A Secret Trial For Moussaoui?

Lady Gaga performs at the Glastonbury festival in Somerset, Friday June 26 2009.
Attorney Andrew Cohen analyzes legal issues for CBS News and

If you are licking your chops in anticipation of a high-profile trial in federal court next year for Zacarias Moussaoui, an alleged conspirator in the attacks on America, you may be disappointed. There is a strong chance now that Moussaoui never will be put on trial in our civilian courts; that instead he will simply be transferred into military custody and prosecuted before a military tribunal. There are no legal impediments to such a dramatic move and the administration can make a reasonable political case for it as well.

The Bush administration faces the prospect of transferring Moussaoui from federal custody to a military brig because his constitutional rights as a capital defendant appear to be conflicting more and more directly with the government's ongoing intelligence-gathering operations. As CBS News Correspondent Jim Stewart first reported Wednesday, that conflict may soon reach its moment of truth because of the capture of al Qaeda honcho Ramzi bin-Alshihb, the man allegedly involved at the highest levels in the plan to destroy the World Trade Center and Pentagon.

Now that the feds have bin-Alshihb in their custody and control, Moussaoui has a constitutional right either to confront him as a prosecution witness or simply rely upon his testimony at trial as an exculpatory witness. Either way, though, the government must make bin-Alshihb available in some way to Moussaoui and/or his lawyers. And it's not hard to understand why Moussaoui would want to touch base with bin-Alshihb. If bin-Alshihb really was the key 9/11 planner, he would be in a wonderful position to explain or refute Moussaoui's alleged role in that conspiracy.

In most criminal cases, this duty poses no problem for prosecutors – they simply work it out with defense attorneys and the judge. In this case, however, making bin-Alshihb available to the defendant presents a huge problem. Bin-Alshihb isn't just a common co-conspirator, after all; he's an enormous intelligence asset and, indeed, the Justice Department says it won't make him available because he is currently being interrogated in a secret location. Prosecutors are perfectly within their powers to refuse to make bin-Alshihb available, but the price of that recalcitrance may be to drop the charges against Moussaoui. He simply cannot be fairly tried under the Constitution if prosecutors withhold his access to such an important witness.

Prosecutors know it. Moussaoui's attorneys know it. And U.S. District Judge Leonie M. Brinkema knows it, too, which may be why she has delayed the trial in this case from September 2002 to January 2003, and now again to May 2003. It would be one thing, of course, if dropping the charges against Moussaoui for this reason forced the government to let him go. If that were truly the alternative result here, the government surely would figure out a way to make bin-Alshihb available in some way to Moussaoui. Perhaps bin-Alshihb could be made available with Moussaoui's attorneys in the presence of a military official (to make sure no secret, coded messages were passed) and with a special master or magistrate assigned by the court (to make sure the interview is on the up and up). And such a scenario still may be the solution to this intractable legal problem.

But the White House has another option in the Moussaoui case that isn't typically available in capital cases. And so the Justice Department doesn't have to bend nearly as far to meet its constitutional duties while at the same time achieving its prosecutorial objective. Since Moussaoui is not a US citizen, since "jeopardy" for purposes of the "double jeopardy" clause of the Constitution has not yet attached in his case, and since the government already has labeled him a terrorist, law enforcement officials simply could hand Moussaoui over to the military for a tribunal proceeding authorized last year by an executive order from President Bush.

A tribunal proceeding for Moussaoui would – in one swift, bold stroke – obliterate the legal problem of what to do with bin-Alshihb. It would do so either by precluding Moussaoui's right to interview his purported al Qaeda buddy or permitting a limited interview to take place in such secret surroundings that the government's intelligence-related concerns would be sated. Also, a tribunal proceeding would not be public so the details of bin-Alshihb's testimony, if used, never would see the light of day. And, obviously, because of the procedural rules in place for tribunal proceedings, the government would be even more likely than it already is to gain a favorable result after trial.

That's the legal dynamic. The political dynamic is a bit cloudier, but by no means tricky for the White House. It's true that the government might take an initial public relations hit if Moussaoui suddenly were to disappear from jail one night and turn up in a locked cell at the Norfolk Naval Base in Virginia. After all, these same prosecutors for nearly one year now have been preaching the importance of bringing Moussaoui to justice in public in a federal court where he will be judged by Americans living in the shadow of the Pentagon. To suddenly turn around and say "never mind" probably would give ammunition to the administration's critics who say that Moussaoui is destined to receive only a pretense of justice.

But there certainly was no great public outcry this summer when the government settled its grievances with John Walker Lindh, the American Taliban, because the feds didn't want to make available to his attorneys the soldiers who captured him. And most folks, I suspect, will be fairly delighted if Moussaoui disappears from public view and is judged by the military in a closed proceeding. The administration has told us since last Sept. 11 that it would use every process and procedure in its arsenal to achieve its objectives. Taking Moussaoui out of the federal court system in the middle of his case would be one of the clearest examples yet that prosecutors meant what they said.

By Andrew Cohen