- The Washington Times - Tuesday, December 18, 2001

Somebody at the White House seems to be having second thoughts about the military tribunals.
Zacarias Moussaoui, presumed to have been "the 20th hijacker" on September 11, will go on trial for his life not before a panel of senior military officers, but before a jury of ordinary civilians in a standard-gauge federal courtroom in Virginia.
Attorney General John Ashcroft, a big fan of capital punishment, filed the charges in Alexandria, where jurors are thought to be big fans as well of the electric chair, the gallows, the poison needle or whatever it takes to take a life.
Moussaoui, who was jailed in Minneapolis even before September 11 when investigators learned that he had tried to enroll in classes on how to fly but not take off and land, ought to be the perfect candidate for the military tribunals. He's a French citizen (of Moroccan extraction), with no uncontested claim to the rights of U.S. citizens and the president could make a solid claim that he is, in fact, a terrorist, one of the stipulations in the executive order authorizing the tribunals.
The trial is likely to be public, though without the television cameras that turn lawyers into showboats and hot dogs and often into clowns. Despite the decorum and gravitas that usually sets federal courtrooms apart from the ordinary county courthouse, the trial will inevitably descend into spectacle. Celebrated showboats, preening grandstanders and famous hot dogs are already lining up for auditions.
Alan Dershowitz, the Harvard professor who had a supporting role in the O.J. Simpson trial, dispatched his resume yesterday in the form of commentary in the National Post, the Toronto newspaper, arguing that the infamous Osama bin Laden videotape not only doesn't prove bin Laden guilty of plotting the September 11 outrages but in fact makes it easier for a canny and imaginative lawyer (he could give you a name and telephone number) to defend Moussaoui.
"It is as important to focus on what is missing from the tape as what is present on it," argues Mr. Dershowitz. "There is nothing on the tape that reveals bin Laden possessed information only a person guilty of planning this horrible crime would possess. In other words, the truth of the incriminating statements made on the tape is not self-proving: It relies on believing bin Laden is telling the truth."
However, the tape is powerful psychological evidence of guilt, and he concedes that no judge is likely to exclude it and few jurors could put it aside, or even circumscribe their consideration of the moral as opposed to legal guilt the tape so stunningly proves. Mr. Dershowitz thinks it possible that the defense would try harder to get the tape admitted into evidence, first to show that although bin Laden names Mohamed Atta as the leader of the terrorists he never mentions Zacarias Moussaoui, and that bin Laden's wickedly cynical assertion that some of the terrorists did not know it was a suicide mission proves that Moussaoui was unaware of the specifics of the conspiracy.
But the tape does not make thin soup, as Mr. Dershowitz cheerfully acknowledges, and Moussaoui's lawyers, whoever they turn out to be, will have a steep climb in any courtroom, and probably steepest of all before a jury of civilians. (Most pundits and most of the public reckon the terrorists should be dispatched even without a trial.) A panel of military officers, capable by training of restraining emotion in behalf of cold reason, would be more likely to give proper weight to all the evidence.
This nevertheless makes the administration's decision to put Moussaoui on trial in a U.S. District Court, with constitutional safeguards, reassuring, that cool heads have prevailed not in the interests of a terrorist, but in the interests of American due process. We're better than Syria, Saudi Arabia or another Islamic satrapy, and we ought to act like it.
The Defense Department, which would be charged with the responsibility for organizing the tribunals, conducting the trials and arranging the executions, is wary of that task. Some of the department's lawyers are offended by the real possibility that the tribunals, which have few of the safeguards of a military court-martial (not least being the right of appeal), would reflect badly on the integrity of military justice. Donald Rumsfeld, the secretary of defense, has taken pains to say that the controversy over the tribunals has been helpful, not distracting.
John Ashcroft seems to have been sobered by the adamant refusal of European allies to extradite suspects who face death before an American military tribunal. Hence the decision, which may not have been so reluctant as all that, to send Zacarias Moussaoui to trial in Virginia, where a civilian hangman waits.

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