The Justice Department is pressing the federal courts to put on show trials for terrorism suspects - kangaroo proceedings in which the government holds all the evidence and witnesses and can decide what to withhold from the defendant. For Attorney General John Ashcroft, every day apparently is another opportunity to dismantle constitutional protections.
The Justice Department is arguing before the 4th U.S. Circuit Court of Appeals in Virginia that Zacarias Moussaoui, who is charged with conspiracy for the Sept. 11 attacks, should not have access to a witness who might provide testimony on his behalf. The witness, Ramzi bin al-Shibh, is considered to be one of the masterminds behind the Sept. 11 plot. He was captured and is being interrogated overseas under U.S. control. But the government refuses to give Moussaoui access to bin al-Shibh, saying it would interfere with ongoing interrogations. National security interests must supersede the rights of the accused, says the government.
There have been reports that bin al-Shibh would be a helpful witness for Moussaoui. Bin al-Shibh reportedly told interrogators that Moussaoui, while a member of al-Qaida, was not the so-called 20th hijacker - Moussaoui was thought too unstable for such an operation. If true, such testimony could crimp the prosecution and possibly keep Moussaoui from the death penalty. One has to wonder whether authorities would keep bin al-Shibh quite this inaccessible if he would help their case.
In another terrorism case, that of former University of South Florida professor Sami Al-Arian, similar questions are being raised. Al-Arian is charged with raising money and support for the Palestinian Islamic Jihad, a terrorist organization responsible for many killings in the Middle East. The problem is that most of the evidence in the case is classified, including nearly 21,000 hours of taped telephone conversations that form the basis of the indictment. Frank Louderback and Jeff Brown, Al-Arian's counsel, object to having to obtain security clearances as a condition of representing their client. Louderback says even if he gets a clearance he will be hard-pressed to find an Arabic speaker with a clearance to interpret the tapes for him. And, Louderback says, he will need Al-Arian to talk about the context of the conversations in order to prepare a full defense. However, Al-Arian is barred from knowing what is in classified documents.
Prosecutors have declassified 250 conversations they say are the pertinent exchanges, but the defense should not be expected to take their word on this. If the government can declassify the conversations that help its case, the rest of the material should be made available as well. The use of classified material severely hampers the defense and should be sharply limited.
Al-Arian also is pressing for a speedy trial, a right guaranteed by federal statute and the Sixth Amendment. Al-Arian's interest in a speedy trial is particularly acute, because he has been denied bond and is being held in solitary confinement while awaiting trial. But U.S. District Judge James Moody has set a trial date in January 2005. Moody wants Al-Arian tried at the same time as his three co-defendants to save court resources. Unlike Al-Arian, the other defendants have waived their speedy trial rights.
On questions of a fair trial, there should be no compromise. Either the rights of the accused exist for suspected al-Qaida and Islamic Jihad members, or fundamental due process is reduced to the status of niceties that may be swept aside when inconvenient. Our nation is founded on the principle that no one can be denied liberty without being given the ability to fully defend himself. The courts are there to police that right. To do so, they must resist the Justice Department's effort to carve out a terrorism exception to the Bill of Rights.