Wartime justice

The United States has captured and detained several al Qaeda enemy combatants implicated in the September 11 abominations. Extracting intelligence from the detainees is urgent to thwart new editions of September 11, 2001. That wartime objective would be frustrated by their contact with defense counsel representing al Qaeda operative, Zacarias Moussaoui, under indictment for six conspiracies linked to the September 11 mass murders. Access could disclose sources and methods, and shipwreck any further cooperation with the United States military or intelligence services.

The U.S. 4th Circuit Court of Appeals last Thursday thus correctly held in United States vs. Moussaoui (April 22, 2004), that a defendant’s Sixth Amendment right to call favorable witnesses does not entitle Moussaoui to interrogate enemy combatants in hopes of eliciting exculpatory testimony at the expense of defeating global terrorism. The Bill of Rights, as former Nuremburg prosecutor and Supreme Court Justice Robert Jackson lectured in Terminiello vs. Chicago (1949), is not a suicide pact.

According to the indictment, Moussaoui attended an al Qaeda training camp in April 1998. He arrived in the United States in late February 2001 to commence flight lessons in Norman, Okla. His behavior thereafter mirrored that of the September 11 hijackers. The death penalty is sought on four counts.

During pretrial skirmishing, the United States captured a key al Qaeda figure who otherwise would have been unavailable to Moussaoui. He sought to exploit that accident of war by demanding access to the enemy combatant as a prospective defense witness. The Sixth Amendment provides that, “In all criminal prosecutions, the accused shall enjoy the right … to have compulsory process for obtaining witnesses in his favor.”

The U.S. District Court for the Eastern District of Virginia found the enemy detainee could offer material testimony as to Moussaoui’s asserted noninvolvement in the September 11 barbarities. It thus ordered a remote video deposition of the enemy combatant witness in an undisclosed location with Moussaoui, standby counsel, and counsel for the government assembled in the presence of the court.

The district court also concluded that substitute summaries of the enemy witness’ classified statements to the military and intelligence communities proffered by the government would compromise Moussaoui’s defense. They were both unreliable and fragmentary, the district court maintained.

It subsequently granted Moussaoui access to two additional al Qaeda enemy combatants under identical conditions. The government balked at compliance. The court thus foreclosed the death penalty and prohibited the government “from making any argument, or offering any evidence, suggesting that the defendant had any involvement in, or knowledge of, the September 11 attacks.”

The court of appeals reversed in reliance on the war powers banner of Congress and the president. The enemy combatant witnesses are priceless intelligence sources. Interrupting their interrogations will cripple the government’s ability to gather information that might prevent future terrorist attacks. Moreover, if the president’s assurances of confidentiality to leaders and intelligence services of foreign countries can be abrogated by the judiciary, collaboration in counterterrorism would be devastated. Finally, as the Supreme Court trumpeted in Johnson vs. Eisentrager (1950), judicial intermeddling with the war tactics of commanders would embolden the enemy and demoralize both allies and wavering neutrals.

But all constitutional powers and rights are matters of degree. Thus, President Harry Truman’s claim of Korean War necessity did not stop the Supreme Court in Youngstown Sheet & Tube Co. vs. Sawyer (1952) from blocking his seizure of a private steel mill threatened with a union strike. Similarly, a defendant’s Sixth Amendment right to call favorable witnesses does not prohibit good faith deportations by the government putting them beyond a court’s jurisdiction; nor does it require the government to grant defense witnesses immunity from criminal prosecution to overcome their right to silence.

The amendment works only as an auxiliary to the privilege against self-incrimination, jury unanimity, and the prosecutor’s obligation to prove guilt beyond a reasonable doubt to prevent convicting the innocent.

The three enemy combatant witness statements in Moussaoui’s would tend to discredit the prosecution’s theory that he was slated to pilot a fifth plane into the White House and was implicated in the September 11 villainies. The court of appeals thus declared he is entitled to submit them to the jury in lieu of live witnesses or deposition testimonies.

The jury must be informed the statements are surrogates for live testimony; that circumstantial evidence confirms their reliability; and, that neither the parties nor the district court have enjoyed access to the witnesses.

The Moussaoui decree is undisturbing to a reliable verdict. A jury would probably disbelieve any favorable live testimonies from al Qaeda enemies of the United States, notorious for scorning the rule of law and civilized values. While other September 11 prosecutions could present irreconcilable conflicts between national security and a fair trial, Moussaoui’s case does not.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.