Military Tribunals: Jury Still Out

If it's the world's dumbest terrorist you're looking for, the FBI seems to have nabbed him last summer, when Sept. 11 was still just a day on the calendar. Last week, the man who told flight school instructors that he just wanted to learn to steer an airliner, not to land or take off, found himself facing trial in a public court in Virginia.

The defendant, Zacarias Moussaoui, sometimes described in the press as a "Frenchman" but really about as French as chop suey, may have been the "20th hijacker," who never managed to hijack anything because he was already in custody when his accomplices went to work. Mr. Moussaoui, the first person in the United States to face trial for what happened on Sept. 11, will not be tried before one of President Bush's secret military tribunals but in open court, like any other criminal defendant. This is significant.

In explaining the decision by the White House to try the suspect in the normal way, Vice President Dick Cheney may have betrayed the real reasons for the administration's controversial (and, in my view, legally improper) military tribunals for terrorist suspects. What the vice president told the Washington Times in a telephone interview last week may also serve to discredit the whole notion of the tribunals.

"The decision here clearly was not to move Moussaoui over to the military tribunal, but rather to handle him through the criminal justice system," Mr. Cheney told the Times in an interview published Dec. 19. "That's primarily based on an assessment of the case against Moussaoui, and that it can be handled through the normal criminal justice system without compromising sources or methods of intelligence. And there's a good, strong case against him." [Bush: Moussaoui will not be tried in military court, Washington Times, Dec 19, 2001]

Well, yes, that's the point, isn't it? When there is a "good, strong case" against a suspect, we can try him in the "normal criminal justice system," using normal and well-recognized rules of evidence, and expect to get a conviction. But when we're unable to build such a case, using normal and well-recognized rules of evidence, then we throw the suspect before a military tribunal, which can operate in secret and resort to "rules of evidence" unknown to normal courts, and—still—expect to get a conviction.

What the vice president virtually admitted, in other words, is that the real reason for the military tribunals is not, as President Bush claimed when he unveiled them in November, that public and normal courts might not be able to function in the "crisis" that global terrorism has caused or that the jurors and officials of the court might be subject to intimidation or revenge by the terrorist accomplices of the defendants, but simply that the federal government may not have enough real evidence to convict some suspects under normal procedures. Therefore, it's resorting to irregular procedures for the purpose of getting convictions.

Like certain judges in the Old West, the government is assuring suspects they will certainly receive a fair trial before they are hanged.

As for the need to protect "sources and methods" of intelligence, since when is that a legitimate reason for suspending the normal rules of trial procedure supposedly grounded in the U.S. Constitution? If you can lose your right to a public trial before a jury just because the government doesn't want to discuss satellite reconnaissance telemetry in open court, then we no longer have a constitutional government at all.

Moreover, we have had plenty of espionage and terrorism cases in the past, and disclosure of "sources and methods" of intelligence has never been a problem. Part of the evidence against the Rosenbergs was derived from deciphered Soviet messages, but that never came out in court. The life sentence Israeli spy Jonathan Pollard received was due in part to the nature of the highly classified information he stole, but what it was exactly has never been publicly disclosed. The blunt truth is that you certainly can hold public trials of spies and terrorists without disclosing important secrets, and even if you couldn't, that has nothing to do with what kind of procedures are used in the trial.

There is in fact "a good, strong case" against the world's dumbest terrorist, and there's every reason to get on with building it before the American and world public so everyone will be convinced Mr. Moussaoui really did what he will probably be convicted of doing.

Not the least of the virtues of public trials is that they have that effect—convincing even those who don't want to believe in the guilt or innocence of a suspect that he really is one or the other.

The American government will be stronger, and the forces of terrorism weaker, if that's how we try Mr. Moussaoui's suspected comrades as well.

December 27, 2001