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Moussaoui case raises questions Original Source Link: (May no longer be active)
http://www.thechronicle.com/story_disp.htm?action=Search&story_id=aug05-19955&category=Opinionhttp://www.thechronicle.com/story_disp.htm?action=Search&story_id=aug05-19955&category=Opinion
Moussaoui case raises questions
The case of Zacarias Moussaoui now requires attention from Congress. In trying Moussaoui in federal court, rather than before a military tribunal, the government sought to demonstrate that America’s courts were a viable venue for the most complex terrorism cases. Instead, however, the case is demonstrating the opposite: that an al-Qaida defendant can tie the legal system in knots and force the government and the courts to choose between compromising important national-security interests and honoring basic constitutional trial norms. This is a terrible turn of events, one that will encourage more frequent use of the far less accountable military tribunal system. And that system is, in any event, not available for all possible defendants. Many foreign governments will not extradite people to them, and U.S. citizens, mercifully, are not permitted to be tried before them. For at least some terrorism-related cases, in short, the federal courts must be able to produce fair trials using predictable rules. Gleaning lessons from the Moussaoui case will require significant congressional study. At least two critical questions are already apparent.
The first is whether the constitutional right to defend oneself should apply in cases of extraordinary complexity involving large volumes of classified information. In the 1975 case of Faretta v. California, the Supreme Court declared that defendants have the right to defend themselves. But the court, which split at the time 6 to 3, was considering routine criminal cases, not international terrorism cases, where the consequence of self-representation is conducting one’s defense blind to critical information. Moussaoui’s decision to fire his lawyers means that he has no access to the classified information central to his case. His standby lawyers, who do have access to this information, have no access either to him or to whatever jury will eventually decide his fate. Letting Moussaoui represent himself has, in the name of liberty, reduced the chances of a fair and error-free trial. Congress should consider creating an exception to the right of self-representation for situations in which significant national-security barriers preclude even an able defendant from conducting a competent defense.
The second issue is what to do about witnesses detained abroad who have potentially exculpatory information in a domestic criminal trial. Classified information in federal courts is normally handled under a law called the Classified Information Procedures Act. Yet the Moussaoui case raises the question of whether this law adequately specifies how courts should deal with witnesses, as opposed to written material. Specifically, how should a court respond when a defendant wants to take testimony from a high-level al-Qaida terrorist being interrogated abroad? The accused has the constitutional right to call witnesses in his favor, yet the government reasonably regards some witnesses as unacceptably risky to produce in public. And while current law gives the courts some guidance in handling this situation, its broad language largely leaves it to the discretion of the individual judges — which leads to confusion and unpredictability. One possible fix would be a statute allowing the judge to give the jury a declassified summary of the testimony a witness would likely have given — a summary that errs on the side of generosity to the defendant’s account of events.
Congress has sat on the sidelines far too long as important decisions were made concerning the legal response to 9/11. The Moussaoui case offers an opportunity to play a more constructive role.
— Washington Post
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