From an article1:
Law enforcement officials have said that in secret court filings, Mr. Moussaoui's court-appointed lawyers have argued that without the access, he will be deprived of his Sixth Amendment right to seek out witnesses who might prove his innocence.
The officials said the judge in the case, Leonie M. Brinkema, had appeared to be sympathetic to the defense arguments and, in court orders not released to the public, had ordered that some of the witnesses be made available.
In a military tribunal, officials said, Mr. Moussaoui would almost certainly have fewer procedural rights to seek testimony from witnesses, including the captured Qaeda leaders. (
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We can't have him exercising his Constitutional rights, now can we? That would be too dangerous *rolls eyes*
So if the government can't pursue its case in a free and fair trial, it'll strip him of his rights. And we're the ones that are supposed to be the perfect example of the rule of law?
Complete text of the article,
White House Weighs Letting Military Tribunal Try Moussaoui, Officials Say, by Philip Shenon and Eric Shmitt (registration required for offsite link)
The White House is weighing a proposal to abandon the Justice Department's prosecution of Zacarias Moussaoui in a federal court, remove him from the United States and place him before a military tribunal in Guantánamo Bay, Cuba, administration officials say.
They said the proposal to shut down the civilian prosecution of Mr. Moussaoui, the only person charged in an American court with involvement in the Sept. 11 attacks, reflected a growing fear in the government that legal problems faced by the Justice Department in pursuing the case might be insurmountable.
The officials, speaking on condition of anonymity, said that while there had been no final decision on moving Mr. Moussaoui to the American military base in Cuba, the proposal had been discussed in recent weeks among lawyers at the White House counsel's office, the Pentagon and the Justice Department.
They said Defense Secretary Donald H. Rumsfeld was recently briefed by aides on the possibility that Mr. Moussaoui would be put under the Pentagon's control.
The officials said it was unclear if Attorney General John Ashcroft had weighed in with the White House on the issue, but they said that other senior officials at the Justice Department did not want to lose control of the case to the Pentagon and were urging the White House to hold off on a decision to abandon the trial.
Mr. Moussaoui, a 34-year-old French citizen, is facing trial next year in Alexandria, Va., on charges that he conspired in last year's terror attacks. Civilian and military lawyers said it was unclear whether the court-appointed lawyers assigned to advise Mr. Moussaoui would be able to prevent the administration from moving him to Cuba.
Mr. Moussaoui, who is trying to act as his own lawyer, has admitted that he is a member of Al Qaeda, but he has insisted that he had nothing to do with the attacks.
The legal problems for the Justice Department center on the refusal of the Pentagon and intelligence agencies to meet Mr. Moussaoui's demand for access to witnesses and evidence that, his court-appointed lawyers say, could aid in his defense.
The defense is seeking access to a variety of recently captured Qaeda figures, most notably Ramzi bin al-Shibh, a young Yemeni who was apprehended in Pakistan last month. He is accused of being a crucial planner of the Sept. 11 attacks and is identified by name throughout Mr. Moussaoui's indictment.
"The Pentagon and the C.I.A. argue, quite justifiably, that they want to keep these terrorists in isolation and under interrogation," even if that means abandoning the prosecution of Mr. Moussaoui, one official said.
Law enforcement officials have said that in secret court filings, Mr. Moussaoui's court-appointed lawyers have argued that without the access, he will be deprived of his Sixth Amendment right to seek out witnesses who might prove his innocence.
The officials said the judge in the case, Leonie M. Brinkema, had appeared to be sympathetic to the defense arguments and, in court orders not released to the public, had ordered that some of the witnesses be made available.
In a military tribunal, officials said, Mr. Moussaoui would almost certainly have fewer procedural rights to seek testimony from witnesses, including the captured Qaeda leaders.
His transfer to a tribunal might also be a relief to the administration because it would end the chaos created at recent court hearings, which Mr. Moussaoui has used as opportunities for tirades denouncing the United States and its criminal justice system.
A senior administration official, speaking on condition of anonymity, said that the Pentagon's general counsel, William J. Haynes II, recently discussed the proposal to transfer Mr. Moussaoui to Guantánamo Bay with his counterparts in the White House counsel's office and at the Justice Department.
The official said that while Mr. Rumsfeld had been briefed on the proposal to move Mr. Moussaoui to Cuba, he had not yet been asked to lobby the White House in support of the proposal.
The officials emphasized that whatever was done with Mr. Moussaoui, he would face trial somewhere, whether in a civilian court or before a military tribunal. "It's not a question of whether he'll be brought to justice," said an official, speaking on condition of anonymity. "It's a question of where and how."
Eugene R. Fidell, a Washington lawyer who is president of the National Institute of Military Justice, said that a decision to move Mr. Moussaoui from a civilian courtroom to a tribunal might be a sign of "nimbleness" by the government in dealing with the novel national security issue created in the prosecution of Qaeda suspects since Sept. 11.
"A critical observer might say that this is an embarrassing change of course for the government, while a sympathetic observer would say this is the government showing flexibility in an evolving and complicated area of criminal law," Mr. Fidell said. "The last thing the government wants to do is lose a case like this because of some public relations problems."
A decision to abandon the Justice Department's case could create a predicament for Mr. Moussaoui's court-appointed civilian lawyers, who would have to decide whether they had any standing to continue to represent him and whether they wanted to try to keep him from being transferred to military custody.
Criminal defense lawyers not associated with the case suggested that the court-appointed defense team might try to press Judge Brinkema to block Mr. Moussaoui's transfer until the federal courts decided the constitutionality of the government's use of the "enemy combatant" designation for Qaeda figures.
The issue has been the subject of a variety of court challenges since Sept. 11, most prominently in a case involving the Justice Department's efforts to deny a lawyer to Yasser Esam Hamdi, an American-born Saudi who was captured on the battlefield in Afghanistan and is being held incommunicado in a Navy brig in Virginia.
Mr. Moussaoui has tried to fire the team of court-appointed lawyers assigned to him by Judge Brinkema, but she has allowed the lawyers to continue to appear in court and to file motions on his behalf.
One of the court-appointed lawyers, Frank W. Dunham Jr., the federal public defender for Eastern Virginia, said in an interview that he might welcome a decision by the Justice Department to dismiss the charges in Alexandria.
"Who can stop them?" Mr. Dunham said. "We would consider it a win." But he would not comment when asked if he and the other lawyers would then try to prevent Mr. Moussaoui from being transported to Cuba for a tribunal.
Officials said a recent court order from Judge Brinkema delaying Mr. Moussaoui's trial by nearly six months, to next June, had taken some of the pressure off the administration for a quick decision on whether to move him to a military tribunal.
But they said the decision might still have to be made within several weeks, given a series of more urgent deadlines for the government to respond to requests from the defense for access to witnesses and documents.
The defense team is also weighing what to do about pleas by Mr. Moussaoui's mother for a new psychiatric examination of her son. In an interview, his mother, Aicha el-Wafi, said that she had become alarmed about her son's physical and emotional condition after meeting with him last week in the jail.
"Every time I see him, he is deteriorating — getting worse and worse," Mrs. el-Wafi said, speaking through an interpreter. "He can't think rationally. He doesn't talk rationally. He keeps saying, `I am going to be out very soon.' "
Another of the court-appointed lawyers, Edward B. MacMahon Jr., said they were considering Mrs. el-Wafi's request for court permission for a new psychiatric examination. "A mother's instincts with respect to her son are something that we should respect," Mr. MacMahon said.
reference=http://www.nytimes.com/2002/11/10/politics/10TERR.html
The Clipboard: Moussaoui to be tried by military tribunal instead?