I predict that the alleged "twentieth hijacker" – Zacarias Moussaoui, a French citizen – will be the cause of depriving alien terrorists captured in the United States of a federal criminal trial.
Moussaoui was arrested in Minnesota just before the terrorist attacks of September 11, 2001. As an alien, constitutionally he could have been put before a military tribunal. But in its wisdom, the Department of Justice opted instead for a federal criminal court in Virginia.
I have written in this magazine that the government’s decision was a colossal mistake because of Moussaoui’s own conduct, and because of tactical errors made by the prosecutors. I also wrote that even a worse problem for the prosecutors in the Moussaoui case is that a criminal defendant in a federal court has both constitutional and statutory rights – including the crucially important right to examine witnesses he claims could aid in his defense.
Not surprisingly, the sly Mr. Moussaoui (and whoever may be pulling his strings) has asked for access to Ramzi Binalshibh, a Yemeni alleged to be a mastermind of the September 11th attacks who is named in the Moussaoui indictment as a coconspirator..
Depending on what the judge might rule, I pointed out that the prosecutors could be impaled on the horns of an awful dilemma: The government would have to either comply with Moussaoui’s request for access to Binalshibh, with the concomitant risk of exposing who-knows-what, or face dismissal of its indictment, for failure to comply. At the time, the dilemma was only speculative, though anticipated, and to escape it I argued that the federal prosecutors should "voluntarily terminate the civilian criminal proceeding, and send Moussaoui to a military commission convened at Guantanamo Bay."
Unfortunately, that dilemma is surfacing now, and the government may have to confront it shortly. The New York Times has reported that United States District Judge Leonie M. Brinkema has just made a secret ruling in Moussaoui’s case:As the defendant in a federal criminal case, he has a right – a constitutional right! – to pre-trial access to Binalshibh and, by implication, to other individuals and documents which might aid in Moussaoui’s defense.
Consider the implications of this ruling, not just for Moussaoui, but for any alleged terrorist indicted in a federal criminal court. The full array of constitutional and statutory rights must be provided: counsel, search warrants, full pre-trial discovery, confrontation by witnesses against him – and much more. There is simply no way these many procedural safeguards can be provided to an alleged terrorist without the compromise – not the possible compromise, but the actual compromise – of national security.
The government has appealed to the United States Court of Appeals for the Fourth Circuit, the body that recently handed the federal prosecutors of "enemy combatant" Yaser Hamdi a big win, ruling that he could be held indefinitely without a lawyer or any other procedural rights. But Moussaoui is not Hamdi. He, though an American citizen, was captured not in the United States, but rather during the fighting in Afghanistan. Moussaoui was arrested in Minnesota, far from Kabul, and that distance is measured not in miles but in constitutional and statutory rights. While the Fourth Circuit accommodated the government in the Hamdi case, it almost certainly will view Moussaoui differently because there is no way that court, or any other, can legitimately distinguish the constitutional and statutory rights of an alleged terrorist from those of an accused drug dealer or tax evader.
Sooner or later the government will have to face this music. When it does, the indictment against Moussaoui will be dismissed, he will be transferred to military custody, and tried in a military tribunal. While that process will suffice to deal with all alleged terrorists who are aliens – few, if any, of whom will be ever be tried in federal criminal courts again – the government’s problem doesn’t end there. The Moussaoui tactic can be employed by alleged terrorists who are not aliens, like the Oregon Six, the Lackawanna Six, and all the other citizen-terrorists yet to be unearthed. The only solution for this aspect of the terrorist-trial problem is for the President to amend his Executive Order and confer military tribunal jurisdiction over American citizens.
A shocking idea? No. At least one of the World War II Nazi saboteurs was a citizen, and a military tribunal – with the blessing of the Supreme Court of the United States – made short shrift of him.