The U.S. government has said that it will defy the Court’s order in the Moussaoui case and refuse to allow Moussaoui and his defense team access to Ramzi bin al-Shibh. For those of you who don’t know, bin al-Shibh is a caputured al-qaeda member that the court determined had evidence that would materially assist Moussaoui in his defense.
**
Now the betting is that the feds will shift Moussaoui’s case to one of its military tribunals. But I see two big problems with that.
First, the military tribunal dodge was only originally even theoretically acceptable because “enemy combatants” did not come under the jurisdiction of either the American court system or the federal constitution. In other words, if they were not American citizens and never set foot on U.S. soil, the judicial branch never acquired jurisdiction over their cases. Obviously, this doesn’t apply in Moussaoui’s case. The federal courts do have jurisdiction and he is entitled to the protection of the U.S. Constitution. The executive branch simply has no authority to divest the courts of jurisdiction by waiving a pen.
Second, and more fundamentally, Moussaoui ought still to be entitled to Ramzi bin al-Shibh’s evidence even in a military tribunal. The problem the government has here is that this is not some dispute over procedure, it’s an issue of basic fairness. As I read it, Brinkema, the trial judge, has found that Moussaoui is entitled to the disputed evidence on grounds of fundamental fairness. In other words, Ramzi bin al-Shibh’s evidence is necessary to Moussaoui’s defence.
The government has, to turn a colourful phrase, screwed the pooch. If the military tribunals are fair, they, too, will have to allow Moussaoui access to this evidence. If they don’t, the entire military tribunal system will lack any shred of legitimacy and be derided as a kangaroo court the world over.
My solution is to make a big deal about American fairness and judicial independence and simply cut Moussaoui loose. Maybe they can fit Moussaoui up with one of those tracking collars they use on whales and turn it into an intelligence coup. Somehow I doubt that Lord Protector Ashcroft and the administration will see eye-to-eye with me on this.