Mass Incarceration, Prison Labor in the United States
Robert Fisk
Did Trump Denounce Qatar Over Failed Business Deals?
Medea Benjamin
America Will Regret Helping Saudi Arabia Bomb Yemen
Brian Addison
Los Angeles County Data Shows Startling Surge in Youth, Latino Homelessness
Native News Online
Betraying Indian Country: How Grizzly Delisting Exposes Trump and Zinke’s Assault on Tribal Sovereignty and Treaty Rights
Stephen Martin
A Tragic Inferno in London Reflects the Terrorism of the Global Free Market
Debadityo Sinha
Think Like a River
FacebookTwitterGoogle+RedditEmail