ON MONDAY The Justice Department rebuffed a six-month-old order from U.S. District Judge Leonie Brinkema to allow Zacarias Moussaoui, the so-called "20th hijacker," access to another imprisoned member of al Qaeda. This means that Judge Brinkema now technically has the legal authority to throw out the indictments against Moussaoui, reduce the charges or restrict government evidence. While the government has recourse in that it may appeal to the 4th U.S. Circuit Court of Appeals, this latest twist further demonstrates how the Moussaoui case has gone completely awry. President Bush should step in immediately and declare Moussaoui an enemy combatant, thereby opening up the possibility of a military tribunal.
Moussaoui's trial first derailed in June of last year when Brinkema ruled that Moussaoui could represent himself rather than use his court-appointed attorneys. Throughout the proceedings, Moussaoui has consistently shown contempt toward the court and all involved with his trial. In April, Moussaoui accused the judge of trying to kill him, labeled his defense team "nasty Jewish zealots" and "right wing racists" and filed motions as the "Slave of Allah."
The real problem in the case began last year when Moussaoui demanded to exercise his Sixth Amendment right to call witnesses and question al Qaeda member Ramzi Binalshibh. Binalshibh, in U.S. custody, is suspected of being a member of a Hamburg al Qaeda cell, the same cell of September 11 ringleader Mohammed Atta and two other September 11 pilots. Moussaoui claims that Binalshibh can exonerate him, but the national security concerns are obvious. In addition to the dangers implicit in allowing incarcerated members of al Qaeda contact with one another, it undoubtedly would be difficult to keep classified information under wraps during the testimony. Judge Brinkema's January decision to grant Moussaoui's request was ludicrous.
Brinkema, a Clinton appointee, is the same judge who five years ago banned public libraries from filtering out internet pornography. The government already bends over backwards to protect the rights of the accused, especially with high-profile defendants (Timothy McVeigh for one). A liberal judicial activist catering to the needs and whims of a terrorist is absolutely unnecessary. Moussaoui, in addition to Binalshibh, has also requested contact with al Qaeda third-in-command Khalid Shaikh Mohammed and Palestinian-Saudi coordinator Abu Zubaydah, both of whom are in U.S. custody. Where does it end? A few months from now Moussaoui will want to question Osama bin Laden himself.
One question raised through the trial is why Moussaoui, a French citizen, is being afforded constitutional rights and a civilian trial. U.S. citizens Jose Padilla and Yaser Hamdi are currently being held as enemy combatants by the U.S. military. Both of them can't even sniff the rights that Moussaoui currently has. For those who think that perhaps Moussaoui is just a "pedestrian terrorist," this is not the case. In the months leading up to September 11, Moussaoui attended two flight schools, purchased knives, fighting gloves, flight manuals and training videos for the Boeing 747. He was tied in deeply with many of the September 11 hijackers; in short, Moussaoui is a very dangerous man.
Attorney General John Ashcroft and the Justice Department did an admirable job in attempting to show that the government could handle a high-profile trial involving a suspected terrorist. Unfortunately, it has now become clear that the government, specifically President Bush, needs to act decisively and drop the civilian trial against Moussaoui and declare him an enemy combatant.
Civil libertarians decry the idea of moving the trial from the civilian to the military system, calling it a "disservice to the Constitution." They can spout the names of past court cases involving defendants dismissing their legal teams or acting in a bizarre manner as a precedent for allowing Moussaoui's grandstanding to continue. But the truth is there is no precedent. Many months ago, Moussaoui called for the "destruction of America" in his pretrial hearing. When was the last time an enemy of the state who, if left to his own devices, would try to kill Americans and destroy our way of life, rated a civilian trial? For Moussaoui, this trial isn't about guilty or not guilty; it's about making a mockery of the American judicial system and spreading his burning message of hatred. Don't think for a second that Al-Jazeera wouldn't happily beam courtroom images of Moussaoui's diatribes to millions of fanatics in the Middle East.
If Moussaoui is declared an enemy combatant it opens up the possibility of a military tribunal, a process with certain benefits. A military tribunal would prevent Moussaoui from broadcasting his aforementioned message of hate, and who knows; even prevent him from communicating to other al Qaeda operatives. A military tribunal, secretive by nature, would also keep sensitive intelligence and other classified information under strict government/military control. Many even argue that a tribunal would be beneficial to Moussaoui in that he would not be able to defend himself personally in such a setting.
In all likelihood, Zacarias Moussaoui was ready and willing to die on September 11. He has no respect for the Western way of life or for life in general, for that matter. Since his indictment thirteen months ago the grandstanding, the anti-American tirades, the chance to broadcast his message of violence and the requests to question other al Qaeda members have all been icing on the cake for him.
(Joe Schilling is a Cavalier Daily columnist. He can be reached at jschilling@cavalierdaily.com.)
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