John Ashcroft appealed Judge Brinkema's ruling. He said that bin al-Shaibah must not be allowed to testify because such testimony would "certainly" violate national security. Because of Ashcroft's appeal Brinkema was forced to indefinitely postpone Moussaoui's trial â it couldn't continue until Moussaoui was allowed to depose witnesses in his favor.
Ashcroft's appeal was denied on a technicality â but the door was left open for him to appeal later. With Ashcroft's appeal denied, Judge Brinkema demanded to know whether Ashcroft would comply with her order.
The Department of Justice has now said, as Reuters reports, that it will refuse Judge Brinkema's ruling. It will simply ignore it. It will not give Moussaoui the ability to question witnesses in his favor. It will do no such thing, it has said.
"The deposition, which would involve an admitted and unrepentant terrorist (the defendant) questioning one of his al Qaeda confederates would necessarily result in the unauthorized disclosure of classified information," the government said.
That's right. The government says it cannot allow Moussaoui to depose bin al-Shaibah because classified information may be leaked. But leaked to whom? The questioning can be conducted behind closed doors. Only the defendant, the witness, the judge and the lawyers on the case need hear the testimony. The lawyers trying the case already have security clearances â secret evidence is already being used at this trial. The judge, of course, is cleared. So who's to get classified information? Moussaoui or bin al-Shaibah? Well, they're both already in custody.
Now that the Department of Justice has refused to obey the judge's decision the judge doesn't have very many options. The judge can drop some charges against Moussaoui, or she can order all mention of bin al-Shaibah removed from the indictment. More likely, however, she can drop all charges against Moussaoui on the grounds that he cannot be given a fair, constitutional trial if Ashcroft refuses to respect the Constitution of the United States â the very same document he has sworn an oath to uphold.
If charges are dismissed against Moussaoui and he is actually guilty, then justice is certainly not served by allowing him to get away scott free. But justice would also not be served by the alternative. The Department of Justice has already stated publicly that if charges against Moussaoui are dismissed because of pesky constitutional "technicalities" that they will simply have him declared an "enemy combatant" and arrested by the military.
Once Moussaoui is arrested by the military, which will almost certainly happen if charges against him are dropped, he will lose all rights and protections under the Constitution, at least according to the Bush Administration. In reality, the Constitution would still apply â but in practice it would not.
The government cannot simply try someone in a civil court with the full protection of the Constitution until something goes wrong, and then decide to switch systems midstream. It cannot suddenly decide to deny Constitutional protection to someone because it looks like they may lose. It can't act like a spoiled schoolchild, changing the rules of the game mid-play. Not only would the Bush Administration's strategy in the case against Moussaoui violate the Sixth Amendment of the Constitution, it would also violate the Fifth Amendment double jeopardy clause, which reads "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb."
Of course, trial for Moussaoui by military commission would violate more than that single clause of the Fifth Amendment. It would violate nearly the entire Fifth Amendment, which reads:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
It's easy to justify the vacating of certain Constitutional rights for extreme cases like Moussaoui. In so doing, however, we forget two essential facts. First, Moussaoui may well be innocent. We don't know what the evidence against him is â we only know that the government says he is guilty. The government says many people are guilty when they are, in fact, innocent. Why should the situation in terrorism cases be any different, especially when there is such significant political pressure to find and punish someone, anyone?
Second, we forget that our legal system is based on precedent. If they can ignore the Constitution in the prosecution of Moussaoui then they can ignore the Constitution when they finally come for us. If they can vacate the Sixth and Fifth Amendments in going after suspected terrorists then they can vacate the Sixth and Fifth Amendments when prosecuting you for some crime you did not commit. That's how our legal system works, for better or worse.
The fact is that the Constitution is there for a reason. It's written like it is for a reason. It's written specifically to protect us from government. It's written to prevent people like John Ashcroft from railroading American citizens and visitors to America. It's written to protect us from the enormous, overwhelming power of the State.
If we don't have the Constitution to protect us â if the government doesn't respect the Constitution and the citizenry don't react strongly to protect the Constitution â then we have nothing to protect us. If we don't have the Constitution then we're no different than any other country. If we don't have the Constitution then anything can happen here. If we don't have the Constitution then any despot can take power in an election and use the incredible power of the Federal Government in order to mantain power, stomping on anyone necessary with the giant jackboot of the poorly named Department of Justice.
We must not allow this situation to get any worse than it already is. The Constitution must be protected. Zacarias Moussaoui, no matter how much we may detest him, must be allowed to call witnesses in his defense. He must not be tried by a military commission made up of employees of the President â people who are therefore beholden to the President and must feel pressure to vote as he wants. He must be tried by a jury of his peers, with all the protections the Constitution and Common Law afford.
