Its prosecution vs. Constitution in railroading of Zacarias Moussaoui

["Fred Feldman" <ffeldman@xxxxxxxxxxxxxxxx>]

Moussaoui case tests US justice
By Kathryn Westcott BBC News Online

The case of Zacarias Moussaoui, the only person in the US to have been
charged in connection with the 9/11 attacks on the US, has escalated
into a landmark battle over a defendant's rights.

No doubt, when the 35-year-old French citizen of Moroccan origin was
indicted 21 months ago, many people thought the case would be over by
now.

But it has hardly started.

The case has become bogged down in a legal debate over whether the
defendant can get a fair trial while the US Government refuses to
allow him access to particular witnesses for national security
reasons.

The US Constitution has emerged as an obstacle to the Justice
Department's efforts to prosecute Mr Moussaoui.

He is accused of conspiring with 19 other men who carried out the
attacks on the US on 11 September 2001.

The Sixth Amendment of the Constitution guarantees access to witnesses
and other evidence to ensure a fair trial.

However, the witnesses Mr Moussaoui wants to hear evidence from are
being held at undisclosed locations by the US military and are
undergoing sensitive interrogation.

The three detainees are suspected al-Qaeda operatives:

Khalid Shaikh Mohammed, alleged to be the 9/11 mastermind;

Ramzi Binalshibh, believed to be a key planner of the attacks;

Mustafa Ahmed al-Hawsawi, believed to be an al-Qaeda financier.

The BBC's security correspondent Frank Gardner says the whole
interrogation process is highly classified.

"The military don't want to blow ongoing operations in the drive to
wrap up the leadership of al-Qaeda," our correspondent says.

"They don't want information spilling out in a court in Virginia, in
fact, they want to keep lawyers as far away as possible."

According to some experts, interrogators need to sustain a
psychological advantage over the detainees by depriving them of all
contact with the outside world.

But the judge presiding over the Moussaoui case in Virginia, Leonie M
Brinkema, has already ruled that the Justice Department should allow
the defendant to hear the detainees' evidence through a satellite
hook-up.

In particular, Mr Moussaoui wants to hear evidence from Ramzi
Binalshibh.

Defence court documents argue that statements made by Mr Binalshibh to
his interrogators would help show that Moussaoui was "a problematic
and unstable hanger-on who could never be trusted to be a participant
in any significant undertaking by al-Qaeda and was not a participant
in the plan for the 11 September attacks".

Human rights fears

The government's continued refusal to allow evidence from the
detainees could now lead to the charges against Mr Moussaoui being
dismissed.

We are also becoming alarmed at the growing trend to have people
classified as enemy combatants and moving such cases into the sphere
of military justice Neil Durkin, Amnesty International

In that case, Mr Moussaoui could find himself being designated an
"enemy of the state" and appearing before a military commission.

The government has said that if it is unable to get a court to
recognise the need to protect national security in this case, it will
have no choice but to put Mr Moussaoui before such a commission.

A US legal expert, Professor Scott Silliman, says the government is
trying to negotiate a legal maze in an environment that has changed
massively in the past two years.

The law in question is the Classified Information Procedures Act,
under which classified information in federal courts is normally
handled.

Legal moves

The Act allows the Justice Department to appeal against Judge
Brinkema's decision to allow Mr Moussaoui access to the witnesses.

But once the appeal is lodged, the judge can take sanctions against
the Justice Department, such as dismissing the case.

This is precisely what the government wants, because it will allow the
case to proceed to the appellate court quickly.

If the court rules in favour of the Justice Department, Mr Moussaoui
will be re-charged.

If it does not, the government has threatened to try him by a military
commission.

"I believe the military trial threat is just rhetoric to pile on the
pressure," says Professor Silliman, who heads the Center on Law,
Ethics and National Security at Duke University, North Carolina.

"It would send out the wrong signals at a time when the US is under
attack by members of the international community.

"It implies that the government is unable to get justice in a criminal
court and that it is easier to get a conviction in a military
commission."

At the time of his indictment, the government asserted that Mr
Moussaoui would receive swift justice in an open court. This would
show the world how fair the US judicial system was.

Now the administration is in danger of being accused by critics and
human rights groups of trying to set a dangerous precedent - that
important constitutional rights can be taken away in terrorism cases.

"We are concerned that the government is trying to circumnavigate
normal criminal justice procedures," Amnesty International's spokesman
Neil Durkin told BBC News Online.

"And we are also becoming alarmed at the growing trend to have people
classified as enemy combatants and moving such cases into the sphere
of military justice."

Story from BBC NEWS:
http://news.bbc.co.uk/go/pr/fr/-/1/hi/world/americas/3142206.stm

Published: 2003/09/26 18:04:31 GMT

© BBC MMIII








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