Come with me to June 30, 2008, the last Monday of the Supreme Court's term. As usual, the Justices have left their most controversial decisions for last. So, at 10 o'clock in the morning on that last Monday in June, the Court announces that it has, by a vote of 8-1, reversed the federal death sentence of confessed Al Qaeda operative Zacarias Moussaoui, the only man ever directly charged domestically with involvement in September 11, 2001 attacks on America.
When that stunning day comes, remember September 13, 2004, when the 4th U.S. Circuit Court of Appeals tried to make lemonade out of this lemon of a case.
In a heavily redacted,, the federal appeals panel agreed Monday to allow Moussaoui to rely for his own defense upon certain censored statements made overseas by his terror bosses, apprehended by coalition forces since September 11, 2001.
The federal appeals judges at the same time reinstated the death penalty into the case, putting Moussaoui back on the hook for the thousands of lives lost in New York, Pennsylvania and at the Pentagon.
The ruling is admirable for getting this long-delayed case back on track.
Moussaoui was first indicted as the "20th Hijacker" amid much fanfare nearly three years ago, on December 11, 2001. Clearly the appeals judges deserve credit for trying to fashion a compromise that both recognizes Moussaoui's constitutional rights while recognizing the government's intense interest in national security.
But there can be no compromise in a capital case - either a defendant gets his rights or he doesn't - so all Monday's court ruling did was to direct this case down a path toward ultimate reversal by the justices who just a few months ago stated quite clearly that they will not automatically defer to the executive branch when it comes to fundamental individual liberties.
The 4th Circuit panel was asked to break a deadlock between prosecutors and U.S. District Judge Leonie M. Brinkema, the poor trial judge who has tried to navigate this case between rocky shores.
Judge Brinkema has repeatedly insisted that the government give Moussaoui some sort of meaningful access to certain captured Al Qaeda leaders - think Khalid Shaikh Mohammad and Ramzi Binalshibh - or else face consequences prosecutors always have to face when they seek, for one reason or another, to deprive a defendant of his right to introduce at trial evidence favorable to his defense.
Judge Brinkema's initial ultimatum - access for Moussaoui or no death penalty for prosecutors - was itself a compromise that favored the government.
Brinkema had the power to simply dismiss the case altogether if the government had continued to refuse access. But the feds tried to get around the judge's olive branch anyway: first, by offering as "access" heavily censored summary "statements" of what Moussaoui's witnesses had said about him and, then, when Brinkema predictably rejected the "statements" as insufficient to protect Moussaoui's rights, by appealing her rulings to the conservative 4th Circuit Court.
The panel Monday ruled that Judge Brinkema had gotten her facts right and her law wrong. The appellate judges ruled that she had properly identified the information from Moussaoui's witnesses as favorable to his defense but that she had been too tough on prosecutors by requiring them to give Moussaoui something more than written summaries from his witnesses.
The appeals court declared that written summaries were, indeed, sufficient in this case to satisfy Moussaoui's rights. This is so, the court ruled, even though there is no independently verifiable way to ensure that the summaries accurate reflect what the witnesses actually said or whether interrogators or federal prosecutors had otherwise influenced the content of the summaries.
What did the witnesses say? Well, people like you and me don't yet know but it is fairly clear even from the redacted order that Moussaoui's bosses aren't exactly pointing the finger of blame at him.
The statements, according to the appeals panel, "tend to exculpate Moussaoui." Of the three mystery witnesses, the first, designated now only as "Witness A," made "several statements" that "tend to exculpate Moussaoui" as to the government's claim that "Moussaoui was to pilot a fifth plane into the White House," the court concluded.
Meanwhile, the appeals judges said "there can be no question that `Witness B' could provide material evidence on behalf of Moussaoui… Witness B… has indicated that Moussaoui's operational knowledge was limited, a fact that is clearly of exculpatory value as to both guilt and penalty."
As for "Witness C," the 4th Circuit ruled that Judge Brinkema was correct to believe that the witness "could provide material evidence because he could support Moussaoui's contention that he was not involved in the September 11 attacks."
Evidentiary conclusions like these convinced Judge Brinkema that the government has no capital case against Moussaoui, which is why she chose to take the death penalty away from prosecutors instead of simply throwing out the case.
The 4th Circuit, on the other hand, declared this half-measure sanction as inappropriately punitive and gave back to the feds the key to the lethal injection room at the prison in Terre Haute, Indiana. This is no small thing. If ever a defendant was likely to get a death penalty regardless of the actual evidence against him, Moussaoui, the bin Laden-loving, confessed terrorist charged with America's worst terror crime, is the guy.
Which is why the 4th Circuit's ruling seems so sensible and yet ends up in such a bad spot.
The problem with this case is not the government's position that it cannot compromise national security in order to give a terrorist his constitutional rights. It is not Moussaoui's position: as a defendant in a capital trial in federal court he is entitled to fundamental rights that help ensure he gets a fair trial. It is not Judge Brinkema's position, namely, that the government even in a time of terror cannot have it both ways. And it is not the 4th Circuit's position, which is that legal problems (like how to give Moussaoui access without blowing off national security) can have practical solutions.
No, the problem with this case is that Moussaoui, a non-citizen and accused terrorist, has no business being tried in federal court as opposed to a military tribunal, where the show-stopping problems that have plagued the case would be quickly dispatched.
Moussaoui is a round peg in a square hole. He doesn't fit into the system and never has. He presents problems the courts cannot solve without cheating him. So if the government doesn't acknowledge and rectify this error now, rest assured the Supreme Court will rectify it years from now, when it rules that Moussaoui was denied his right to a fair trial. And when that day comes, the feds will have no one to blame but themselves.
By Andrew Cohen