Ya Can't Make Us, and We Double, Triple Dare Ya

[khaosworks]

U.S. Will Defy Court's Order in Terror Case
By PHILIP SHENON

WASHINGTON, July 14 - The Justice Department said today that it would defy a court order and refuse to make a captured member of Al Qaeda available for testimony in the case of Zacarias Moussaoui.

The department acknowledged that its decision could force a federal judge to dismiss the indictment against Mr. Moussaoui, the only person facing trial in the United States in connection with the attacks of Sept. 11, 2001.

In court papers, the department said Attorney General John Ashcroft had determined that testimony from the accused terrorist Ramzi bin al-Shibh, a confessed participant in the Sept. 11 attacks, "would necessarily result in the unauthorized disclosure of classified information" and that "such a scenario is unacceptable to the government."

"The government recognizes that the attorney general's objection means that the deposition cannot go forward and obligates the court now to dismiss the indictment unless the court finds that the interests of justice can be served by another action," the department said in the papers filed in Federal District Court in Alexandria, Va.

Bush administration officials have said for months that if Mr. Moussaoui's indictment were dismissed, his prosecution would almost certainly be moved to a military tribunal, where Mr. Moussaoui would be expected to have fewer rights to gather testimony from witnesses like Mr. bin al-Shibh.

The Justice Department's decision had long been expected and came after extended courtroom battles before Judge Leonie M. Brinkema, the trial judge, in which the department insisted that testimony from Mr. bin al-Shibh would damage national security. Judge Brinkema had set a deadline of today for the department to state its plans for the case.

Mr. bin al-Shibh, of Yemen, was captured last year in Pakistan. He is identified in Mr. Moussaoui's indictment as the go-between for Mr. Moussaoui and the Sept. 11 hijackers.

Administration officials say they are worried that if Mr. Moussaoui is allowed to interview Mr. bin al-Shibh, it will open the door for other terrorist suspects to demand access to captured Qaeda members, undermining those prosecutions as well.

Despite the government's objections, Judge Brinkema has ruled that Mr. Moussaoui, who has pleaded not guilty and is facing the death penalty, has a constitutional right to question Mr. bin al-Shibh, and the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., has declined to overrule her decision.

In its latest rulings, the appeals court said today that it had rejected a government motion that would have effectively frozen activity in Judge Brinkema's court.

On a 7-to-5 vote, the court also turned down a Justice Department request that the full court reconsider a decision made last month by a panel of three of its judges that upheld Judge Brinkema's decision to allow Mr. Moussaoui access to Mr. bin al-Shibh. The three-judge panel said that, at this point in the pre-trial preparations, it had no jurisidiction to intervene.

In penalizing the department for its refusal to produce Mr. bin al-Shibh, the judge has options apart from dismissing the entire case, including dismissal of some of the charges; she could also allow the trial to go forward but with a requirement that the jury be given instructions that would be damaging to the prosecution's case.

The department said that the decision to block Mr. bin al-Shibh's testimony had been made by Mr. Ashcroft, and that his reasoning was explained in a classified affidavit filed with Judge Brinkema.

"The government has established the damage to national security that such a deposition would cause," the department 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.

"Such a scenario is unacceptable to the government, which not only carries the responsibility of prosecuting the defendant, but also of protecting this nation's security at a time of war with an enemy who has already murdered thousands of our citizens."

Mr. Moussaoui, a French citizen who was arrested in Minnesota on immigration charges in August 2001, has acknowledged that he is a member of Al Qaeda and is loyal to Osama bin Laden. But he has insisted that he had nothing to do with the Sept. 11 attacks, a claim he has repeatedly made in handwritten court motions. Mr. Moussaoui, who is trying to act as his own lawyer, has said that Mr. bin al-Shibh has information that could prove his innocence.

The government has said Mr. bin al-Shibh is being interrogated at a secret place overseas.

I've quoted the full article for those of you who don't want to register at the New York Times. Live off the grid! Be a Blank!

Anyway, this move by Justice is not unexpected. The intention of Ashcroft's boys is obvious of course - they think they can get Moussaoui's trial moved to a military tribunal, a fine show of legal maneuvering from a department that's supposed to uphold Justice. What many people don't realize that the Justice Department isn't really there to uphold justice - it's there to be the government's lawyers, and they are willing and able to be sneaky and slimy as any other lawyer. One of my colleagues and I used to have long talks about how come some Prosecutors sometimes play the same dirty tricks as the Defence and I had to sadly disillusion him (he had never been a litigator himself) that the idealized version of the world we were taught in Law School, of Prosecutors being objective defenders of the Law first and foremost who use their discretion just as much not to punish as to punish was all, well bullshit. There is no obligation on the part of any Prosecutor to play nice - the only obligation is the same thing that binds the other side, to do it within the confines of the law. Yes, you can play nice, and I sometimes did, but that was up to the individual's conscience, so while everyone's entitled to get outraged at this betrayal of ideals, no one should be overly shocked that it is capable of happening, or even that it happens. I used to quote J. Edgar Hoover's remark to people all the time: "Justice is incidental to Law and Order."

But back to the Moussaoui trial - is there a way out of this checkmate position Justice is trying to push the Court into? Maybe, but I'm not familiar with US Federal Rules of Evidence and don't know if a similar provision exists. In the Singapore Evidence Act there is a provision known as Section 116 illustration (g) that is invoked when a party in a trial fails to call a witness that is material and relevant. Without going into the minutiae of how the provision operates, it basically says that if such a thing happens, the Court as finder of fact is entitled to presume that the evidence of the missing witness would have been adverse to the defaulting party's case.

In other words, if the witness is material and relevant, and Justice doesn't call him, the Court is entitled to tell the jury to assume the evidence wasn't going to go Justice's way. And that might lead to an acquital. This is a purely hypothetical solution, of course, and even if such a provision existed and was identical in operation to the Singapore law, there are more legal maneuverings to try to get around it, but if there is in any way a similar evidentiary law in the US, that's the way to go for the Court to get out of check.

More and more you see evidence that it's not Bush that's the problem - it's the neocons that pull his strings. Gird up your loins, O America - there's just over a year left to kick these bastards back to where they came from.

Comments

[stemware.livejournal.com]

Yeah I read the Washington Post version of this story this morning and was rather amused. One would think that a publicly employed prosecutor could be jailed for contempt of court for failure to comply with a court order, but I guess not.