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The Moussaoui Case

September 26, 2003 at 12:00 AM EDT
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RAY SUAREZ: The legal web surrounding the Zacarias Moussaoui case is now even more tangled. Yesterday federal prosecutors urged a judge to dismiss the indictment against Moussaoui, the only person charged in the September 11 attacks. Why move for a dismissal in a prosecution they’ve pursued for years? At issue is a dispute over Moussaoui’s right to question al-Qaida detainees.

Twice this year, in January and August, U.S. District Judge Leonie Brinkema has issued orders granting Moussaoui access to three detained enemy combatants who could support his denial of being a 9/11 conspirator. The Justice Department has refused to comply saying the witnesses could reveal classified information.

We sort through these latest legal twists with John Yoo, the former deputy assistant attorney general in the Office of Legal Counsel. He’s now a visiting professor at the University of Chicago Law School. And David Cole, professor at Georgetown University Law Center and an attorney with the Center for Constitutional Rights. He is the author of the newly published book, "Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism."

Professor Yoo, help us understand why the federal government that’s been prosecuting Zacarias Moussaoui joined the defense in a move for a dismissal.

JOHN YOO: Well, this was a very unusual motion, but not unprecedented. Essentially what the prosecution did was they said to the judge, we really want to get this out of the way and go up and appeal this to the federal appellate court in Virginia, so we will recommend that you dismiss the case, because that perfects the case procedurally, so that they can go and appeal Judge Brinkema’s decisions ordering access to enemy combatants held abroad. If they went to the 4th Circuit, it doesn’t prejudice their rights and they could prosecute the case at the trial level.

RAY SUAREZ: Zacarias Moussaoui is a criminal defendant arrested by the United States Government. If his case is dismissed, does he walk out of a courtroom somewhere only to be rearrested? What happens?

JOHN YOO: Well, this is one of the reasons why this is such an important case because Zacarias Moussaoui is not a U.S. citizen, so he is potentially subject to the president’s military order establishing military commissions, which does extend to enemy aliens. It is unlikely that Mr. Moussaoui could walk free the minute his prosecution is dismissed. I would assume that the Defense Department could then take charge of Mr. Moussaoui and provide a military commission trial for him. If he were an American citizen, however, he might be able to walk free because military commissions at present don’t apply to citizens.

RAY SUAREZ: Well, Professor Cole, In the long history of the case, this is probably the only thing the defense and the prosecution have agreed on so far. When you look at this, what is going on here?

DAVID COLE: I think what is going on is that the administration wants to essentially have its cake and eat it, too. It wants to prosecute this man, it wants to put him to death, and it wants to keep from him information that the judge has determined is material to his defense and exculpatory, meaning that it undermines the evidence that the government has may show that he is innocent, may show he is not deserving of the death penalty. The judge is saying look, you have a choice here. If you don’t want to prosecute him, declare him an enemy combatant. You can declare him an enemy combatant. You don’t have to put him on trial. Wait until the witnesses who you don’t want to reveal, you don’t want to have anyone talk to, wait until you’ve gotten all the information you need out of them, and then you can give him a fair trial.

But the government wants to go to trial now. They want to execute him now, and they don’t want to give him a fair trial. And I don’t think that problem will be solved if you put him in a military tribunal and try him either because in both jurisdictions, he has the right to a fair trial. And what kind of trial is fair where the government has evidence that undermines its own case, yet it keeps it from the defendant, who its seeking to execute?

RAY SUAREZ: Professor Yoo, what do you think, is the government obliged to produce these witnesses that the defendant says could clear his name?

JOHN YOO: I have to say I don’t think what David just said, and I have a lot of respect for David, is exactly right. In this case there are written transcripts of what some of these witnesses are saying. And those, I think, are on the Web, you can check it on the government’s pleadings, are being made available to the defense.

So they see the same things the prosecution is seeing. The question is really does the defense have the right to bring these people, enemy alien combatants being held abroad by the military agencies, all the way back to the United States to testify in open court before a jury? That would be unprecedented. I mean it’s true that you have a right as a defendant to bring witnesses to testify on your own behalf but it is not an absolute right. It doesn’t run all the way into forcing the military to have to do certain things abroad in the middle of a war.

DAVID COLE: It is not forcing the military to do anything in the middle of the war. If the military wants to keep these individuals on Bagram Air Force Base, it can keep them there. All Judge Brinkema has said is that they have to be made available for a videotaped deposition. They don’t have to be brought to the United States.

And if the military doesn’t want them to be even subject to a videotaped deposition, it also has a choice. It has a choice not to seek the death penalty, not to seek to prosecute Mr. Moussaoui now. Wait until the time is ripe, when they no longer need to keep these people in isolation, and when they could give Mr. Moussaoui a fair trial. I just don’t see what the big deal is, why the government can’t wait until a fair trial can be provided to Mr. Moussaoui. There is no emergency in the meantime.

RAY SUAREZ: But the Justice Department has further said that one reason they don’t want the likes of Khalid Sheikh Mohammed and Ramzi bin al-Shibh, senior al-Qaida members, testifying in open court, is that it will wreck the interrogations that they’ve been doing with these people, which are long-term projects and bring out things that perhaps the government can be injured by having come out in open court.

DAVID COLE: That’s right. And the thing is prosecutors often face the dilemma that they want to bring a prosecution, but they don’t want to reveal information because revealing a witness’s identity might break, might undermine an investigation because the information is classified. There are all sorts of reasons why prosecutors might not want to reveal information.

But the bottom line is if the information is in the government’s control, and if it undermines the government’s own allegations in the case, it is fundamentally unfair for the government to go ahead and prosecute the individual without giving him access to that information. And that’s what they’re seeking to do here. No court has ever, under any circumstance, permitted that kind of exception, has never permitted the government to prosecute someone where it has evidence that shows that the person is not guilty of what it is claiming it is guilty of and yet it goes ahead and prosecutes him while keeping that evidence out of court.

RAY SUAREZ: Well, Professor Yoo, for its part, the Justice Department said we believe there are other ways in which to ensure Moussaoui the fundamentally fair trial the Constitution requires. What might those be?

JOHN YOO: That’s a very good point. And I think what we are not talking about directly here but we should is, are what are the alternatives? Given that the military has a legitimate interest, or that the intelligence agencies have a legitimate interest in not interfering with the interrogation, what could you do? The government has proposed, for example, entering stipulations as to what the witnesses would say if they were brought into the courtroom. So, for example, one of the high ranking al-Qaida people could say we had a big September 11th meeting and I didn’t see Moussaoui there. And the government and the defense could agree and put it on a stipulated set of findings and give it to the jury and say you must accept that this witness, if he were brought here, would testify that. That’s giving the defense as much information as the prosecution has, and also allows the defense to provide that evidence to a jury.

DAVID COLE: I think my understanding is that that has been proposed but the judge has found the stipulations that the government is willing to enter into are not a sufficient substitute for the testimony, would not provide the defendant with the same opportunity to defend himself. And so the remedy available to the government is you simply don’t seek to execute, put this man on trial and execute him now. You hold him as an enemy combatant. He has admitted that he is a member of al-Qaida. You can hold him as an enemy combatant and then at the time when you can give him a fair trial, then you give him a fair trial.

RAY SUAREZ: Professor Yoo, earlier in the conversation Professor Cole mentioned twice that the government is seeking the death penalty in this case. Does this change the threshold for issues like this, whether a man can talk to people who he thinks has the evidence that might clear him?

JOHN YOO: I think legally the threshold is the same, the kind of test you want to use is the same. And in this kind of environment, the courts have in the past used a balancing test which judges the government’s interest verses the ability to come up with some kind of alternative, which provides the information to the jury. But I think you have to admit that since the death penalty is involved, judges are playing an especially close eye to what is going on because they want to make sure there are no mistakes.

And so that’s why I think this is why the prosecution, defense and the judge all agree, I’m sure the judge will dismiss the prosecution shortly, that they want this all to go to the 4th Circuit Court of Appeals and see if Judge Brinkema is actually right on these findings or whether the court is going to allow a different rule to be used.

RAY SUAREZ: It is interesting. It has been months now since the judge has ordered the government to make these witnesses available, and they haven’t. Does that happen very often? And why have there been no sanctions?

DAVID COLE: I don’t think … it’s very, very rare for, to have a criminal case where the government admits that it has exculpatory information and nonetheless refuses to turn it over. So this is an unprecedented kind of a situation. Ordinarily what happens is that the exculpatory information is turned over. There might be disputes about whether there is other information. There might be information that comes out after trial and there are disputes about whether the government should have turned it over. But for the government to say, yes, we have exculpatory information but we are not going to turning it over that is unprecedented.

I think the reason it has taken some time is that there has been an effort to try to look for alternatives as John was suggesting. But the court has found that none of the alternatives that have been proposed by the government would put the defendant in the same position as having the witnesses there. And that’s ultimately the question that the government has to answer. And so she’s come to the point where dismissal is the only real remedy. They obviously agree since they’ve agreed to …

RAY SUAREZ: Quickly, Professor Yoo, before we go, if, as you suggest the next step in this is for Judge Brinkema is to dismiss and it moves on up the ladder to the appellate court, why won’t the same thing just happen there?

JOHN YOO: I think because the 4th Circuit, which is the most conservative circuit court in the country and has a more restrictive view of criminal procedural rights than a lot of other circuit courts in the country, I think is very likely to reverse Judge Brinkema. If they don’t, I don’t think David would disagree with this. We don’t agree on a lot, but I think this is going to go all the way to the Supreme Court, whoever wins at the circuit court because it is such an unprecedented question about whether these criminal procedure rights run in to the commander in chief power and running a war abroad.

RAY SUAREZ: Professors, thank you both.