US to let terror charges drop

[Timber Loftis]

Today's NY Times:

In Maneuver, U.S. Will Let Terror Charges Drop
By PHILIP SHENON

WASHINGTON, Sept. 25 — The Justice Department announced today that it was willing to allow a federal trial judge to dismiss the indictment of Zacarias Moussaoui, the only person charged in an American court with conspiring in the Sept. 11, 2001, terror attacks, in order to move the case into an appeals court where the charges could be quickly reinstated.

The department's announcement that it would not oppose a defense request for dismissal cleared the way for the judge, Leonie M. Brinkema, to throw out the case against Mr. Moussaoui as early as Friday.

The judge, in district court in Alexandria, Va., had already signaled that she might have no other option because of the government's refusal to allow Mr. Moussaoui and his court-appointed lawyers to interview captured terrorists from Al Qaeda who might provide valuable defense testimony.

While dismissal of the case would be an obvious symbolic blow to the Justice Department and its larger prosecution strategy against terrorists, the department insisted today that the prosecution of Mr. Moussaoui was far from over and that the government was hopeful that an appeals court would allow the trial to proceed.

The Justice Department is seeking the death penalty in the case, the most prominent terrorist prosecution to result from the Sept. 11 attacks.

Officials of the Bush administration have also made clear that if Mr. Moussaoui cannot be prosecuted in a civilian court because of the question of defense witnesses, he will be moved to a military tribunal, where he may have fewer rights to seek testimony from the captured terrorists.

In a declaration filed on Wednesday and made public today by Judge Brinkema, the Justice Department did not ask directly that the charges be dismissed, but it said dismissal was "the surest route for ensuring that the questions at issue here can promptly be presented to the Fourth Circuit," a reference to the United States Court of Appeals for the Fourth Circuit, in Richmond, Va.

As a result, the department said, prosecutors "do not oppose" a request made this month by Mr. Moussaoui's court-appointed lawyers for the indictment to be thrown out.

In a separate statement released today, the department said dismissal of the case, followed by immediate review by the appeals court, "will allow the Department of Justice to resolve the impediments to trial." It added: "We remain confident in the ability of our judicial system to try this case, and we look forward to bringing Mr. Moussaoui to justice."

In June, the Fourth Circuit refused to intervene in the case to rule on the question of Mr. Moussaoui's access to defense witnesses, saying it was premature to act until Judge Brinkema had applied sanctions against the government over the issue, such as dismissing the case.

In the months since, the Justice Department and defense lawyers have filed a series of court papers with Judge Brinkema debating the witness issue and the appropriate punishment to impose on the government, and a ruling from the judge to dismiss the case or throw out some of the charges against Mr. Moussaoui had been thought imminent.

If and when the case returns to the Fourth Circuit, the outcome of the appeal will likely help shape the government's prosecution strategy for terrorists for years to come, since many other Qaeda members now in custody are expected, like Mr. Moussaoui, to demand testimony from terrorist colleagues.

The Fourth Circuit is widely described as the most conservative appeals court in the nation. But while it is often sympathetic to national security arguments from the executive branch and is considered relatively unsympathetic to due process claims from criminal defendants, lawyers who practice before the court say they are uncertain how it will rule in this case.

The case against Mr. Moussaoui, a French citizen who has acknowledged that he is a Qaeda member and is loyal to Osama bin Laden, has been stalled for months over the issue of whether Mr. Moussaoui and his legal advisers can have access to captured terrorist leaders who were involved in the Sept. 11 conspiracy — and who would presumably know if Mr. Moussaoui was part of it.

Defense lawyers for Mr. Moussaoui have cited intelligence reports suggesting that the captured Qaeda members would testify that Mr. Moussaoui had no involvement in the events of Sept. 11. Mr. Moussaoui was arrested in August 2001 after arousing the suspicion of instructors at a flight school in Minnesota where he had sought training.

The Justice Department, acting at the instruction of the White House and under pressure from the Pentagon and Central Intelligence Agency, had said the government could not make the captured Qaeda leaders available for defense questioning.

"We believe that the Constitution does not require, and national security will not permit, the government to allow Moussaoui, an avowed terrorist, to have direct access to his terrorist confederates who have been detained abroad as enemy combatants in the midst of a war," the department said today.

But defense lawyers have argued, and Judge Brinkema and many outside prominent criminal law specialists have agreed, that Mr. Moussaoui cannot receive a fair trial without access to witnesses who clearly know whether he was involved in the Sept. 11 conspiracy and other Qaeda plots.

Among the captured terrorists whose testimony is being sought by Mr. Moussaoui is Ramzi bin al-Shibh, a Yemeni in his early 30's who was described in Mr. Moussaoui's indictment as the middleman between Mr. Moussaoui and the Sept. 11 hijackers.

Mr. Moussaoui is also seeking to question Khalid Shaikh Mohammed, the former Qaeda operations chief who was apprehended this year in Pakistan and has been described as the architect of the Sept. 11 plot.

Court-appointed defense lawyers have argued for most of the last year that Mr. Moussaoui must have access to the captured Qaeda members or be denied his rights under the Sixth Amendment of the Constitution to compel testimony from witnesses who might aid in his defense.

One of the defense lawyers, Edward B. MacMahon Jr., said today that he welcomed the Justice Department's announcement.

"We're pleased to see the government acknowledge that it has an obligation to provide a fair trial to Mr. Moussaoui," Mr. MacMahon said in an interview. "That's what we've been fighting for for the last year."

Although Mr. Moussaoui has sought to act as his own lawyer in the case and has even attempted to fire his court-appointed lawyers, Judge Brinkema has insisted that the lawyers remain in the case as defense advisers, and they have continued to appear in court on his behalf, often over his objections
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TL's problem with this can be seen in a loose translation of the government's position:
"We're going to try this case as we like, not as the court likes, and if we don't get the result we want in this forum, we'll go to another -- one that is solely our own."

Well, why bother with the formality of a trial? Just duck-march him to the gallows. If you're going to take away all rights, at least have the balls to do it openly and unabashedly. Quit pantomiming.

[Skunk]

The BBC offers a slightly different take on this, believing that it is all part of the Justice Department's plan to thwart the gridlock:

"Correspondents say the extraordinary request by prosecutors is a legal manoeuvre, designed to stop Mr Moussaoui's access to high-level al-Qaeda suspects being interrogated in secret locations by the US military.

It follows a decision by the judge handling the case that Mr Moussaoui should have access to the three suspects so he can prove he was not linked to the 11 September plot and avoid the death penalty...

The BBC's Ian Pannell, in Washington, said that what government lawyers have now suggested is a clever legal move. They have called on the judge to throw the case out.

It would not mean that Moussaoui would be released from custody; instead, prosecutors would then go straight to a higher court and appeal the dismissal and crucially, the original ruling that Mr Moussaoui should get access to the al-Qaeda detainees."

[Timber Loftis]

If they were willing to accept the downside of an unfavorable appeals court ruling, it would be something I could swallow. But, it otherwise IS a clever legal manuever, I admit. However, the "if we don't get the result we want we'll haul him to another forum" bit gets me.

Besides, if the judge agreed with the Defense lawyers, what's wrong with it? I mean, they're all incarcerated. What national security issue is there? Besides, just let the lawyers interview them, you don't have to let the prisoners talk to each other -- ever.

Actually, it looks a lot like a Judge trying to be a pain much like the one that caused the flap yesterday saying that the FTC wasn't authorized to enact the "do not call" list after it was empowered to do so by congress.

As long as the supreme court doesn't come down and set the guy free, I have no problem seeing him tried and executed by a military tribunal. (assuming he is guilty )