REVIEW & OUTLOOK
A Military Commission for Moussaoui
The Justice Department fumbled the case. Let the Pentagon handle it.
By now it's clear that President Bush made a mistake when he decided to assign Zacarias Moussaoui, the alleged "20th hijacker," to trial in a federal civilian court. The Justice Department announced this week that it would defy a court order and refuse to make a captured member of al Qaeda available to speak to Moussaoui. The judge is now expected to dismiss the case.
The Moussaoui mess is also a missed opportunity. The accused terrorist would have been the ideal defendant to inaugurate the President's then-newly announced--and since much maligned--military commissions. Moussaoui is a foreign national (a citizen of France, as an added bonus) rather than U.S. citizen. The evidence against him is strong, mostly unclassified and could have been produced in open court. The world could have gotten a good look at how military commissions would work.
Instead, Moussaoui has spent the past year and a half making a mockery of the American criminal justice system. As we know from captured al Qaeda training manuals, recruits are instructed in how to manipulate the Western legal system if they are captured. We can assume Moussaoui was an A-plus student.
The Justice Department, however, is flunking its test in constitutional law. It is absolutely correct to refuse to let Moussaoui, who is representing himself, depose Ramzi Binalshibh, the acknowledged al Qaeda leader suspected of coordinating the September 11 attacks. And we believe prosecutors when they say that doing so would jeopardize national security by risking the release of classified information. This is not a risk worth taking.
But it's wrong to expect the criminal justice system to make an exception in the case of a suspected terrorist. A defendant--any defendant--has the right to access all information that might help his case. This is an essential part of American justice. To tinker with it runs the risk of distorting it to the point of long-run damage.
The lesson from the Moussaoui trial is not to give him what he asks for. Rather, the lesson is that the regular criminal justice system is not up to the job of trying terrorist suspects. Terrorists who would kill thousands of American civilians aren't ordinary criminal defendants and shouldn't be treated as such.
Virtually every wartime President in our history has understood this--which is why Mr. Bush decided to follow the example of Washington, Lincoln and FDR and establish military commissions for the purpose of trying enemy combatants. Our only complaint is that he has waited so long to assign anyone to a trial in a military commission.
But one may be in the works soon. The courtroom at Guantanamo is ready, military officers have been named to lead the prosecution and defense, and the President this month designated six prisoners as eligible to be tried before the military commissions. The list includes two Brits and one Australian, presumably because the U.S. does not want to be put in the position of having to decide whether to share classified information in open court were those nationals to be returned home for trial.
We have a better idea. Drop the current prosecution of Moussaoui, declare him an unlawful enemy combatant, move him to Gitmo and put him on trial in the first military commission of the war on terror. The Moussaoui mess points out the dangers of using civilian courts in terrorism cases. A military commission couldn't possibly do any worse, and it deserves the chance to prove to the world that this can be a fair and honorable way to balance civil liberties, justice and national security.
