Here in Washington, a federal judge is set to rule on a request to dismiss conspiracy charges against Zacarias Moussaoui, the only person charged in the United States with involvement in the September 11 terrorist attacks two years ago. The French Moroccan acknowledges being a member of al-Qaida and a supporter of Osama bin Laden but denies involvement in the worst terrorist attack on American soil. The case could chart a course for how the government prosecutes other terror suspects.
The trial of Zacarias Moussaoui has been delayed for months because of a dispute between defense lawyers and government prosecutors. The two sides disagree on whether Mr. Moussaoui has the right to call detained al-Qaida terror suspects as witnesses, people his court-appointed lawyers claim will clear him of all involvement in the September 11 attacks.
Georgetown University law professor David Cole, who has been following the closely watched case, outlines what's at issue. "The evidence is essentially evidence from the mastermind of the 9-11 attack, Khalid Sheikh Mohammed, and from the person who was the go-between between Moussaoui and the al-Qaida leadership, both of whom have said Moussaoui was not the 20th hijacker," he said.
A reference to the 19 other hijackers who died when planes slammed into the Pentagon, the World Trade Center and a field in Pennsylvania.
Judge Leonie Brinkema has sided with the Moussaoui defense, ruling the French Moroccan has the right to question other suspected terrorists if that information could clear him of a crime for which he could be put to death. But government prosecutors are refusing to produce Khalid Sheikh Mohammed and other witnesses being held overseas by the U.S. military as enemy combatants in the war on terrorism. The Justice Department argues allowing such people to testify in open court would possibly enable them to reveal classified information that would damage U.S. national security.
"The Constitution requires the government, if it has evidence favorable to a defendant in a case it brought, to bring that evidence forward and make it available to the defendant," said Frank Dunham, a federal public defender who is handling the case of a man the United States has classified as enemy combatant (Yaser Hamdi) who was captured in Afghanistan.
If that access is denied, the Moussaoui defense wants the court to dismiss the charges against their client. "I don't know how the executive branch can ask to have a man executed and at the same time hold back information that could prove his innocence," said Mr. Dunham. "It seems to me that the government is in control of this situation and they have to decide which national interest is more paramount, the intelligence information from the detainees or seeking the death penalty for Moussaoui. They can't do both and perform their constitutional obligations in this situation."
Surprisingly, federal prosecutors agree with Mr. Moussaoui's lawyers in wanting to see the case dismissed, but for quite different reasons. A dismissal would allow the Justice Department to take the case to an appeals court which has a reputation for ruling in favor of the government in cases involving sensitive national security issues.
The next move will likely be transferring the Moussaoui case to a military tribunal, which President Bush authorized to try enemy combatants in the war on terrorism. The rights of a defendant are much more restricted in a military tribunal.
"This case to me really proves the wisdom, the need to have a military justice system because our civilian justice system is just not suited to dealing with those types of issues," said attorney David Rivkin, who served as a Justice Department prosecutor during the first Bush administration. "These are not garden variety (the usual kind of) crimes. These are not rapes, murders, bank robberies and assaults."
In fact, prosecutors have strongly suggested that if the case against the only person charged in the United States with involvement in the September 11 attacks cannot be tried in criminal court, Zacarias Moussaoui would in fact, be declared an enemy combatant and placed before a military tribunal where his rights as a defendant would be far more limited.