How the courts handle cases from war on terror

Rich Lowry

11/19/2002 12:00:00 AM - Rich Lowry
O.J. Simpson has nothing on Zacarias Moussaoui. Moussaoui is not just -- like the former running back -- guilty as hell, he has actually tried to plead guilty. And he's still going to get off. Moussaoui is rapidly changing from a symbol of the Islamists' irrational hatred of America to a symbol of the utter inadequacy of the American court system to handle cases arising from the war on terror. The accused 9/11 plotter has been in custody since August 2001; he's not scheduled to be tried until June 2003; and his court appearances have featured bizarre anti-American rants -- Jim Traficant on a jihad. That a case involving 3,000 American dead is dragging on so slowly -- with even the possibility of Moussaoui's execution probably a decade away, in the best-case scenario -- is bad enough. But it gets worse: The case against him is likely to collapse. Moussaoui's lawyers are demanding access to U.S. detainees who might have knowledge of the terror plot, especially Ramzi Bin al-Shibh, a Yemeni who allegedly helped plan the 9/11 attacks. These requests are entirely reasonable and in keeping with a defendant's right to get access to any possible exculpatory information. The problem is that visits from defense lawyers would disrupt the interrogation regime established to get intelligence --possibly lifesaving intelligence -- from detainees. The United States eschews torture, so it relies instead on a system of intense psychological pressure in which every detail makes a difference. "Everything that you say matters," an interrogator told the Los Angeles Times. "How the room is set up matters." Defense lawyers aren't simply going to be allowed to waltz in on this fragile environment -- nor even would Donald Rumsfeld. Here's the rub: Judge Leonie M. Brinkema is expected to grant the Moussaoui defense's discovery motions; the government will refuse to cooperate; and then the case will likely be thrown out, unless the United States pulls the plug sooner. And Moussaoui didn't even have to hire Johnnie Cochran. Is this another nightmare miscarriage of justice, courtesy of the courts? Actually, the U.S. criminal-justice system was never meant to handle cases like Moussaoui's. Our system reflects a social contract. It is designed not just to punish the guilty, but to protect the innocent from the enormous prosecutorial powers of the government. Thus, all the procedural protections and technicalities that routinely get criminals off the hook. But Moussaoui is not a criminal in this sense. He was here to commit an act of war. He is no different from an al-Qaida member on the battlefield in Afghanistan, where the full fury of the U.S. government would have been visited on him in the form of laser-guided bombs. It is absurd to go from killing his ilk on sight to granting them Sixth Amendment protections, merely on the basis of geography. This was the point of Bush administration's proposal for military tribunals -- to deny enemy combatants judicial protections to which they have no claim. But this conceptual breakthrough has been vitiated by the administration's maddeningly inconsistent treatment of al-Qaida operatives. John Walker Lindh, captured on the battlefield in Afghanistan, was charged in the civilian court system, while Yaser Hamdi, captured on the battlefield in Afghanistan, is held in the military system. Moussaoui, detained in connection with a terrorist plot on U.S. soil, is charged in the civilian system, while Jose Padilla, detained in connection with a terrorist plot on U.S. soil, is held in the military system. Moussaoui will probably, one way or another, be yanked from the civilian system and transferred to military custody. But the fiasco of his case so far matters -- our enemies notice such things and take them as signs of our lack of resolve and seriousness. (Islamic militants were emboldened by the relatively light punishment meted out to the assassin of Rabbi Meir Kahane in Manhattan in 1990). Occasional O.J.'s might be the price of our system of justice, but in the war on terror, they are intolerable.