- The Washington Times - Sunday, July 6, 2003

The latest developments in the case against Zacarias Moussaoui have legal analysts wondering why the Justice Department doesn’t simply name the self-proclaimed al Qaeda member an enemy combatant and give up on trying to wrangle him through the American judicial system.

When a federal appeals court panel mandated this week that it would be premature to overthrow a lower court’s order to allow Moussaoui access to interview Ramzi Binalshibh, a top al Qaeda member, in his attempts to prove his innocence on charges that he conspired with the terrorist group in the September 11 attacks, federal prosecutors suddenly found themselves stuck between a rock and a hard place, said one legal analyst following the case.

The government’s subsequent motion on Tuesday to ask the U.S. Court of Appeals for the 4th Circuit in Richmond to reconsider was little more than an attempt by the prosecutors to “unstick themselves,” said Douglas W. Kmiec, dean of Catholic University’s Columbus School of Law.

The government, said Mr. Kmiec, essentially is trying to use the appeals court to delay having to make public its decision on whether to allow Moussaoui to interview enemy combatants being held and questioned secretly by U.S. authorities in undisclosed locations outside the United States.

The choking effect that the appeals court panel’s mandate and the government’s attempt to have it recalled have had on the Moussaoui case raises questions about why President Bush doesn’t intervene and change Moussaoui’s status the way he has those of other high-profile terrorism suspects in recent months.

On June 23, Mr. Bush may have set a precedent by deciding to designate as an enemy combatant Ali Saleh Kahlan Al-Marri, who had been held in Justice Department custody since late 2001 on charges of lying to the FBI in an investigation into the September 11 attacks.

By plucking Al-Marri from the hands of the Justice Department and putting him at the mercy of the Department of Defense, Mr. Bush made the Qatar native the third person, and the first not a U.S. citizen, since the September 11 attacks, to be designated as an enemy combatant.

If the president intervenes and makes Moussaoui the fourth enemy combatant, it would loosen prosecutors from the quagmire now surrounding the Moussaoui case, because the enemy combatant designation gives the United States the power to try, sentence and even execute terrorism suspects in secret military tribunals under rules that limit their legal rights including opportunities for appeal.

The problem, said Mr. Kmiec, is that “there are some people who believe that we have to demonstrate that our judicial system is capable of handling [such cases].” Moussaoui, a Moroccan-born Frenchman, is the only person facing charges in the United States in connection to the September 11 terrorist attacks.

Perhaps more important, however, is the wave of recriminations likely to make headlines around the world if the United States suddenly were to decide, after nearly two years of trying the case in a federal criminal court, to declare Moussaoui an enemy combatant.

Frank W. Dunham Jr., the federal public defender appointed to assist Moussaoui, who is acting as his own attorney, said there may be a substantial amount of tension behind the scenes in the Moussaoui case between federal agencies involved in the war on terrorism.

“You may have institutional food-fighting going on here,” Mr. Dunham said in an interview this week. “You may have a situation here where the Defense Department and the CIA have one view of what should happen [to Moussaoui] and that the Justice Department has another.”

Mr. Dunham said the core of the issue is that “the Justice Department is desperately trying to avoid being forced to answer the question of whether they would produce the witness.”

“What this dispute is about,” he said, “is whether the government can try a guy and seek to execute him when they are holding a witness they refuse to produce who could exculpate the defendant.”

In his motion to have the appeals court panel’s mandate recalled, Paul J. McNulty, U.S. attorney for the Eastern District of Virginia, where the Moussaoui case is in process, used language that may expose how fiercely opposed the government is to allowing Moussaoui access to any terrorism suspects now held by the United States.

“The government should not be forced to suffer a sanction for refusing to permit a deposition that will endanger national security before obtaining appellate review of the district court’s order,” the motion reads.

Mr. McNulty’s office declined to elaborate on the statement. Instead, he suggested in a telephone interview on Wednesday that he’s most concerned the appeals court panel’s mandate carries detrimental implications that in the future will reach far beyond the Moussaoui case.

“This is a significant issue for our district, given the types of cases we have historically handled. It’s an important thing to get cleared here,” Mr. McNulty said, specifically referring to the reputation of the Eastern District of Virginia for trying international espionage cases.

In his motion to recall the mandate, Mr. McNulty wrote that “if the United States cannot immediately appeal orders requiring the government to provide classified information to a defendant, every espionage defendant now may attempt to force the government into providing the defendant through discovery with more classified information than he had when he was acting as a spy.”

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