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Send Moussaoui South By: Henry Mark Holzer
FrontPageMagazine.com | Thursday, November 21, 2002


There are fifteen United States citizens accused of having ties to terrorism who are being held by the authorities: Taliban John Walker Lindh, The Portland Six, The Buffalo Six, Yaser Hamdi (“Taliban II”) and Jose Padilla.  Even though Lindh is already in prison and the other fourteen are certainly headed there, in one sense they’re lucky: Being American citizens, none of them could be tried by a military commission – where the death penalty would be more likely than in a federal court.

Zacarias Moussaoui – the alleged “twentieth hijacker” – a French citizen, who has been indicted for conspiring to blow up the Pentagon and the World Trade Center, has been equally lucky.

So far.

When the alien Moussaoui was arrested in the United States, the government, for reasons best known to itself, opted not to put him before a military commission.  (Even though it could have, pursuant to President Bush’s Military Order of November 13, 2001.)

Instead, the Department of Justice indicted Moussaoui in a Virginia federal court.  Not surprisingly, that decision has proven to be a mistake.  An admitted member of al-Qaeda, Moussaoui, who denies involvement in the terrorist attacks, insisted on representing himself – raising questions, among others, of his mental capacity.  Moussaoui underwent a psychiatric examination that found him competent, but his mother, not satisfied, demanded another.  When the trial judge appointed lawyers to assist Moussaoui, he tried to fire them.  He pleaded guilty, only to have the plea withdrawn.  In open court, Moussaoui launched tirades against the United States, in which he attacked this country and our criminal justice system.  The F.B.I. inadvertently handed Moussaoui a sheaf of classified documents, which had to be speedily retrieved.

Much worse than these missteps, however, has been Moussaoui’s requests, in the words of The New York Times “for access to witnesses and evidence that, his court-appointed lawyers say, could aid his defense.”  For example, Moussaoui wants access to captured al-Qaeda terrorists, including Rammzi bin al-Shibh, an alleged Yemeni mastermind of the September 11, 2001 terrorist attacks on the United States, whose name appears throughout the indictment against Moussaoui.  Under the Federal Rules of Criminal Procedure and case-law interpretations that govern Moussaoui’s prosecution, he is entitled not only to witnesses who could be important to his defense, but to documents as well.  The trial judge has expressed some sympathy for Moussaoui’s requests and has already directed the government to make available some of the witnesses.

Faced with the farce that the civilian trial of Moussaoui has turned into, as well as the dilemma of either complying with his discovery demands and the concomitant exposure of sensitive matters, or having its federal district court prosecution collapse or be dismissed, there is only one way out for the government: It should voluntary terminate the civilian criminal proceeding, and send Moussaoui  to a military commission convened at Guantanamo Bay.

The argument for that change in forum and venue is compelling: Terminating the Virginia federal proceedings and moving the trial to a Military Commission at Guantanamo Bay would instantly eliminate every possibility that sensitive information could be exposed publicly.  Department of Defense regulations promulgated pursuant to the Military Commissions Order allow for trials to be closed when necessary to protect national security. 

Lest anyone – especially the bleeding-heart apologists for criminal defendants in general and terrorists in particular – be concerned about Mr. Moussaoui’s “rights,” three important points must be understood.  First, President Bush’s order creating military commissions rests on a solid constitutional footing.  Second, the military commissions’ jurisdiction extends only to aliens, not citizens – and Moussaoui is an alien.  Lastly, to the extent that the defendant facing a military commission is entitled to any due process of law, there is plenty.  Indeed, the substance of military commission protections is not too different from that afforded defendants under the United States Uniform Code of Military Justice, under which all our uniformed service personnel are tried. 

Essentially,

·        The presumption of innocence applies;

·        Proof of guilt must be established beyond a reasonable doubt;

·        All evidence the prosecution intends to use at trial must be provided to the defendant before trial, including evidence which exculpates him;

·        No adverse inferences can be drawn from the defendant’s failure to testify;

·        The defendant is entitled to a military lawyer, and to choose another;

·        A two-thirds vote is required for conviction;

·        A unanimous vote is required for the death penalty;

·        There are two levels of appellate review, one of which can (but need not) include civilian judges.

Given the worsening problems facing the government in the Virginia federal court, given the undeniable benefits for our country in the form of military commissions, and given the significant procedural protections available for the accused, Zacarias Moussaoui should soon be heading south.


Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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