The Law and the War on Terror

Observations on two important cases in the news:

1) The government's case against 9/11 conspirator Zacarias Moussaoui got much stronger today. Under oath, he actually admitted that he was planning to fly a fifth plane into the White House as part of the September 11th terror plot. No wonder his lawyers didn't want him to testify. They must have known he would literally hang himself with his own rope.

Maybe he just doesn't realize what he did today. Or maybe he did it deliberately, since he knew he would get the death penalty and be a martyr for the terrorists. Or maybe he just doesn't care anymore and wants to die. In any event, I think the jury will be more than happy to help him along with that. Essentially, his confession today makes the prosecution's case on him being part of a conspiracy, of him knowing about the 9/11 plot ahead of time. He actually admitted that he had prior knowledge, and that he would have taken part in it had he not been captured.

Two observations about the trial...I think the civil libertarians and all the people who insist that these terrorists, or terror suspects, be tried in civilian courts are trying to have it both ways when they try to block people like Moussaoui from testifying on their own behalf. His lawyers did not want him to take the stand, yet the same people who would leap to defend him would also want to prevent him from taking the stand. It just doesn't work that way. You cannot insist on granting terror suspects who are not U.S. citizens constitutional protections, and then manipulate those constitutional protections to get an acquittal. The judge in this case was right to allow Moussaoui to testify. If you have a civilian trial (by the way, I think they should have military tribunals, but that's a whole other post), you have to allow the defendant to take the stand in his or her own defense, if they wish to do so.

Second, I just hope that his testimony won't be called into question by what he said before (he had said before he was to take part in another attack after 9/11, among other things). The defense might try this, but I don't think the jury will buy it. For one thing, they already know this is a terrorist we're dealing with, and the evidence of his culpability, including today's confession, is overwhelming. Also, his actual guilt is not at issue here-the jury's role is to decide whether he gets life in prison without parole, or the death penalty. As long as they are willing to impose it, the weight of the evidence should support aggravating, rather than mitigating, circumstances.

2) On a related note, the Supreme Court is set to hear oral arguments in the case of Hamdan v. Rumsfeld on Wednesday. This is the case involving Salim Ahmed Hamdan, who served as Osama bin Laden's personal driver and bodyguard. He was captured in Afghanistan four years ago, and has been held at Guantanamo Bay ever since. The Court has to confront a difficult issue here-does it affirm the D.C. Circuit's ruling that President Bush does not have the authority to create special military commissions for Guantanamo detainees, or does it reverse, presumably granting them access to civilian courts?

Here is the story on Fox News, which is my source for the information on this case: http://www.foxnews.com/story/0,2933,189268,00.html

Even if the Court reverses the D.C. Circuit, in order for Hamdan to have access to civilian courts to review his habeas petition, the Court would also have to rule that the Detainee Treatment Act, passed by Congress in December 2004, does not apply to petitions filed before the law came into effect. Herein lies the problem-there is no general consensus on where the law applies. Hamdan's side is going to argue for no retroactivity, and that petitions filed before the date are still to be considered. The government will have to lay out the case for retroactivity, under which case a military tribunal would handle Hamdan's case, not the federal courts.

The stakes here cannot be overstated. If the Court sides with the Bush administration, it will uphold the use of military tribunals for the suspects already at Guantanamo, and will be a strong precedent for using tribunals for any suspects that are captured in the future. This would allow the administration to conduct the war on terror with much more secrecy, as most anything that takes place in federal courts is public record. This is absolutely essential when dealing with individuals who would not hesitate to use chemical, biological, or nuclear weapons against our cities if given the chance.

But if the Court sides with Hamdan, it will open the courts up to a wave of habeas petitions from the detainees currently in military custody. It will make the war on terror exponentially more difficult for our military and intelligence services. Every al-Qaeda lowlife that is captured on foreign soil will start demanding a lawyer, demanding rights that belong to American citizens, and generally make it much harder for the government to gather intelligence that might lead to the capture of more of the enemy, or even stop a terrorist attack and save American lives.

The Court must not give our enemies this kind of power, to use our democratic system for their military and propaganda purposes. If the justices grant terrorists access to the federal courts, they will be acting in direct contradiction to the public policy of every conflict fought in the history of this country. There is a reason for this-it will be a Pandora's box of litigation, overly zealous civil libertarians, and paperwork our system was never meant to accomodate in a time of war and national peril.

I will try to elaborate more on my position on this in a future post, possibly when the ruling is handed down this summer. My prediction is a 4-4 tie, with the votes lining up along ideological lines (Alito, Scalia, Thomas, and Kennedy to affirm, and Ginsburg, Souter, Stevens, and Breyer to reverse, with Roberts having to recuse himself since he participated in the D.C. Circuit's decision). A tie would affirm the D.C. Circuit, but could call into question the ruling's precedential value. Because of this, I don't think Hamdan is going to be the last word on the issue.