- The Washington Times - Monday, September 20, 2004

Zacarias Moussaoui is on trial for terrorism conspiracies linked to the September 11, 2001, abominations. The Constitution ordains rules that strongly favor acquittal: proof beyond a reasonable doubt; jury unanimity; the privilege against self-incrimination; the exclusion of reliable but illegally seized evidence; and, the right to confront adverse witnesses, the greatest engine every invented for the discovery of truth.

But according to the U.S. 4th Circuit Court of Appeals, that fortress of protections against convicting the innocent requires further buttressing. Last week in United States vs. Moussaoui (Sept. 13, 2004), the court held Moussaoui also enjoys a Sixth Amendment right of access to three al Qaeda enemy combatant detainees captured in the war on terrorism (Witnesses A, B and C) who might provide exculpatory testimony. The decision seems a wrongheaded interference with the president’s constitutional power to wage war.

Concurrently with its prosecution of Moussaoui, the executive branch has attacked al Qaeda, which resulted in the captures of Witnesses A, B and C. If the war had not been undertaken or the three had not been captured and detained in American custody, Moussaoui would inarguably have held no constitutional right to demand the government hunt down the allegedly exculpatory witnesses to assist his defense.

The Sixth Amendment declares that “[i]n all criminal prosecutions, the accused shall enjoy the right … to have compulsory process for obtaining witnesses in his favor.” But as the court of appeals recognized, the right is circumscribed by the government’s power to provide it.

Thus, the compulsory process obligation of the government does not extend to foreign nationals detained abroad. If the government had not captured Witnesses A, B and C, Moussaoui would have been denied a right of access, even if their testimonies would have uniformly maintained the indicted terrorist was as innocent as Snow White. Ditto if the three had been transferred to their countries of origin. According to the Pentagon, at present, 191 detainees have been transferred from Guantanamo either to the custody of their home countries or to be released. The receiving countries include Pakistan, Russia, Morocco and Saudi Arabia.

In sum, Witnesses A,B and C would be inaccessible to Moussaoui but for sheer luck. Indeed, the reasoning of the appeals court suggests they would have remained inaccessible if the United States had placed them in the custody of a friendly foreign government that had agreed to their questioning by the CIA and FBI. The court of appeals exalted form over substance in granting Moussaoui access.

The Constitution guarantees fair trials but not perfection. It recognizes that to eliminate the slightest chance of convicting the innocent would cripple government. The Sixth Amendment right to counsel, for example, entitles the accused to competent counsel but not to a fleet of legal geniuses whose collective talents would reduce the risk of conviction, as in the O.J. Simpson prosecution. A concession to the limited budgets of government justifies the standard of mediocrity for appointed counsel despite the greater probability of an erroneous guilty verdict. And the mediocrity standard remains unchanged even when the government throws an army of its best lawyers behind the prosecution.

Access to exculpatory witnesses may be denied because of the Fifth Amendment privilege against self-incrimination. Suppose the witness is guilty of the murder for which the defendant is charged. The witness enjoys a Fifth Amendment right to silence, even if it means a wrongful conviction and death sentence. On the other hand, the government may grant criminal justice immunity to overcome a prosecution witness’ Fifth Amendment privilege, thus enhancing the prospects of conviction. The defendant holds no reciprocal immunity power. The discrepancy is explained by the legitimate government interest in deciding who should be prosecuted and who should escape prosecution because their testimony is indispensable to convicting a more dangerous wretch.

The executive branch shouldered no duty either to capture Witnesses A, B or C, or to hold them in American custody on behalf of Moussaoui irrespective of the centrality of their testimonies to his defense. Indeed, Moussaoui’s right to a fair trial would not be compromised if the three escaped and returned to warring against the United States along the Pakistan-Afghanistan border. The court of appeals stumbled by insisting a defendant’s right to compulsory process “is integral to our adversarial system of justice.” If that were true, the accused would be crowned with a right to confer immunity on defense witnesses or to require the U.S. military to seek and to apprehend abroad persons whose testimony might tend to exonerate him.

A defendant’s access to al Qaeda detainees would frustrate the government’s collection of intelligence and distort military decisions in the capture and detention of al Qaeda members. The power to wage war successfully is too important to bow to a defendant’s opportunistic claim to compulsory process come upon by pure luck. The 4th Circuit erred in holding otherwise.

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

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