Fair Trial For Terrorist?

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

Just as it did last year in the Supreme Court cases involving "enemy combatants" and the detainees at Guantanamo Bay, the executive branch once again is defending low ground in the battle over what the Constitution means in this time of terror. Among other dubious assertions, the White House and Justice Department have told the Supreme Court that there ought to be a "national security" exemption to the Sixth Amendment that would allow prosecutors in our federal courts to try and then execute criminal defendants without giving them a reasonable opportunity to use information from witnesses who might help their cause.

The implications of this argument are enormous, the rights involved are cornerstones of American law, the stakes could not be higher for Moussaoui, and lower federal court judges sorely need more guidance from the high court on an issue that is sure to rise again in the open-ended war on terror. The justices should gladly embrace the case and use it to further define and refine the contours of the government's war powers when they are used domestically against defendants in our federal courts. The Court should grant review not because Moussaoui is worthy of sympathy, or rescue, but because the issues in his case easily transcend his cause.

The story of how the case got to this crucial point is a long and complicated one.
After being arrested in Minnesota about a month before the attacks on America, Moussaoui was indicted in December 2001 on terror and conspiracy charges. Since then, we have learned, definitely, that he was not (as he was initially and vociferously labeled) the "20th hijacker" of September 11, 2001. But we also have learned-- from his own mouth in open court in 2002-- that he is a devoted member of al Qaeda and that he may have been involved in some sort of post-9/11 terror plot. Finally, we have learned, from Moussaoui's trial judge and other sources, that Moussaoui's captured al Qaeda bosses, including Ramzi Binalshibh and Khalid Shaikh Mohammed, have given intelligence officials "material" and "relevant" information that very likely would help him at trial.

When Moussaoui's attorneys justifiably asked for access to these witnesses, they were rebuffed by the feds, who reasonably argued that the al Qaeda honchos were too valuable as intelligence assets to be trotted out of their "secured, undisclosed locations" and interrogated by defense attorneys. But when U.S. District Judge Leonie M. Brinkema then ordered the feds to arrange for a carefully-scripted video-conference of the detainees, the government also refused. The judge then, as a sanction for what she ruled was a violation of Moussaoui's fair trial rights, voided the death penalty option in the case and also ruled that prosecutors could not offer certain dramatic, emotional testimony in the case about the events of September 11, 2001.

The government appealed this ruling and last year the 4th U.S. Circuit Court of Appeals tried to fashion its own compromise. The appeals panel, too, recognized what the trial judge had found-the Mousssaoui's rights to present a defense would be impaired by the government's refusal to provide access to his bosses. But the conservative court also declared that federal prosecutors still were entitled to seek the death penalty against Moussaoui and that they could solve the problem of witness access by provided the defense with certain "summaries" of the information the captured Al Qaeda bosses had provided to intelligence officials. The court ordered Moussaoui, prosecutors and Judge Brinkema to work out a solution involving the summaries. That wasn't good enough for Moussaoui (and it's not clear that Judge Brinkema was delighted with the idea, either) and so this appeal ensued.

The nature and scope of the "summaries" are at the heart of the fight. Moussaoui's lawyers say that the Constitution never has permitted the government to substitute real, live witnesses-or verbatim written or videotaped or audiotaped statements by witnesses-for what defense attorneys wryly (but accurately) describe as "summaries" that "are themselves summaries of classified documents containing information from unnamed, unsworn Government agents purporting to report unsworn, incomplete, non-verbatim accounts of what Government agents say those defense witnesses have said under circumstances as yet unknown to the defense."

Pointing to the history of the Sixth Amendment's "Compulsory Process" clause, Moussaoui's attorneys argue that the founders themselves never contemplated that a capital defendant would have to rely upon "reports by unidentified (redacted) officials of what the witnesses would say." They cite a ruling by Chief Justice John Marshall in which declared, 200 years ago, that the very right Moussaoui asserts "must be held sacred by the courts" and cannot be compromised or balanced even by assertions of "national security" interests.

The defense also argues that the government's position, and the Fourth Circuit ruling, would deprive Moussaoui of his constitutional right to effective counsel, since the "summaries" would give defense attorneys no chance to truly determine what the Al Qaeda honchos actually said as it relates to Moussaoui. Because these captives were interrogated for intelligence reasons only, the defense continues, they by definition were not questioned in a manner consistent with federal discovery and procedural rules. And the justices cannot wait for Moussaoui's trial to unfold its inevitable conclusion of conviction, defense attorneys say, before remedying the problem. There is no point in going through with a fatally-flawed trial, in other words, because it would just waste everyone's time, money and energy-not to mention disclose certain important intelligence information as well.

What does the government say? Plenty-and plenty of what prosecutors say run counter to long-established constitutional law (not to mention common sense). The feds do not want the Supreme Court to intervene now because, they say, many of the issues Moussaoui raises may be made moot either by the ultimate compromise on the "summaries' or by the trial itself. He might be acquitted, prosecutors cynically contend, and even if convicted might not receive the death penalty. Right. A confessed Al Qaeda guy, apprehended because he was trying to learn how to fly planes without learning how to take off and land, without the ability to present a decent defense, is going to get a break with a jury seated within miles of the Pentagon. If it weren't such a serious topic, the argument almost would be laughable.

The feds also contend that, even using the summaries, Moussaoui "will have the opportunity to place before the jury the substance of the testimony" he "otherwise seeks to procure" and that, anyway, the summaries need not be the precise equivalent of the desired testimony to ensure that Moussaoui's interests are adequately protected. Besides, the feds argue, despite what both Judge Brinkema and the appeals panel found, Moussaoui might now want to use the "summaries" anyway. How would you like to have your lawyer work under those standards when trying to defend you in a capital case? How would you like to have to rely solely upon what your main witnesses says (in captivity) to an intelligence official whose interests are so far removed from your own (and from prosecutors, for that matter) that they might as well be speaking in tongues?

The feds argue that the Supreme Court (and any other court) should not force the government to "choose between prosecuting past terrorist attacks and preventing future terrorist attacks." This is a false choice and the feds know it. Because Moussaoui is not an American citizen, he easily could be transferred out of civilian custody and brought before a military tribunal. In fact, he is precisely the type of quasi-criminal, quasi-terrorist that President Bush had in mind when he created the tribunals years ago. And finally prosecutors argue that Moussaoui ought to be grateful for any information he is able to glean from the "summaries" because the "summaries" would never had existed but for the exercise of the President's war powers-the very power Moussaoui is challenging.

Years ago, the government wanted to turn the Moussaoui trial into a show trial so that the world could see how fair American justice could be even to the country's sworn enemy. But it is now clear, in word and deed, that the feds want this particular show trial to be rigged grossly in their favor and are willing to gut a core Constitutional right in order to do so. Last June, the Supreme Court told the executive branch that the war on terror is "not a blank check" on presidential power. It's time that the Justices again stopped payment on one of those checks. And the first step in that process would be to accept jurisdiction of United States v. Moussaoui, the first, and still most important, terror law case to arise after the Twin Towers fell.