The Clipboard: The Trial of Zacarias Moussaoui

From an article¹:

Since the Sept. 11 attacks, the Bush administration has repeatedly tried to dodge the Constitution while prosecuting the war on terror. In the trial of Zacarias Moussaoui, the so-called 20th hijacker, the Justice Department is once again attempting to trample the Bill of Rights - in this case, by denying Mr. Moussaoui the right to see evidence critical to his defense. The judge should not allow the government to have its way. (link, registration required)

Kudos to the New York Times. Right on!

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Complete text of the article, The Trial of Zacarias Moussaoui, by the Editors of the New York Times

Since the Sept. 11 attacks, the Bush administration has repeatedly tried to dodge the Constitution while prosecuting the war on terror. In the trial of Zacarias Moussaoui, the so-called 20th hijacker, the Justice Department is once again attempting to trample the Bill of Rights — in this case, by denying Mr. Moussaoui the right to see evidence critical to his defense. The judge should not allow the government to have its way.

The dispute now raging in the Moussaoui case is over whether the defendant will be permitted to question Ramzi bin al-Shibh, a captured member of Al Qaeda who played a key role in the Sept. 11 conspiracy. Mr. bin al-Shibh is mentioned prominently in Mr. Moussaoui's indictment, and it is possible he could provide evidence that could assist Mr. Moussaoui in his defense.

The Sixth Amendment guarantees a criminal defendant the right "to have compulsory process for obtaining witnesses in his favor," and Judge Leonie Brinkema has properly ordered the government to make Mr. bin al-Shibh available. But prosecutors have refused, arguing that allowing Mr. Moussaoui to question Mr. bin al-Shibh would pose a threat to national security. Faced with the government's defiance, Judge Brinkema can strike counts from the indictment that involve Mr. bin al-Shibh, or dismiss the entire case.

Allowing the government to deny access to Mr. bin al-Shibh with impunity would set the dangerous precedent that important constitutional rights can be taken away in terrorism cases. It is not at all clear that allowing Mr. Moussaoui to question Mr. bin al-Shibh in carefully monitored circumstances would threaten national security. If the Justice Department is convinced it would, it can adjust the charges against Mr. Moussaoui so Mr. bin al-Shibh's testimony is no longer necessary.

The government has put Judge Brinkema in a bind by suggesting that if it does not like her rulings it will simply transfer Mr. Moussaoui's case to a military tribunal. Tribunals must not become an end run around two centuries of constitutional law. And in any case, it is far from certain that the Supreme Court would allow tribunals to convict people without according them the rights guaranteed by the Sixth Amendment. The war on terrorism has not repealed the Constitution, and Judge Brinkema must ensure that it applies fully in Mr. Moussaoui's case.

reference=http://www.nytimes.com/2003/07/28/opinion/28MON1.html