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Terrorism Cases

December 3, 2003 at 12:00 AM EST
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GWEN IFILL: Now, courts and the government wrestle with the prosecution of terrorism cases.

Federal judges in Richmond, Va., heard arguments today over whether Zacarias Moussaoui, the only person yet charged in the Sept. 11 attacks, can mount a defense by calling other al-Qaida suspects as witnesses. And in another case, the Pentagon reversed itself to allow Yasser Hamdi, who was seized in Afghanistan, to have access to a lawyer for the first time in 19 months.

Phil Shenon of The New York Times was in court today for the Moussaoui hearing. He’s here now to bring us up to date. So, tell me what happened in the court today. What was the purpose of today’s hearing?

PHILIP SHENON: This was an appeal by the government of a decision by the trial judge in the case to throw out the use of the death penalty against Moussaoui, and indeed to throw out much of the case against Moussaoui, specifically all the charges involving the 9/11 attacks. She sanctioned the government after the government refused to turn over defense witnesses, captured al-Qaida people who might be able to help Moussaoui in his defense.

GWEN IFILL: So, who are these two witnesses, or three witnesses, I guess overall, who he wanted called in his defense, and why they were important to his case?

PHILIP SHENON: Well, I mean, I think they are arguably very important to his case. These are captured al-Qaida folks in U.S. custody who were involved in the planning of the 9/11 attacks.

This really began with the capture last year of a fellow by Ramsi bin al Sheeb, a young Yemeni who is identified in Moussaoui’s indictment as the key middleman between Moussaoui and the 9/11 hijackers. He was apprehended, and Moussaoui’s lawyers went to court quickly and said, “We need access to this man, he may be able to show that our client is innocent.”

GWEN IFILL: And the lower court judge, Brinkema, said, “Okay, I think that’s reasonable if this client’s going to be brought up on a death penalty charge. He ought to be able to call his own witnesses.” And the government said “no.” Why?

PHILIP SHENON: Well, the government says that the Sixth Amendment of Constitution — and the Sixth Amendment gives criminal defendants the right to seek out testimony that might exonerate them — the government said that the Sixth Amendment does not extend overseas to enemy combatants, foreign citizens held by the United States abroad.

Moussaoui’s lawyers say that is rubbish and that Moussaoui, the rights Moussaoui has to exonerate himself through defense testimony certainly extends to somebody held by the United States, albeit overseas.

GWEN IFILL: Does Moussaoui have reason, or have he or his lawyers presented evidence to suggest why he believes these two or three other suspects would exonerate him?

PHILIP SHENON: Well, a lot of this has gone on behind closes doors, as to what the defense lawyers know and what the government knows about these men held overseas. But what I think many have learned over time is that indeed some of these captured al-Qaida people have said that Moussaoui, he had nothing to do with 9/11.

In fact, some of them apparently though that he was mentally unbalanced and would never have been invited to participate in 9/11. And that could be quite damaging testimony to the government’s case.

GWEN IFILL: So whatever the outcome, this goes farther than just Zacarias Moussaoui’s case, doesn’t it?

PHILIP SHENON: Oh, sure. The government says that if they lose on the issue, they’ve got a real problem in the future on bringing any terrorist suspects to trial in civilian courts, because presumably every terrorist suspect would simply say, “I need access to every terrorist you have in custody because they may be able to exonerate me.” The government is really up against a wall on this case.

GWEN IFILL: Were any of those ramifications, potential ramifications raised today in the arguments in the court?

PHILIP SHENON: Yes. I mean, the government has made it pretty clear that if they are defeated on this issue, they are going to have a real problem bringing any terrorist to trial in civilian courts in the United States, and may actually have trouble bringing them to trial in any jurisdiction, a military tribunal or whatever. And I think everybody is aware of what’s at stake here.

GWEN IFILL: Would “what is at stake” be as difficult or be as pointed if it weren’t about the death penalty, or is just the general principle of the thing?

PHILIP SHENON: I think it’s both. I think this Justice Department is very, very eager — this government is very eager to impose the death penalty in this case. This is such a high-profile case. Moussaoui is the most prominent terror suspect apprehended publicly, and brought before an American court since 9/11. And the government has pinned as awful lot of hopes on using this as a trial to explain what happened in 9/11, and showing that Moussaoui was some sort of participant in it.

GWEN IFILL: If the government loses this fight, this round, do they just yank this out of civilian court and take it back to a military tribunal, for instance?

PHILIP SHENON: That’s something they have discussed, because there is a belief that Moussaoui may have fewer rights to get access to these people abroad, than he would in a civilian court. But I think you’ll see appeal on appeal on this thing, and I think many criminal law specialists would not be the least bit surprised if this ends up before the United States Supreme Court.

GWEN IFILL: Now, another example of the difficulty the government is having trying to prosecute these terrorism cases is the case of Yasser Hamdi, a U.S. citizen who’s been held for 19 months without access to a lawyer. The government decided, the Pentagon announced last night, okay, he can see a lawyer. What was the reason for that reversal, do we know?

PHILIP SHENON: We don’t entirely what happened here. But this does seem to be indeed a reversal by the government, and I think people will argue that the government, to some extent, is giving in to the international public pressure to allow more due process to some of these enemy combatants. In this case, you have an American citizen held without … held in the United States without the ability to get contact with a lawyer. And I think that offended an awful of lot people, including people who would normally support the Bush administration in its prosecution of terrorism.

GWEN IFILL: You know, the government went out of its way, I guess, in the statement last night to say, “Don’t read anything more into this than just this case.” Is it possible to do that?

PHILIP SHENON: I don’t think so. And I think everybody is reading into it that they have backed down to some degree. The fact that Hamdi was an American citizen makes a big difference here. And I don’t think you’ll see them backing down in this sort of way with enemy combatants who are foreign citizens.

GWEN IFILL: And in the last case, John Walker Lindh — where an American citizen was brought up — he pled guilty, so this never even got to this point where it was discussed.

PHILIP SHENON: No, and I think there’s an argument that the government in that case backed down. Lindh’s lawyers made many of the same arguments as Moussaoui’s lawyers, that they should have access to these captured al-Qaida people. The Justice Department rather than trying to argue that out through the appeals court simply gave in — gave in may be the wrong word — but they at least reached a plea agreement that allowed Lindh someday to see freedom.

GWEN IFILL: And when do we expect the court of appeals to rule?

PHILIP SHENON: I think we expect this three-judge panel to rule pretty quickly. They’ve had this issue to hash out for many months now. This is not the first time they’ve visited this issue. So, you may have a decision from them within days or within a couple weeks.

GWEN IFILL: Okay, Phil Shenon, thanks a lot.