The Moussaoui Muddle

With great fanfare, the Justice Department trumpeted the arrest in 2001 of Zacarias Moussaoui, the alleged "20th hijacker" in the 9/11 plot. Federal prosecutors boasted that his trial in a civilian court would show that the US criminal-justice system could deal openly with terrorism suspects.

It hasn't turned out that way.

The federal government charged Mr. Moussaoui - a French citizen of Moroccan descent - with crimes related to the 9/11 attacks and is seeking the death penalty. Moussaoui, who is defending himself, admits membership in Al Qaeda but says he did not take part in the 9/11 plot.

The government's case may be undermined by the capture over the past year of three senior Al Qaeda figures who Moussaoui claims can prove he was not involved. The defendant is demanding his constitutional right to depose the witnesses, who are detained outside the United States. The government says that would upset the interrogation of key terrorists - and understandably doesn't want Moussaoui comparing notes with Al Qaeda leaders. Prosecutors have defied the judge's order to allow the deposition, thereby jeopardizing the government's case.

Now prosecutors are in the bizarre position of asking the judge to dismiss the charges so they can appeal that dismissal to the Fourth Circuit Court of Appeals.

If the appellate court upholds the judge - as it should - the government will probably move Moussaoui to military custody, where he would have fewer rights.

To be fair, prosecutors are in a quandary. The right to question witnesses that may establish one's innocence is fundamental to American justice. The government should protect that right, not argue against it. At the same time, the government has a fundamental duty to protect the public from terrorists.

The Justice Department's prosecutors appear more interested in executing somebody, anybody, than in seeking the truth, as they should be trying to do. That raises the question of what kind of case against Moussaoui the government had to begin with.

The government probably erred when it attempted to try Moussaoui in a civilian court. Prosecutors' only remaining option may be to declare Moussaoui - who is neither a citizen nor a legal resident - an enemy combatant and transfer the case to a military tribunal.