In Moussaoui tangle, glimpse of terror's legal tug of war

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 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.

The Sixth Amendment requires that potential defense witnesses be made available by the government in the interest of a fair trial. But the Bush administration officials have asked the courts to carve out an exception for significant national-security concerns. No US court has ever recognized such an exception.

Access to Shibh is important to Moussaoui's defense. The single strongest piece of evidence in the indictment linking Moussaoui to Sept. 11 is his alleged receipt of $14,000 wired from Germany by someone named "Ahad Sabet." The indictment says "Ahad Sabet" is an alias used by Shibh. Moussaoui disputes this. He says Sabet and Shibh are different people, and that Shibh can verify this.

Federal prosecutors and defense officials object to making Shibh available, citing national-security concerns. Judge Brinkema crafted a compromise, ruling that Shibh could be questioned via video conference rather than in person or in open court.

But this compromise was unacceptable to the government, analysts say, because it would establish a legal precedent in which a federal judge could order defense officials to make military detainees anywhere in the world available as witnesses in future civilian trials. "What Justice and Defense Department lawyers are saying is if we even allow a crack in the door, that is too much," Mr. Silliman says. "It is not just bin al-Shibh or the Moussaoui case, it is the precedent that is set. They do not want any access to those held overseas."

Administration lawyers say that Mr. Bush enjoys unfettered power as commander in chief in time of war to take action against those he deems "enemy combatants." Civil libertarians disagree. I. Dean Ahmad, president of the Minaret Freedom Institute in Bethesda, Md., says if the president has such power, there is nothing to prevent the administration from designating anyone an enemy combatant.

"If you can't win in the civilian court, just call them an enemy combatant," Mr. Ahmad says. "It is a slippery slope that would leave no American citizen protected."

David Rivkin, a Washington lawyer and former official in both the Reagan and first Bush administrations, says it is now impossible to try Moussaoui in federal court because of the constitutional issues that have arisen. "We should have treated all enemy combatants the same and detain them in the military system," he says.

Silliman says he thinks Brinkema will impose some form of sanctions that fall short of dismissing Moussaoui's indictment. Some of the charges involving Shibh may be dismissed, he says, but the judge will probably leave it up to the government to prove the case or drop the charges.