- The Washington Times - Thursday, March 23, 2006

The charades in Alexandria and Baghdad last week are final confirmation that the Bush administration has grievously erred in trying the Zacarias Moussaoui and Saddam Hussein cases in civilian courts instead of military tribunals. By attempting to use the trials as public-relations tools to demonstrate fair judicial process, the administration has disregarded the fact the clear and present danger posed by al Qaeda and the Iraqi insurgency require harsher procedures and penalties than those afforded by traditional criminal prosecution. Furthermore, both defendants have repeatedly rejected the validity of our judicial process, and use the trials instead to preach to their followers and sympathizers. Thus, instead of enhancing American national security, these botched cases may have even strengthened our enemies.

Does the United States owe due process of civilian law to Moussaoui or Saddam? The answer is clearly and emphatically no. In wartime, a government is not obliged to provide enemy combatants the privileges and protections associated with a civilian criminal trial.

It was a mistake to assume that our commitment to due process — and our desire to showcase this to the world — would substitute for the unflinching and uncompromising fortitude necessary to mete justice in these extraordinary situations. While civilian criminal procedure presumes innocence until proven guilty, it also presupposes the defendant’s acceptance of the inherent power of the court. As Hobbes observed in Leviathan: “Before the names of Just and Unjust can have place, there must be some coercive power.” In current circumstances, that is exactly the logic behind a military tribunal.

There is clear justification for trying Moussaoui and Saddam through military commission. The United States is at war with both al Qaeda and the insurgency in Iraq, a remnant of Saddam’s regime. Both defendants were captured in the course of the war and violated the laws of armed conflict: Moussaoui, who is not a US citizen, conspired in the attacks on US civilians; Hussein tortured and used chemical weapons against his own people.

The ineptitude evidenced by the Moussaoui sentencing demonstrates why the judicial system is not equipped to handle terrorists. The current focus on TSA attorney Carla Martin, who in her stupidity violated Judge Leonie Brinkema’s order and shared transcripts with key federal witnesses, should not detract from the main issue of whether Moussaoui deserves the death penalty for his confessed role in the September 11 attacks.

In fact, the system had failed much earlier in this trial. Since its outset, Moussaoui repeatedly stated his contempt for the court and said that he was using the trial as means to preach al Qaeda’s platform through the media. As early as 2003, Moussaoui made the incredulous demand to call captive al-Qaeda members as witnesses, including September 11 mastermind Khalid Shaikh Mohammed.

We can be thankful only that these events took place after Moussaoui had already confessed: a mistrial would have been almost certain if Miss Martin’s behavior occurred during the actual trial. Some legal analysts have already begun to consider the frightening possibility that the government’s incompetence could lead to a full acquittal, and that Moussaoui could yet go free.

The farce that has become Saddam’s trial is even more disturbing because of its harmful effect on U.S. national security. By empowered the insurgency, the trial has increased the risk to U.S. troops and compromised our mission in Iraq. The court has inadvertedly given Saddam a bully pulpit; the man who was once a captured by U.S. forces at gunpoint in a foxhole now boasts that he is still the president of Iraq and openly praises the insurgency. “Unite and resist the invaders and their backers,” he addressed the insurgents last week. “In my eyes, you are the resistance to the American invasion.” It is all too clear that Saddam does not see himself as defeated.

Unlike the Nazis at Nuremberg, who had suffered complete and total defeat at the hands of the Allies, Saddam actually believes that he is the legitimate ruler of Iraq who could return to power if the U.S. were to leave. Doubts about the U.S. commitment to Iraq only strengthen this defiance. If he thinks the U.S. might leave Iraq behind with his case before the still incompetent Iraqi judicial system, why should he not continue delaying his trial with these outbursts?

In order to fulfill its vow to bring justice to our enemies, the administration needs to regain the offensive in prosecuting captives in the war on terror and stop trying to use these cases as tools to enhance American image abroad. The Battle Hymn of the Republic alludes to justice as a “terrible swift sword.” Our public relations will be better served through this metaphor than by the failed attempts to treat terrorists or despots “fairly.” In dealing with our cruelest of adversaries, military justice may be the only sensible course.

Eric Leskly is a terror analyst and writer based in Washington.

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