It may turn out that the fatal weakness in Zacarias Moussaoui's case is not that the defendant is an admitted member of al Qaeda, but rather that he's French.
Moussaoui, who is charged with conspiring to carry out the September 11 terrorist attacks, is on trial for his life. Whether his prosecution should remain in federal court, or be transferred to Guantanamo for substandard proceedings before a military commission, is the question now facing the Bush administration.
It is, for the time being at least, a political decision more than a legal one. And from Moussaoui's perspective, the political odds are not encouraging.
One Form of Justice for Us, Another for Them
No Americans are being held on Guantanamo, nor will they be. Although the Bush administration has detained two American citizens indefinitely as "enemy combatants," the two are in military custody on U.S. territory. Unlike other such detainees, they do not face the prospect of prosecution before a military commission.
American citizens, even the most unrepentant terrorists, are excluded from military commission trials by the terms of the presidential order creating the commissions. Although the key WWII-era Supreme Court case involving military commissions drew no legal distinction between Americans and foreigners, the Bush administration was savvy enough to recognize that the distinction would resonate with the public. Substandard justice is somehow more noticeable and more galling when it affects a compatriot.
It should surprise no one, therefore, that the British and Australian public have raised an outcry over the Guantanamo substitute for justice. Where we see foreigners, they see fellow citizens.
Ever since it became known that British and Australian detainees were being held on Guantanamo, the two countries' media have featured a steady stream of news and critical commentary about conditions there. But it was earlier this month, with the announcement that two Britons and one Australian were among the first six detainees deemed eligible for trial by military tribunal, that public disapproval of the U.S. approach reached critical mass.
Unjust, Unwise, and UnAmerican
"Unjust, unwise, unAmerican," boomed the cover of The Economist, a normally staid and pro-American publication. In a series of articles dissecting the flaws of the planned military commission proceedings, the magazine described them as the "antithesis of the rule of law which the United States was founded to uphold."
Very quickly, the same sorts of political considerations that protected American citizens from military proceedings came to favor the British. One hundred and sixty-three members of the British parliament signed a petition calling on the U.S. government to repatriate the two Britons facing trial. Tony Blair, President Bush's staunchest ally in the war on Iraq, was equally insistent, raising the issue of his country's detainees in a meeting with Bush last week.
And so it happened that last Friday President Bush announced that the administration was reconsidering whether British citizens would be brought before military tribunals. Instead, a White House statement explained, legal experts from Britain and the U.S. would meet to discuss future options for British detainees on Guantanamo. The statement also said that the Australians on Guantanamo (whose country, like Britain, contributed troops for the invasion of Iraq) would receive a similar status review.
Speaking to a reporter for The New York Times, a senior administration official acknowledged the political underpinnings of President Bush's decision. He said that it was made in recognition that the two countries "are very important allies, partners."
While the decision to reconsider the proceedings is good news for the British and Australians, its message to the rest of the world is provocatively clear. Military commissions are not fit for our own people; they may not be suitable for our close allies; but they're good enough for everybody else.
Even as events conspired to help protect British and Australian detainees from military proceedings, a contrary dynamic was developing in the case of Zacarias Moussaoui. Moussaoui, who was arrested prior to September 11, is being prosecuted in federal court in Virginia. But the future of his federal prosecution is now in real jeopardy.
As a critical component of his defense, Moussaoui wants to depose Ramzi bin al-Shibh, an al Qaeda operative currently held by the U.S. military in an unknown location abroad. (One should note, at least in passing, that bin al-Shibh has been "disappeared," an abhorrent abuse no matter who is subject to it.)
A quick review of Moussaoui's indictment indicates bin al-Shibh's central importance to the case. Only via bin al-Shibh, who once shared an apartment with hijacker Mohammed Atta and who wired money to Moussaoui, does the indictment link Moussaoui to the September 11 conspirators. (The other "overt acts" mentioned in the indictment - taking flying lessons, owning a knife, joining a gym - provide only circumstantial evidence of Moussaoui's involvement in the plot.)
Bin al-Shibh could be the source of crucial exculpatory testimony that could save Moussaoui's life. It has been reported that, during interrogation abroad, bin al-Shibh said that Moussaoui, though a member of al Qaeda, was not involved in the September 11 plot. Moussaoui himself has repeatedly claimed that bin al-Shibh can attest to his lack of participation in the conspiracy.
Nonetheless, citing national security risks, the government refuses to allow Moussaoui to question bin al-Shibh. Although the Sixth Amendment to the Constitution clearly requires that such questioning be permitted, the prosecution has stated that it will not comply with a court order giving Moussaoui access to question bin al-Shibh via videoconference.
Military Commissions for the French
Given the prosecution's recalcitrance, the district court presiding over the Moussaoui case may be forced to dismiss the indictment. This may be all that the government needs to transfer his case to a military commission.
To the extent that a defendant's nationality now determines the quality of justice due him, Moussaoui - citizen of a country that, notoriously, did not support the U.S. war on Iraq - loses out. (Indeed, the jingoistic Wall Street Journal published an editorial calling for Moussaoui's trial before a military commission that described the fact of his French citizenship as "an added bonus.")
But in making this choice, the Administration should be aware of its ultimate consequences. If Moussaoui, without having had access to potentially exculpatory testimony, were to be sentenced to death by a military tribunal, France would not be alone in condemning the United States. The entire world would condemn the proceedings, and rightly so.