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Moussaoui Means Mayhem For System

When terror suspect Zacarias Moussaoui was charged just three months after the terror attacks on America, the Justice Department trumpeted the move as a sign that the government and the federal courts could effectively respond to terrorism here at home. Turns out the feds were wrong. The Moussaoui case in particular has raised fundamental questions about whether constitutional rights and the fight against terrorism are inherently compatible. And these questions are growing, not diminishing, as his trial date grows near.

U.S. v. Moussaoui already has a tortuous past. But the latest legal conundrum it has generated is by far the most significant. It might prompt the Bush administration to give up on prosecuting the man who wanted to learn to fly planes without learning how to take off or land. And it might force the government to radically alter the way it handles terror suspects. Arrested in Minnesota one month before Sept. 11, 2001, Moussaoui was a dismal failure in his self-proclaimed war against America. But as a criminal defendant, he has jolted the government in ways even he probably could never imagine.

So what happened? According to the New York Times, U.S. District Judge Leonie M. Brinkema ruled in secret last week that Moussaoui, as a federal defendant, has a constitutional right to some sort of pre-trial access to Ramzi Binalshibh, the reputed al Qaeda mastermind of the World Trade Center and Pentagon attacks.

Judge Brinkema's ruling came as a surprise to no one and as a purely legal matter is a no-brainer. Of course a capital defendant has a constitutional right to conduct discovery that might help provide him with a defense. To hold otherwise would be to deny such a defendant fundamental fair trial rights.

But there is nothing about the legal fight against terrorism that is "purely" legal. The terrorists at war with America present military, diplomatic, political, and legal problems for the government and Moussaoui finds himself at the intersection where they all meet. If Moussaoui sees sunshine on the "law" side of this street, the government contends that for military, political and national security reasons the law cannot be strictly applied in his case. The feds thus don't want to make Binalshibh available to anyone for anything, lest their intense, secret, and ongoing interrogations of him lose their effectiveness.

So what we have, then, is a good, old-fashioned standoff between two of the three branches of government. The courts are likely to continue to say to the government: You want to try Moussaoui in a capital case? Fine. You are going to obey the rules. And the government is likely to continue to say to the courts: We want to try Moussaoui without jeopardizing vital intelligence assets and we ought to be able to make that decision, your honor, not you. The only thing that makes this a breakable logjam is that Moussaoui's fate still is controlled by the executive branch.

After Judge Brinkema put the Justice Department on notice that Moussaoui's constitutional rights still will be protected, the government Friday appealed the case to the 4th U.S. Circuit Court of Appeals, the conservative bastion that last month gave the feds an enormous victory in the "enemy combatant" case of Yaser Hamdi.

The Justice Department has asked the appeals court to stay the entire case until the issue of Binalshibh's availability can be resolved. That all but assures that Moussaoui's late spring trial date will be pushed back -- the third delay of its kind for a case in the so-called "rocket docket" in Alexandria, Virginia.

Perhaps the federal appeals court will see things the government's way again and somehow allow Moussaoui to be put on trial in May without the benefit of a full defense. But it's also possible that the 4th Circuit's judges will decide that this sort of pre-trial access is precisely the sort of bright-line legal standard that cannot be smudged even for a suspected terrorist.

And there is always the United States Supreme Court, which might be less willing to defer to the executive branch in this sort of case. If this dispute stays in the courts, I think it would be a longshot for the government to get out from under its obligation to Moussaoui -- and I think federal prosecutors know it.

Which is why the feds are now saying expressly what they have been only hinting about for months that they just might be forced, depending upon what the appeals courts do, to withdraw their case against Moussaoui in federal court, transfer him into military custody, and then prosecute him before a military tribunal.

There's little any federal judge could do if military personnel took hold of Moussaoui and transferred him out of civilian custody. And there are no apparent legal impediments to hauling the foreign-born Moussaoui before a tribunal. As early as last summer -- after Moussaoui's zany plea attempt went awry -- I was writing about this possibility and people who make these sorts of decisions were talking about it.

But if that solution takes care of the Moussaoui problem, it also creates enormous potential headaches down the road. If the government somehow concedes that terror suspects must legally be given pre-trial access to other terror suspects, and if the feds continue to deny such access on national security grounds, what would stop any terror suspect for listing any other in a pre-trial list of potential witnesses in order to generate this precise problem for prosecutors in every case?

Sure, any suspect would have to disclose some reasonable link to any other. But you can easily see how the Moussaoui scenario could potentially be repeated in the case of the Oregon Six or the Lackawanna Six or any other terror suspects who might be inclined to want to mess with the feds.

And if that's what the government is worried about -- reasonable enough, I'd say -- does that mean we won't see any terror trials in federal court? Don't laugh. As the law stands today, the feds can simply haul non-citizens before military tribunals and then declare citizen-suspects "enemy combatants" and hold them without charges and incommunicado.

That's right, the public trial of Moussaoui, designed to show the world how American justice could fairly and responsibly treat even the bitterest enemy, may soon be remembered as the catalyst for a paradigm that keeps terrorists in the dark and out of our courts altogether.

By Andrew Cohen