The Justice Department's just-unsealed appellate brief in the Zacarias Moussaoui case is pointed and stark and compelling. In fact, it is so persuasive in making the case that the judiciary ought to defer to the executive branch when it comes to the legal war on terrorism that it actually might convince the courts to do precisely the opposite of what government attorneys are asking them to do. The courts might defer so much to the Bush administration that they defer themselves right out of the case.
The government doesn't want to permit Moussaoui, a confessed al-Qaeda operative, to cull the testimony of two of his terror bosses, Khalid Shaikh Muhammed and Ramzi Bin-Alshibh, who are currently in U.S. custody overseas. The feds say that a proposed videotaped deposition of the two, even if monitored closely by the judge, would improperly and illegally interfere with their ongoing interrogation of the men. They are therefore appealing to the 4th U.S. Circuit Court of Appeals a ruling by the trial judge in the case that would have permitted the deposition to proceed.
So sensitive is the information upon which the government's arguments are based that dozens of pages in the 72-page brief are redacted in whole or in part. That's the first thing you notice when you try to get through the document. The next thing is that it took over a month for the document to be unsealed by the judge. And the third thing you notice is that the government uses apocalyptic language to describe what would happen if the nation were ever subjected to a Muhammed or Bin-Alshibh deposition.
There are few shades of gray in the filing; either the courts defer to the Justice and Defense Departments in the interests of national security or chaos will reign in our courts and on the front lines in the war on terror. The first paragraph of the brief sets this tone. "The court below created a wholly unprecedented constitutional right," prosecutors begin, "for a defendant – here, a confessed al Qaeda terrorist – to interrupt the intelligence debriefing of a key member of an enemy force, captured and held overseas in the midst of an ongoing war, in order to secure deposition testimony for trial."
Judges, prosecutors continue, cannot be allowed to "embark on a form of post-hoc micromanagement of warfare as a mere incident to managing their criminal cases." Moussaoui's judge in particular, the feds say, "ignores fundamental limits on the court's authority and provides the defendant a breathtaking right to interfere with the conduct of warfare." In this world, the government brief continues, "particularly as more and more high level al Qaeda leaders are captured, terrorist defendants would have a powerful weapon for putting the Executive to a Hobson's choice; either override military judgments in the field and sacrifice critical intelligent interrogations by providing access for depositions, or else risk the viability of criminal prosecutors for terrorists at home."
It's not that these arguments go too far or are unsupported by law. The government has a legitimate point that the authority of the courts is limited when it comes to cases that arguably impact upon national security. But the Classified Information Procedures Act, the law created to balance national security with the rights of suspects, isn't gospel. While CIPA has worked well in domestic espionage cases, it clearly wasn't designed for a case like Moussaoui's, where vital witnesses for the defense are held overseas and the government maintains that we are at war. And no parade-of-horribles description by the government about what will happen to our war on terror should Moussaoui get his rights can hide the fact that Moussaoui won't get a fair trial if he cannot share with jurors in a meaningful way what his bosses are saying about his role – or lack thereof – in the terror attacks on America.
So instead of simply going along with federal prosecutors and permitting a skewed Moussaoui trial to proceed in federal court in Virginia, the judiciary may take one long look at sweep of the government's argument and rule that neither CIPA nor the Constitution permits a Moussaoui trial right now given the legitimate limitations prosecutors want to place upon the introduction of evidence. Indeed, whether it is the 4th Circuit, which already has issued a ruling that suggests it doesn't want to get involved in the case, or the United States Supreme Court itself, which already has shown us that it can be eminently practical at the expense of legal precedent, there is plenty of reason to believe that the judicial branch will ultimately decide not to tarnish its reputation by forcing this round peg of a case into the square hole of the criminal justice system.
I can clearly see a court ruling on this issue that says something like this (and of course I am omitting the legalese): "You know what? You guys are right. The national security stakes are too high to allow Moussaoui to have a trial like any other capital defendant. And dangerous precedent might be set if a criminal defendant – a terrorist, no less – is permitted under due process principles to affect how terror suspects are handled overseas. You have made some excellent points in your brief about these types of cases and regular constitutional rights don't necessarily mix.
"But we won't be party to a sham trial in which the defendant is not allowed to fairly introduce exculpatory evidence, especially when his life is on the line. So you won't get to have your cake and eat it, too, in our courtrooms anyway; won't get to have a public trial to show off America's fairness while at the same time hobbling Moussaoui's rights in the name of security. You'll have to try Moussaoui yourselves. You have these military tribunals. Moussaoui fits the criteria. The Legal Times, quoting administration officials, reported this week that the tribunals are 'ready to go now, if the president makes the decision.' So you try him. You convict him. You execute him. We don't want any part of it. The case is dismissed without prejudice. You may now transfer Moussaoui into military custody."
Look, few people in the world want more than me to see a public trial of Moussaoui in federal court in Alexandria, Virginia. But I don't want to see Moussaoui tried at the expense of a diminished judiciary at a time when federal judges are the only public officials left who aren't explicitly beholden to the will of an increasingly reactionary majority. And I certainly don't want to see a public Moussaoui trial at the expense of weakened Bill of Rights. The government is right when it argues that Moussaoui can't be treated like you and me and the judiciary ought to say so, just before the courts pull the plug on what would surely be an embarrassing episode in the history of the criminal justice system in America.