- The Washington Times - Monday, October 13, 2003

United States District Judge Leonie M. Brinkema erroneously clipped the prosecution of Zacarias Moussaoui for a witch’s brew of terrorism crimes earlier this month in United States vs. Moussaoui (Oct. 2, 2003).

According to Judge Brinkema, the constitutional right of a defendant to a fair trail forbids the United States from seeking the death penalty or insinuating Moussaoui was implicated in the September 11, 2001, abominations as sanctions for its refusal to permit defense depositions of detained al Qaeda associates captured in the war against terrorism.

The United States balked because the al Qaeda detainees would probably cease providing counterterrorism intelligence after contact with Moussaoui’s counsel.

Moussaoui is a French citizen of Moroccan origin who has openly celebrated his membership in al Qaeda and allegiance to indicted arch-terrorist Osama bin Laden. The crimes charged are chilling: conspiracies to commit international terrorism, aircraft piracy, destroy aircraft, use weapons of mass destruction, murder employees of the United States, and destroy property. A prosecution theory is that Moussaoui was scheduled to pilot a fifth hijacked airplane to crash into the White House and should be executed.

Moussaoui denies any September 11 villainy. He insists he was complicit only in an operation planned outside the United States after September 11 and involving different members of al Qaeda. The defense argues that pretrial access to certain al Qaeda prisoners of war and their trial testimonies are necessary to exonerate Moussaoui from the claim he was an intended “20th” September 11 hijacker whose aim to pilot a plane into the White House was foiled.

In an earlier memorandum opinion issued March 10 of this year, Judge Brinkema had concluded the Sixth Amendment right to secure witnesses favorable to the accused required that the government accede to Moussaoui’s demand to question the al Qaeda detainees. She disputed that the urgent national interest in securing intelligence from enemy prisoners to thwart second editions of September 11 or lesser vileness justified the government’s resistance. But the Sixth Amendment customarily bows to the good faith pursuit of conflicting executive functions.

In United States vs. Valenzuela-Bernal (1982), for example, the Supreme Court upheld the deportation of an alien witness as consistent with the amendment despite the loss of potentially exculpatory testimony to the defendant. Similarly, the U.S. 4th Circuit Court of Appeals lectured in United States vs. Gravely (1988) that a defendant could not compel the government to immunize a witness in lieu of a criminal prosecution to ensure his availability to provide defense testimony. And in United States vs. Truong (1980), the same federal appellate court found no Sixth Amendment fault in a request by the United States to a foreign government to recall a national for criminal misconduct despite his desired use as a defense witness in a pending prosecution.

Judge Brinkema maintained that to secure the trial testimony of the al Qaeda prisoners and to lose critical intelligence necessary to save the lives of countless American civilians and soldiers might impair but would not cripple our war against terrorism. She asserted that court precedents tempered the Sixth Amendment only when strict compliance would completely frustrate an executive function, such as criminal prosecution of an immunized witness. But in Venezuela-Bernal, the government could have deferred deportation to make the alien available as a defense witness. And in Truong, the government could have delayed the request for the recall of a foreign national without destroying diplomatic relations to accommodate the defendant’s desire to use the expellee as a defense witness.

Moreover, the Sixth Amendment stands common sense on its head if interpreted to deny exculpatory testimony to a defendant to punish a witness for marijuana possession but not to secure counterterrorism intelligence to prevent countless American casualties.

Even assuming Judge Brinkema’s Sixth Amendment interpretation were unassailable, the sanctions imposed on Oct. 2 are unsupportable. The district judge reasoned: “Particularly in light of the government’s concessions regarding the nature and scope of the conspiracies and the marginal relevance of the allegations concerning the September 11 attacks to the charges against Moussaoui, as an additional sanction [to the death penalty prohibition], the government will be foreclosed at trial from making any argument, or offering any evidence, suggesting that the defendant had any involvement in, or knowledge of, the September 11 attacks. It would simply be unfair to require Moussaoui to defend against such prejudicial accusations while being denied the ability to present testimony from witnesses who could assist him in contradicting those accusations.”

But the more enlightened and fairer sanction would have been to permit the defense to urge the jury to draw an adverse inference against any Moussaoui-September 11 connection because of the unavailability of exculpatory testimony from al Qaeda prisoners, and to permit the government to present incriminating evidence and argument.

The Sixth Amendment right “to have compulsory process for obtaining [defense] witnesses” tolerates compromises in promoting reliable verdicts to accommodate competing objectives of equal or greater urgency. On that score, doesn’t the war against al Qaeda and global terrorism justify a compromise in the prosecution of terrorism crimes?

Bruce Fein is a founding partner of Fein & Fein.

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