Newspaper article The Christian Science Monitor

In Moussaoui Tangle, Glimpse of Terror's Legal Tug of War ; His Case May Help Determine Reliance on Courtroom or Battlefield Tactics

Newspaper article The Christian Science Monitor

In Moussaoui Tangle, Glimpse of Terror's Legal Tug of War ; His Case May Help Determine Reliance on Courtroom or Battlefield Tactics

Article excerpt

Almost a year ago, Zacarias Moussaoui sat down in his jail cell and scrawled a handwritten legal brief to a federal judge.

"The 6 Amendment give the right to an accuse to see evidence against him," he wrote, in part.

Although his English isn't perfect, Mr. Moussaoui's legal analysis couldn't have been more prophetic. In the year since Moussaoui wrote those words, the Sixth Amendment has emerged as a major obstacle to Justice Department efforts to prosecute the only man charged in an American court with involvement in the Sept. 11 terror attacks.

And it highlights the difficulty - some say impossibility - of waging a war on terrorism from two contradictory perspectives at the same time. Some terror suspects are treated as criminal defendants, deserving the protections of the US Constitution, while others are held as battlefield prisoners, with few rights, if any.

When those two systems encounter each other, something must give, legal analysts say. That's what is happening in the Moussaoui case.

The new stumbling block

The refusal this week by federal prosecutors to make available for defense questioning a key unindicted co-conspirator in the Sept. 11 attacks (who is being held overseas as an enemy combatant) is raising the prospect that some or all of the criminal charges against Moussaoui might soon be dismissed by the federal judge in his case.

Should that happen, legal analysts say, it wouldn't necessarily result in Moussaoui walking free. Instead, he could be whisked off to a military prison after being designated by President Bush also as an "enemy combatant," analysts say.

Legal analysts are divided over what the courts might do. But several say the Sixth Amendment issue, which guarantees access to witnesses and evidence, is just the beginning. In broader terms, the increasing difficulties in prosecuting cases like Moussaoui's are in large part the result of an ongoing tug of war within the Bush administration over how best to wage the war on terrorism, they say.

At its most basic, it comes down to a dispute over whether to rely primarily on the tactics of the courtroom or those of the battlefield. So far, the administration has used both, with inconsistent, confusing - and controversial - results, analysts say. "This is the problem when you start to blur the areas of the law of war and our normal criminal justice system," says Scott Silliman, executive director of the Center on Law, Ethics, and National Security at Duke University Law School in Durham, N.C. "It is a kind of maze the government is trying to negotiate now."

The issue came to a head after the federal judge in Moussaoui's case, Leonie Brinkema, ordered the government to allow Moussaoui's lawyers to question Ramzi bin al-Shibh, an admitted key planner of the Sept. 11 attacks. Mr. Shibh is being held and interrogated by the US military in an undisclosed country. …

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