Why Terrorism Suspects Should Be Tried in Federal Court, Not Before Military Tribunals: Lessons From The Moussaoui Mess

By CARL TOBIAS

Tuesday, Aug. 29, 2006

This spring, a federal jury in Alexandria, Virginia concluded that the death penalty should not be imposed on Zacarias Moussaoui, the admitted Al Qaeda member whom the United States charged with failing to speak to interrogators about the 9/11 plot.

Moussaoui's tortured prosecution consumed years, and, in the end, the government did not convince the jury to impose the punishment it sought. Now that some time has passed, it is possible to derive several lessons from Moussaoui's capital punishment proceeding.

The First Lesson: Terrorism Suspects Can, and Sometimes Should, Be Tried in Regular Federal Courts

First and foremost, Moussaoui's prosecution illustrates the necessity of trying suspected terrorists in our regular, civilian federal courts - as opposed to military tribunals or other similar options. These proceedings are open and public, and in them, most constitutional rights must be honored.

Such trials serve a number of important public values. First, they enable the people of the United States, and the international community, to see that America honors the rule of law not only when its own citizens are on trial, but for all.

During the Moussaoui trial, for example, at several critical junctures, U.S. District Judge Leonie Brinkema exhibited considerable solicitude for Moussaoui's rights -- such as his Sixth Amendment right to confront witnesses against him. In particular, at one juncture, Judge Brinkema directed the government to give Moussaoui access to three al Qaeda prisoners detained overseas, among them two major players, Ramzi Binalshibh and Khalid Shaikh Mohammed. Moussaoui claimed Binalshibh and Mohammed's testimony could exculpate him. However, the government did not ultimately provide these witnesses - citing national security concerns. Moreover, the Fourth Circuit reversed Judge Brinkema on this issue.

The right to confront witnesses is just one of the rights to which defendants are constitutionally entitled. Defendants also have a right to an attorney, the right to a jury drawn from the community, and a right to an open courtroom except in extraordinary circumstances. As the Supreme Court recognized recently in Hamdan v. Rumsfeld, the military tribunals envisioned by the Bush Administration, which it created through an Executive Order, would not have accorded defendants such rights.

The Second Lesson: Moussaoui's Trial May Well Be a Worst-Case Scenario

Obviously, the Moussaoui trial itself was not ideal. But it's important to remember that Moussaoui's criminal trial might well present the worst-case scenario - for several reasons.

Moussaoui insisted on representing himself - though Judge Brinkema wisely allowed stand-by counsel to remain in the courtroom as a backstop -- and his conduct was erratic. His lawyers argued, very plausibly, that he was mentally ill. His own testimony damned him - indeed, it seemed toward the end of trial, to have enabled the government to grasp victory from the jaws of defeat. And finally, after the jury rendered its decision, Moussaoui attempted to withdraw his year-old guilty plea, a request the judge promptly rejected.

But Moussaoui's was far from a typical case - and this bizarre proceeding is no reason to deny other terrorism suspects public trials in civilian courts.

Significantly, several other prosecutions of suspected terrorists have proceeded much more smoothly. Illustrative have been the trials of three men -- Ali al-Timimi, Ahmed Omar Abu Ali and Ali Asad Chandia -- who allegedly were members of the so-called "Virginia jihad network." Federal prosecutors rather easily secured convictions of the three defendants in the U.S. District Court for the Eastern District of Virginia, the court on which Judge Brinkema sits.

And imagine how poorly - and summarily -- a proceeding like Moussaoui's might have gone before a military tribunal, especially one like that contemplated in the Executive Order, which the Supreme Court rejected. Such a tribunal might have been inclined to accept Moussaoui's admissions of guilt without querying if they had arisen from mental illness, and might have been sorely tempted to recommend execution even of a very likely mentally-ill man.

Even if the Moussaoui trial wasn't, in the end, a model of justice, Judge Brinkema was, in many respects, a model judge. Would a military tribunal be as fair, impartial, and concerned with honoring constitutional rights as Judge Brinkema showed herself to be? Not likely.

The Third Lesson: We Must Not Let the Exception Destroy the Rule

Ideally, the U.S. ought to make case-by-case decisions about the appropriate tribunal in which to prosecute suspected terrorists - and in most case, ought to opt for open trials in federal civilian court.

Granted, a few trials may be so sensitive, from a national security perspective, that using a tribunal might be justified. But such trials will be rare: There are numerous available mechanisms, short of using a secret tribunal and ignoring constitutional rights, that will protect security. Only in situations that would clearly jeopardize national security by revealing highly delicate material in open court, should the U.S. consider optional fora, such as military tribunals.

In the end, open civilian trials in federal court best respect the rule of law, fundamental American values, and constitutional rights. If we opt not to use them, that decision should be rare.


Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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