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    Moussaoui may be mad, but he's got a point

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    © St. Petersburg Times
    published February 23, 2003

    Zacarias Moussaoui, the alleged 20th hijacker, has shown himself to be an unbalanced nut. The French citizen of Moroccan descent who is charged with being the surviving conspirator in the Sept. 11 attacks has raised the high-water mark for courtroom antics with paranoid rants and reams of frivolous motions. But sometimes even the maddest of men have a lucid point to make and Moussaoui has one.

    He, along with the attorneys assisting him, have requested access to Ramzi Binalshibh, a material witness in the case against him and an alleged al-Qaida leader currently held by U.S. forces in a secret location.

    Binalshibh was named in Moussaoui's indictment as a leader of the Sept. 11 attacks who had wired Moussaoui about $14,000 in early August 2001. A week later Moussaoui paid $6,300 to enroll in a Minnesota flight school. Prior to Sept. 11, Moussaoui was arrested for immigration violations after the flight instructors tipped off the FBI.

    There is no way Moussaoui can get a fair trial without his attorneys having access to Binalshibh and, in accordance with law, a federal judge in Virginia so ruled. But rather than go along, the Bush administration is fiercely fighting the order. The Justice Department says any contact between Moussaoui's attorneys and Binalshibh could jeopardize continuing interrogations and allow for the release of coded messages to the rest of the terror network. It is appealing U.S. District Court Leonie Brinkema's ruling and has hinted Moussaoui may be tried by a military tribunal if it loses.

    What the administration is not saying is that the testimony of Binalshibh could undermine its case against Moussaoui.

    Published reports indicate that Binalshibh has been extremely forthcoming during interrogations. But Binalshibh has denied that Moussaoui was part of the Sept. 11 plan -- Moussaoui was considered too volatile and unstable. Instead, he was used as a kind of auxiliary al-Qaida agent. The problem for Attorney General John Ashcroft, who chose to try Moussaoui in Virginia, a jurisdiction known for its partiality to the death penalty, is if the government wants to speed Moussaoui to the death chamber it will have to prove the link.

    The case is another example of how the Bush administration is playing our nation's legal system like a game of musical chairs. If it doesn't get its way in one venue, it will remove Moussaoui to another -- one where it picks the players and make the rules. The maneuver is similar to what the administration pulled on Jose Padilla, the so-called dirty bomber, who was named an enemy combatant and spirited into a military brig as a way to thwart an inquiry by a judge into the legitimacy of Padilla's detention as a material witness. Ironically, it was the fact that Moussaoui was not sent to a military tribunal and would be tried in a court of law that blunted much of the early criticism of Bush's military tribunal plan.

    It seems unlikely the appeal will get Ashcroft the result he wants. While the Virginia-based 4th U.S. Circuit Court of Appeals is arguably the administration's best bet, I doubt even that court would allow a death penalty case to go forward without giving the defense a real chance to rebut the indictment.

    So what are the alternatives?

    The government could do as it is threatening and move Moussaoui's case to a military tribunal. But that wouldn't eradicate the witness problem. A March 2002 directive setting out procedural rules for the Bush tribunal states: "The Prosecution or the Defense may request that the Commission hear the testimony of any person, and such testimony shall be received ... " Eugene Fidell, an attorney in Washington, D.C., and a military law expert, said trying Moussaoui before a military commission would mean the administration "might have the same or similar problems."

    Another alternative would be just to hold Moussaoui as an unlawful enemy combatant like Padilla or the prisoners at Guantanamo Bay. But if he is kept in the United States, Moussaoui will have access to the courts to challenge his indefinite confinement -- and could do so every couple of years.

    The administration is also probably weighing the possibility of sending Moussaoui to Guantanamo. As noncitizens, the prisoners there have been denied access to the courts. But here too there may be complications. Joseph Onek, director of the Liberty and Security Initiative for the bipartisan Constitution Project, says he believes Moussaoui would be an exception, and his presence might provide a legal basis for other prisoners to get into court to challenge interrogation techniques, confinement conditions or their status. "The idea that you can whisk someone out of the country to defeat habeas -- no court would accept this," Onek says.

    Try as they might, administration officials are simply going to find it extremely difficult to find a way around all the due process and justice this nation affords people whose liberty -- and possibly life -- we are taking away. Too bad for George Bush, John Ashcroft and Donald Rumsfeld. The authoritarian vision they are trying to forge has hit a speed bump.

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