Alex Koppelman: U.S. strikes out with Moussaoui

The Ashcroft Justice Department laid all its cards on the table last week, and they're holding four aces while the rest of us are stuck staring at a pair of two's.

Though the eventual outcome of the case is uncertain, the case of the "20th hijacker," Zacarias Moussaoui, who allegedly was supposed to join the 9/11 attackers, is instructive in the methods, techniques and thinking behind the current administration's "war on terrorism."

Federal prosecutors, who Attorney General John Ashcroft promised would not take the Moussaoui case to a military tribunal, have been hemming and hawing for months over Moussaoui's request to interview Ramzi bin al-Shibh, an alleged Al-Qaeda member in U.S. custody. It would, they say, threaten national security. It's got the ring of plausibility: after all, these are two supposed terrorists working for a group declared by the U.S. government to be the world's most dangerous terrorist organization. But the plausibility is merely a thin shell; unfortunately, this one melts in our hands, not our mouths.

Think about it: these are two people who will most likely never again see the outside of a U.S. prison. If you believe that they are guilty, as the Justice Department says it does, and that they will be convicted, you can't possibly believe that they will ever be released. And if they aren't convicted, well, judging by the movement of the justice system in the cases of declared terrorists, they will still be there for quite a while. Neither is given more than cursory, censored, contact with any outsiders. Exactly how are they going to execute any attacks they might coordinate together? Or suppose that somehow one of the two knows information that is classified to the American public. Problem there? The court proceedings are closed. We'll never see it.

So why is the Justice Department so reluctant to let Moussaoui prepare anything resembling a defense? Maybe they're scared to lose.

And here's where my card analogy comes in. If the Justice Department continues to fight Judge Leonie Brinkema's order, and loses, the case will most likely be thrown out. That leaves prosecutors with only one option: a military tribunal. And according to Newsday columnist Marie Cocco, the "Justice Department has hinted - strongly - that if it doesn't get its way and actually is forced to allow Moussaoui a way to defend himself, it may abandon the criminal trial. It could have Moussaoui declared an 'enemy combatant' and throw him into a military brig with others who are locked up indefinitely." Now this is scary: any time it needs to, the government can drop a fifth ace out of its sleeve: too much of a chance someone might not be convicted in a civilian trial with Constitutional protections? Send them to a military tribunal!

These are, after all, the courts described in a January Washington Post editorial as, "a far cry from civilian justice," with "a serious risk of abuse." Basically, what it comes down to is this: the executive branch of the government is in charge of prosecutions. In civilian court, the judicial branch makes the rules and checks the executive branch. But in a military tribunal, the executive branch is the judge and the jury. It makes the rules. And it doesn't lose.

And unfortunately, this willingness to pick up their toys and go home when someone demonstrates that they won't play by their rules has characterized not just the Ashcroft Justice Department but the entire George W. Bush administration. After all, it's not as if the civilian justice system wasn't working for the government: both so-called "American Taliban" John Walker Lindh and shoe bomber Richard Reid are going away for long sentences. The government can, undoubtedly, win some cases. Sometimes, though, they'll lose. In a fair, open and impartial justice system that's what happens. Sometimes the prosecution loses, and a man they wanted in jail walks the streets. But that is a consequence of the American justice system, one which claims to take pride in the rights of its citizens. The apparent unwillingness of the Justice Department to do so could mean some Kafka-esque times ahead for all of us.

Alex Koppelman is a Junior in the College and editor of Summer Street.

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